R v Diallo & Ors (No 1)

On the second day of a pre-trial hearing, that is proceeding in advance of the trial of five young men charged with murder, I directed that the Court be open. Because three of the five accused men were under eighteen years of age at the time of the events giving rise to the murder charge, the Court had been closed from time to time during earlier directions hearings and on the first day of the pre-trial hearing. I indicated I would provide reasons for opening the Court at a later date. These are those reasons.

The allegation of murder arises from events on or about 1 September 2021. At that stage:

The two other accused men (Messrs Diallo and Karise) were adults at the time of the killing. All of the accused are now adults. AD and YA are now just over twenty years of age and AG is now aged about twenty years and five months.

Section 10 of the Children (Criminal Proceedings) Act 1987 (NSW) (“the Act”) provides:

Section 3 of the Act defines a child as “a person who is under the age of 18 years”.

On a plain or literal reading of the text of s 10 itself, the requirement to exclude people who have no direct interest in the proceedings – that is, to close the court to the public – is enlivened when the court is dealing with a person who is under eighteen at the time of the proceedings. That is because the section is directed to “criminal proceedings to which a child is a party.” None of the parties to the present proceedings – including AD, YA or AG – is a child.

That construction is strengthened when one considers other sections of the Act. For example, s 15A(1)(a) and (b) prohibit the publication of the name, or material that may identify, a person who is a witness or involved in criminal proceedings if “the person was a child when the offence to which the proceedings relate was committed”.

Senior Counsel for AG drew my attention to the recent decision of Dhanji J in R v JM (No 2) [2024] NSWSC 771. In relevantly similar circumstances – that is, the accused was a child at the time of the offence but an adult at the time of the trial – his Honour decided (at [9]) “the Court will not be closed”. His Honour undertook a typically helpful analysis and said at [2]-[4]:

Ultimately Dhanji J did not reach a concluded view on the issue but determined, correctly I think, that he was bound by a decision of the Court of Criminal Appeal in GBB v R [2019] NSWCCA 296. His Honour noted at [9] that he did “not intend in any way to suggest that I would come to some other conclusion were I not so bound”. In fact, his Honour thought “the analysis in which I have engaged would tend to suggest I would come to the same conclusion”.

In GBB v R, counsel for the applicant sought an order that the Court of Criminal Appeal be closed to the public for the hearing of his appeal. At the time of the offending the applicant was “some weeks short of his seventeenth birthday” and he was sentenced in the District Court “shortly before his eighteenth birthday”. Basten JA, with whom Macfarlan JA and Campbell J agreed, said (with footnotes omitted):

Senior Counsel for YA submitted, again correctly I think, that this passage was binding.

The text of s 10, a consideration of the different language employed in s 15A, the authorities to which my attention was drawn, as well as the fundamental requirement that our courts remain open to the public, all favoured an order that the Court should not be closed during the pre-trial hearing and the trial itself.

There may be specific exceptions to that – for example, if a child is to give evidence or sensitive evidence is adduced – but I formed the firm view that the Court ought not to be closed and made orders accordingly.