Supreme Court New South Wales Medium Neutral Citation: R v JM (No 2) [2024] NSWSC 771 Hearing dates: 20 May 2024 Date of orders: 20 May 2024 Decision date: 20 May 2024 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: The Court will not be closed. Catchwords: CRIME – murder – wounding with intent to cause grievous bodily harm – Judge alone trial – question as to whether the Court should be closed – where accused was a child at the time of the alleged offending – where accused no longer a child – little in the way of authority on the question – bound by a decision of a superior court – Court to be open Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Cases Cited: GBB v R [2019] NSWCCA 296 Category: Procedural rulings Parties: Rex (Crown) JM (Accused) Representation: Counsel: B Campbell (Crown) J Watts (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Aboriginal Legal Service (NSW) (Accused) File Number(s): 2022/155260 Publication restriction: Statutory Non-Publication Order re identity of the Accused or any person who was a child at the time of the events EX TEMPORE JUDGMENT (REVISED) 1. HIS HONOUR: The matter of JM is before me for trial in relation to a charge of murder and a charge of wounding with intent to cause grievous bodily harm. The trial is listed to commence today. At the outset of the proceedings an issue has been raised as to whether s 10 of the Children (Criminal Proceedings) Act 1987 (NSW) ('the Act") applies so as to require that the Court be closed. By way of background, the accused was 17 years and some months at the time at which the offence is alleged to have been committed. He is at the present time 19 years and some months old. Section 3 of the Act provides a number of definitions, including 'child', which is defined to mean, "A person who is under the age of 18 years". As a corollary to that definition, 'adult' is defined to mean, "A person who is of or above the age of 18 years". The accused was, therefore, a child at the time the offence is alleged to have been committed, and an adult at the present time within the meaning of the Act. 2. Section 10(1) of the Act provides as follows: 10 Exclusion of general public from criminal proceedings (1) While a court is hearing criminal proceedings to which a child is a party – (a) any person (other than a person referred to in paragraph (b) or (c)) who is not directly interested in the proceedings is to be, unless the court otherwise directs, excluded from the place where the proceedings are being heard, and (b) any person who is engaged in preparing a report on the proceedings for dissemination through a public news medium is, unless the court otherwise directs, entitled to enter or remain in the place where the proceedings are being heard, and (c) any family victim is entitled to enter or remain in the place where the proceedings are being heard. Read literally, the provision requires or is generally described as a closed court where the person is a child at the time the proceedings are being heard but not otherwise. In other words, on the literal reading of s 10(1) the proceedings in the present matter would not be closed. 1. That literal reading results in potentially unusual outcomes. In particular, whether proceedings are held in open or closed court may be the result of happenstance, that is, whether proceedings are held in open or closed court may be impacted by the length of time it takes for any trial to be listed. Circumstances may be such that a trial or other proceeding commences at a time when the accused is a child but continue to a point of the party's 18th birthday, with the result that part of the proceedings would be in closed court and part of the proceedings would be in open court. 2. Whether that is an absurd result may be debatable, particularly when read in the context of s 15A of the Act. That section prohibits the publication or broadcast of proceedings "in a way that connects the person with criminal proceedings", if, amongst other things, the "proceedings relate to the person and the person was a child when the offences to which the proceedings relate was committed". For completeness, s 15A(1) in full provides as follows: 15A Publishing and broadcasting of names prohibited (1) The name of a person must not be published or broadcast in a way that connects the person with criminal proceedings if – (a) the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed, or (b) the person appears as a witness in the proceedings and was a child when the offence to which the proceedings relate was committed (whether or not the person was a child when appearing as a witness), or (c) the person is mentioned in the proceedings in relation to something that occurred when the person was a child, or (d) the person is otherwise involved in the proceedings and was a child when so involved, or (e) the person is a brother or sister of a victim of the offence to which the proceedings relate, and that person and the victim were both children when the offence was committed. (2) This section applies only to the publication or broadcast of a person's name to the public, or a section of the public, by publication in a newspaper or periodical publication, by radio or television broadcast or other electronic broadcast, by the Internet, or by any other means of dissemination. (3) The publication of information to an Internet website that provides the opportunity for, or facilitates or enables, dissemination of information to the public or a section of the public (whether or not the particular publication results in the dissemination of information to the public or a section of the public) constitutes the publication of information to the public or a section of the public for the purposes of this section. (4) This section 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. (5) A reference in this Division 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) A reference in this Division 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 Division 3 of Part 6 of Chapter 6 of the Criminal Procedure Act 1986. (6A) A reference in this Division to criminal proceedings includes a reference to a hearing under Part 4C of the Children (Detention Centres) Act 1987. (7) A person who publishes or broadcasts the name of any person the publication or broadcasting of which is prohibited by this section 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). (8) Proceedings for an offence against this section that are brought before the Local Court must be commenced within 2 years of the date of the alleged offence. 1. Thus, if, in the example I have postulated, the Court went from being closed to being open, that would not affect the ongoing application of s 15A(1). That is, the only change would be the Court being opened while restrictions on publication would remain. 2. The other matter to be drawn from s 15A(1) is the contrast in the terms of the provision. Section 15A, as can be seen, is explicit in addressing the situation that the person was a child "when the offence to which the proceedings relate was committed". It can be immediately observed that, had a similar form of operation been intended with respect to s 10, similar words might have been used. The question which has arisen is one that one would presume has arisen many times before. I have been informed, and my own understanding is, that s 10 has been generally interpreted so as to close the Court when the party was a child at the time that they were alleged to have committed the offence charged. Be that as it may, that does not appear to accord with an ordinary reading of the provision. Despite the frequency with which this issue, one might have thought, would arise, there appears to be relatively little in the way of authority on the question. 3. In the limited time available this morning, one case has been brought to my attention, that being the decision of GBB v R [2019] NSWCCA 296. There Basten JA said at [3] as follows: "At the commencement of the proceedings in this Court, counsel for the appellant sought an order closing the court to members of the general public, pursuant to s 10 of the Children (Criminal Proceedings) Act 1987 (NSW). That section provides a general rule, subject to the court directing otherwise, excluding the public from the place where criminal proceedings are being heard, in the case of "criminal proceedings to which a child is a party": s 10(1). The appellant is no longer a child and therefore the statutory exclusion is not engaged by reason of the appellant's age. Whilst the complainant is still a child, she is not a party to the proceedings." 1. As is apparent, his Honour took a literal reading of the provision. There was no consideration given with respect to any potential counter arguments such as a potential broad reading which might be given to the words, "criminal proceedings to which a child is a party". It may be that those words could be construed so as to mean that an accused who was a child at the time they were joined in criminal proceedings is engaged in "criminal proceedings to which a child is a party". Nonetheless, it appears that the issue was squarely raised in GBB v R, and decided against the applicant in that case. In circumstances where the issue has been raised in determined by a court superior in the hierarchy to this Court I am of the view that I am bound by that decision. 2. Given the analysis above, I should add to I do not intend in any way to suggest that I would come to some other conclusion were I not so bound. Rather, the analysis in which I have engaged would tend to suggest I would come to the same conclusion. Ultimately, however, it is not necessary that I come to any final view, other than that I am bound by the decision in GBB v R, with the result that a s 10 applies in its terms. That being the case, the Court will not be closed. ********** Amendments 01 July 2024 - minor error fixed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2024