R v JM (No 2)

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.

Section 10(1) of the Act provides as follows:

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.

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:

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.

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.

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:

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.

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.