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  Home :: 2006 December :: Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386
 
 
 

State Crest
New South Wales
Court of Criminal Appeal




CITATION: Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386

 
JUDGMENT DATE: 

1 December 2006

JUDGMENT OF: Spigelman CJ at 1; Basten JA at 38; Hislop J at 39

DECISION: Application dismissed.


CATCHWORDS: CRIMINAL LAW - PRACTICE AND PROCEDURE – Publication Orders – Applications for orders under s11(4B) of the Children (Criminal Proceedings Act) 1987 are confined to the time and court exercising the sentencing discretion. - CRIMINAL LAW - PRACTICE AND PROCEDURE – Publication Orders - Children (Criminal Proceedings Act) 1987, s11 – unnecessary for courts to make orders to achieve the same objective as s11 – protection of identity of child. - CRIMINAL LAW - PRACTICE AND PROCEDURE – Publication Orders – Non-publication orders and pseudonym orders can operate alongside s11 if they are made to achieve other objectives.

LEGISLATION CITED: Children (Criminal Proceedings Act) 1987, ss 11, 11(1), 11(4)(c), 11(4B), 11(4C)
Crimes Act 1900, ss 61J, 61JA, 66C(1)
Criminal Procedure Act 1986, s292

CASES CITED: Markisic v Vizza [2002] NSWCCA 53

PARTIES: John Fairfax Publications Pty Ltd (Applicant)
Regina, MSK, MMK, MRK & MAK (Respondent)

FILE NUMBER(S): CCA 2006/2120

COUNSEL: D. Sibtain (Applicant)
M. Sexton SC, J. Caldwell (Regina), P.Hammill SC (MSK & MAK), C.Craigie SC, C.Smith (MMK & MRK) (Respondent)


SOLICITORS: Leanne Norman, Freehills (Applicant)
S Kavanagh (Director of Public Prosecutions) (Regina), K. Kyriacou (MSK & MAK), A.I. Wunderlich & Co (MMK & MRK) (Respondent)






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IN THE COURT OF
CRIMINAL APPEAL
                          2006/2120

                          SPIGELMAN CJ
                          BASTEN JA
                          HISLOP J

                          Friday 1 December 2006
APPLICATION BY JOHN FAIRFAX PUBLICATIONS PTY LTD RE MSK, MAK, MMK AND MRK
Judgment
1 SPIGELMAN CJ: John Fairfax Publications Pty Ltd (“the Applicant”) seeks the following orders:
          “1 An order pursuant to s11(4B) of the Children (Criminal Proceedings) Act 1987 (NSW) authorising the publication of the names of the prisoners known as MRK and MMK in connection with the charges for which they were convicted in proceedings numbers 70202/03 and 70203/03.
          2 An order that the order made by Sully J on 27 June 2003 in proceedings numbers 70201/03, 70002/03, 70203/03 (which order was continued by Sully J on 22 April 2004 in each of those proceedings numbers 2004/1711 and 2004/1712 and on 30 June 2005 in 2005/885 and 2005/3), prohibiting the publication of the names of the prisoners known as MSK, MAK, MRK and MMK, be varied so as to permit the publication of the names of those prisoners in connection with the charges for which each of them was convicted in those proceedings.
          3 An order that the order made by Hidden J on 12 May 2005 in proceedings numbers 2003/158, 2003/3 and 2003/149 (which order was varied on 21 July 2005 and continued on 5 April 2006 by his Honour), prohibiting the publication of the names of the prisoners known as MSK, MAK and MMK, be varied so as to permit the publication of the names of MSK and MAK in connection with charges for which each of them was convicted in proceedings numbers 2003/158 and 2003/3.”
2 In April 2004, each of MSK, MAK, MRK and MMK was convicted of multiple counts of aggravated sexual assault in company, in contravention of s61JA of the Crimes Act 1900 for conduct which occurred in July 2002. 3 All of the offenders are brothers. The offences were committed, generally, in each other’s company. At the time of the offences for which they were convicted, each of MSK and MAK was an adult. However, at those times MMK was aged 16 years and MRK was aged 17 years and eight months. 4 Subsequently, MSK was convicted of four counts of aggravated sexual assault in contravention of s61J of the Crimes Act 1900, and pleaded guilty to a fifth count. Furthermore, MAK pleaded guilty to one count of aggravated sexual assault in contravention of s61J of the Crimes Act 1900. 5 MMK pleaded guilty on a subsequent occasion to a charge of sexual intercourse with a person under the age of 16 years, contrary to s66C(1) of the Crimes Act. The Crown appeal against sentence was dismissed. 6 On 1 November 2006, this Court made orders for the separate determination of the issues that had arisen in the appeal concerning standing and the competency of the application. This judgment relates to those separate issues.

      The Statutory Discretion
7 The first order sought invokes s11(4B) of the Children (Criminal Proceedings Act) 1987 (“the Act”), which confers power on the Court to make an order overturning the effect of the prohibition contained in s11(1) of the Act. It is relevant to set out the whole of the section:
          “11(1) The name of any of the following persons must not be published or broadcast in a way that connects the person with the criminal proceedings concerned:
              (a) any person who:
                  (i) appears as a witness before a court in any criminal proceedings, or to whom any criminal proceedings relate, and
                  (ii) was a child when the offence to which the proceedings relate was committed,
              (b) any person who is mentioned in any criminal proceedings in relation to something that occurred when the person was a child,
              (c) any person who is otherwise involved in any criminal proceedings and was a child when the person was soinvolved,
              (d) any person who is a brother or sister of a victim of the offence to which the proceedings relate, where that person and the victim were both children when the offence was committed.
          (1A) The prohibition in subsection (1) applies to the publication or broadcast of the name of a person:
              (a) whether the publication or broadcast occurs before or after the proceedings concerned are disposed of, and
              (b) even if the person is no longer a child, or is deceased, at the time of the publication or broadcast.
          (2) A reference in subsection (1) to criminal proceedings does not include a reference to proceedings held before a court other than the Children’s Court in respect of a traffic offence.
          (3) A person who publishes or broadcasts the name of any person the publication or broadcasting of which is prohibited by subsection (1) is guilty of an offence.
          Maximum penalty: 500 penalty units (in the case of a corporation) or 50 penalty units or imprisonment for 12 months, or both, in any other case.
              (4) Subsection (1) does not prohibit:
              (a) the publication or broadcasting of an official report of the proceedings of a court that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by subsection (1), or
              (b) the publication or broadcasting of the name of a person:
                  (i) in the case of a person who is a child under the age of 16 years at the time of publication or broadcasting—with the consent of the court concerned,or
                  (ii) in the case of a person who is of or above the age of 16 years at the time of publication or broadcasting—with the consent of the person, or
              (c) the publication or broadcasting of the name of a person who has been convicted of a serious children’s indictable offence, if the publication or broadcasting is authorised by a court under subsection (4B).
          (4A) The consent of the court referred to in subsection (4) (b) (i) shall not be given except with the concurrence of the child or (if the child is incapable of giving concurrence) where the court is of the opinion that the public interest so requires.
          (4B) A court that sentences a person on conviction for a serious children’s indictable offence may, by order made at the time of sentencing, authorise the publication or broadcasting of the name of the person (whether or not the person consents or concurs).
          (4C) A court is not to make an order referred to in subsection (4B) unless it is satisfied:
              (a) that the making of such an order is in the interests of justice, and
              (b) that the prejudice to the person arising from the publication or broadcasting of the person’s name in accordance with such an order does not outweigh those interests.
          (4D) The burden of establishing the matters referred to in subsection (4C) (a) and (b) lies on the prosecuting authority.
          (4E) A court that makes an order referred to in subsection (4B) must indicate to the person, and make a record of, its reasons for doing so.
          (5) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
          (6) For the purposes of this section, a reference to a person who appears as a witness before a court in any criminal proceedings includes a reference to a child who gives evidence in the form of a recording in proceedings in accordance with Part 3 of the Evidence (Children) Act 1997.”
8 The offences committed by this group of brothers has achieved a considerable degree of public notoriety. No doubt for that reason it appeared to be common ground that publication of the surname of the brothers, who were adults at the time of the offences, would necessarily lead, at least in the present circumstances, to the identification of the other two brothers, who were children at the time of the offences. 9 The heinous nature of the systematic course of predatory conduct indicates that this is an appropriate case in which the additional element of public shaming could fulfil the function of retribution and also the function of general deterrence that criminal sentences are designed to serve. There may well be a strong case for the exercise of the discretion under s11(4B) of the Act, on the basis of the test set out in s11(4C). However, legal points have been raised and, if they are good points, this Court is obliged to uphold them. 10 All relevant criminal proceedings, including appeals, have now been completed. There is no outstanding charge for a “serious children’s indictable offence” as defined in s3 of the Act. Nor is there any outstanding sentence proceedings or appeal with respect to any such offence by MMK or MRK. 11 The Applicant seeks to invoke the exception to the prohibition in s11(1) set out in s11(4)(c). This requires the Court to make an order under s11(4B). A number of objections have been the subject of submissions to this Court questioning the standing of the applicant and the jurisdiction of the Court to make the order. 12 One of those objections is, in my opinion, determinative of the issue. Section 11(4B) empowers “a court that sentences a person” to authorise publication “by order made at the time of sentencing”. I find these words to be intractable. All relevant sentencing proceedings and appeals have been concluded. It is no longer possible for any order to be made “at the time of sentencing” by “the court that sentences,” either MMK or MRK. 13 Although it was not relied upon by the Applicant, a power of this character may be subject to flexibility in terms of the timing of the exercise of the power by force of s48 of the Interpretation Act 1987, which provides:
          “48(1) If an Act…confers or imposes a function on any person or body, the function may be exercised…from time to time as occasion requires.”
14 However, as with all such provisions in the Interpretation Act, s48 operates subject to any contrary intention in the particular legislation. In my opinion, the words “a court that sentences” and “by order made at the time of sentencing” constitute such a contrary intention. 15 The legislature gave careful attention to the circumstances in which publication of the name of a child convicted of a serious children’s indictable offence could occur. Section 11(4B) cannot be invoked until after a conviction. The question of timing with respect to this discretion was clearly in the forefront of the mind of the drafter. 16 More significantly for present purposes, is the fact that there is a perfectly understandable policy basis for requiring the relevant discretion to be exercised at the time of sentencing and at no later time. It is at the time of sentence that the Court reviews the objective gravity of the offence, considers the impact on victims, assesses the weight to be given to general deterrence, acquires the full range of evidence about the subjective features of the offender and assesses the prospects of rehabilitation. 17 It is, accordingly, during the sentencing process that the Court is apprised, in the most detailed manner, of the full range of matters relevant to determining whether publication is “in the interests of justice” within s11(4C)(a). It is also at that time that the Court is in the best position to make the judgment within s11(4C)(b) as to the prejudice to the person convicted of the offence from publication of his or her name. 18 Furthermore, publication of the names may, of itself, be relevant to the sentencing process. There is a significant public shaming element involved in such publication. The power to authorise publication should not be exercised for the purpose of punishment, however publication does have an adverse consequence which could be taken into consideration in the exercise of the sentencing discretion. That is to say where, as part of a distinct statutory process, public shaming is to occur, that could influence the sentencing judge to ameliorate the sentence that would otherwise be appropriate. 19 It appears that Parliament made a judgment that the court that was fully apprised of matters relevant to the exercising of the sentencing discretion was the appropriate court to determine the issue of whether publication should be authorised. 20 On this basis, this Court should give effect to the natural meaning of the words in s11(4B). Parliament intended to confine applications for an order of this character to the time and to the court which undertakes the sentencing task. That time has in all relevant respects passed. 21 The Applicant made a submission to the effect that there were practical difficulties associated with the Court not being able to make an order after the completion of a sentence hearing. I do not see that any of the suggested practical difficulties exist. It was suggested that a convicted offender could resist an application to authorise publication on the basis that s/he intended to lodge a conviction appeal and that the identification of the offender could prejudice any subsequent trial. The Court has sufficient flexibility to adapt to circumstances of this character. For example, the order authorising publication could be made but stayed until such time as the appeal was determined and any new trial concluded.

      The Orders of the Court
22 The second order sought by the Applicant is for variation of the order made by Sully J on 27 June 2003 and continued on 22 April 2004 and 30 June 2005. 23 The Applicant’s submissions make it clear that it is concerned with the pseudonym orders made by Sully J, namely an order that the Respondents be referred to only by their initials. His Honour had made earlier orders preventing publication of the names of the accused and of the complainants pursuant to s292 of the Criminal Procedure Act 1986. However, those orders were varied. 24 The pseudonym order available to the Court is not dated 27 June 2003, but 27 November 2003. It was that order which his Honour continued on 22 April 2004. 25 The order, including a reference to another offender, was:
          “That until the further order of this or of a higher court, any report or any part of the evidence or other procedure connected with the joint trial of MMK, MRK and RS, or the joint trial of MSK and MAK, is to refer to those five persons only by their initials that I have myself used and is not in any other way personal and particular to any one of the five to identify any such person.”
26 Section 11(1) of the Act is self-executing. The prohibition contains its own penalty in subs(3), its own exclusions in subs(4) and a mechanism for the application of those exclusions in subss(4A)-(4E). It is unnecessary and, generally, would be inappropriate, for the Court to make an order for the purpose of serving the same policy objectives as the scheme for which Parliament has legislated in s11. 27 It is not uncommon for the courts to make orders requiring the use of pseudonyms in cases involving children, as if to give effect to the terms of s11(1) of the Act. Section 11 confers no power to make such an order. The power may be found elsewhere, but the order itself is otiose. However, non-publication orders and pseudonym orders can be made for other purposes. This could include, as apparently was the case at the time that Sully J and Hidden J made their orders, the objective of ensuring a fair trial in subsequent proceedings for other offences, or in view of the prospect of an appeal and a new trial, with respect to the same offences. To avoid confusion, it would be preferable if a court, concerned to make the public and media aware of the operation of s11, gave directions drawing attention to the obligation imposed by the section and indicating the manner in which the court proposed to give effect to it. If there were a separate application for a non-publication order, that could then be addressed on its merits and the Court would no doubt identify the purpose which made the order appropriate, quite apart from the statutory prohibition imposed by s11. 28 As set out above, s11(4)(a) makes it clear that there is no prohibition on the publication of an official report of proceedings by the Court, which report would in the normal course contain the names of the accused, including in the very title of the case. Courts have adopted a practice of publishing only the initials of offenders, often to protect the identity of the complainants. However, courts have also adopted such a practice with a view to ensuring that the policy objectives of s11(1) of the Act are in fact served. Publication in digital form of the judgments of the Supreme Court on the Court’s website are, by their very nature, capable of such widespread transmission that the policy objective of the Act could readily be undermined unless the Court adapted its procedures in the way it does. Such a practice does not, however, justify an order in the same terms directed to third parties. 29 The Court should not, in the normal course, make orders of this character which carry with them the prospect of contempt proceedings of a character parallel to any proceedings for a contravention of s11 of the Act. In my opinion, in the normal case where no issue or purpose is to be served by an order other than the purpose of protecting the identity of a child, for which s11 makes provision, then a non-publication order should not be made. The Act should be allowed to operate in accordance with its terms and with the sanctions which Parliament has prescribed. 30 There does not appear to me to be any continuing purpose served by the pseudonym order of Sully J other than the purpose of s11 of the Act. I would have made order 2, although it would have been necessary to vary the terms of the order so that it did not override the continuing operation of s11. The proposed order was no doubt drafted in those terms because it was intended to be consequential on a variation of the prohibition in s11 made by an order under s11(4B). However the applicant made it clear that, if it did not obtain an order under s11(4B), it would not press order 2. 31 Order 3 sought by the Applicant relates to an order made by Hidden J on 12 May 2005. That order was expressed in terms of preventing the publication of the names of the accused. It was not in terms a pseudonym order. However, my above analysis of the order made by Sully J applies equally to this order. I would have made order 3 (subject to the necessary variation to avoid inconsistency with s11), but for the fact that the Applicant did not seek the order unless it obtained the order under s11(4B).


      Costs
32 Counsel for MMK and MRK made an application for costs, in which counsel for MSK and MAK joined. The Respondents relied upon the Court’s implied power to control an abuse of process. Counsel relied on Markisic v Vizza [2002] NSWCCA 53 as authority. 33 In the case of MSK and MAK I can see no basis for an order for costs. As adults at the time of the offending, they are the unintended beneficiaries of a legislative scheme designed to protect MMK and MRK. They had an interest sufficient to justify their joinder. However their active participation in the proceedings was not required and no order for costs in their favour should be made on any view. 34 With respect to the application of MMK and MRK, the submissions did not identify in any respect what it was that could have constituted an abuse of process sufficient to invoke the implied power affirmed by this Court in Markisic. 35 The most that could be said was that, in view of the jurisdictional issue on which the Applicant has failed, the proceedings were at all times hopeless. Indeed the original submissions filed in support of the application failed to recognise in any way the jurisdictional issue that has proven to be decisive. 36 Nevertheless, a successful jurisdictional objection is not enough to justify a finding of abuse of process for the purpose of making a special order as to costs. 37 The order I propose is:
          Application dismissed.
38 BASTEN JA: The application in this matter should be dismissed, with no order as to costs, for the reasons given by the Chief Justice. 39 HISLOP J: I agree with the Chief Justice.
      **********
 


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Pedophilia and sexual abuse of children in Australia