R v Dillon

I am considering a motion by Nationwide News Pty Limited and the 9-Network Australia Pty Limited to discharge a non-publication order I made on 6 December 2019, at the time I passed sentence on Joshua Dillon and James Rivera for affray.

In the course of my reasons for passing sentence, I referred to the shocking reprisal killing of Joshua Dillon’s younger brother, Brayden Dillon. He was, at the time of his death, a minor and the order I made, in broad terms, was that under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) there is to be no publication of Brayden Dillon’s name on the ground set out in s 8(1)(a) concerned with the administration of justice.

The news organisations bringing the motion point out that a person accused of Brayden Dillon’s murder is being tried by Justice Harrison without a jury.

Obviously, these cases, in particular relating to the reprisal killing of Brayden Dillon, have been a matter of legitimate public interest and, the news organisations’ wish to provide a full fair and accurate report of the trial before Justice Harrison which is, I will say, inhibited by the order made by me.

Mr Lewis of counsel, who appears for the applicant, has pointed out that the order I made, to adopt the language of Spigelman CJ from John Fairfax Publications v MSK and Ors [2006] NSWCCA 386, is “otiose” because s 15A of the Children’s Criminal Proceedings Act 1987 (NSW) of its own force prohibits publication of Brayden’s name by media organisations. There are exceptions to that rule, including where the child has died, which applies here, and the news organisation publishes the child’s name with the consent of the senior next of kin.

From the affidavit of Marlia Ruth Saunders sworn on 10 August 2020, in support of this application, I observe that the applicants are confident in their belief that they have the consent of Brayden’s mother to the publication of his name. I interpolate that she is the senior next of kin because, on the evidence led before me at the proceedings on sentence, the father of Joshua and Brayden and their mother separated when the boys were quite young and they were raised by her with little contact from the father, at least, up until the time of Brayden’s death. However, it is unnecessary for me to make a finding about that consent because, as I have said, the section operates of its own force as part of the written law of the State and, likewise, the exceptions to it operate of their own force. There is nothing to be gained from me making any finding in that regard, at this time.

I also accept that it was my expectation that those charged with Brayden Dillon’s murder would face trial by jury. In accordance with the usual practice of the Court I made the order to restrict the publication of my reasons on sentence until the completion of that trial. As there is no jury that order serves no good purpose and I will take the opportunity to discharge that non-publication order as well.

A third non-publication order I made to protect the whereabouts of Mr James Rivera should stand.

My orders are: