DPP v Q P X (Ruling) [2014] VSC 211 (28 March 2014)

DIRECTOR OF PUBLIC PROSECUTIONS

v

QPX

JUDGE:	BONGIORNO JA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2014
DATE OF JUDGMENT:	28 March 2014
CASE MAY BE CITED AS:	DPP v QPX
MEDIUM NEUTRAL CITATION:	[2014] VSC 211

CRIMINAL LAW – Sentencing – Suppression order – ‘necessary’ – ‘safety of any person’ – Open Courts Act 2013 s 4; s 18(1)(c)

THE IDENTITIES OF THE DEFENDANT IN THIS CASE AND CERTAIN OTHER PERSONS HAVE BEEN SUPPRESSED BY A PROCEEDINGS SUPPRESSION ORDER PURSUANT TO THE OPEN COURTS ACT 2013

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr RA Elston SC	Office of Public Prosecutions
For the Accused	Mr P Morrissey SC	Slades & Parsons Solicitors
For the Department of Human Services	Mr S Gelfand
For the Herald and Weekly Times	Mr J Quill and Mr J Cashen	Kelly Hazell Quill

1 HIS HONOUR: On 21 August 2012 Coghlan JA granted a suppression order with respect to this case pursuant to the provisions of the Supreme Court Act 1958, the then applicable statute. It suppressed the identity of the defendant as a party to this proceeding or the Magistrates’ Court proceeding of 21 August, thus preventing any publication of her name or any information derived from those proceedings which identified her. That order is still in force.

2 During the hearing of the plea in this case an application was made on behalf of the publisher of the Herald Sun to revoke that suppression order. However, at that time it was also (at least tacitly) accepted that a suppression order was necessary in the interests of justice, to maintain the integrity of a then part-heard trial before Lasry J where similar issues to those in this case were, or might have been, likely to be raised. It, too, was a case involving the death of a child. Accordingly, the operation of Coghlan JA’s order was extended to 25 March 2014. It was expected that by that date Lasry J’s trial would have concluded. In fact, that trial was not concluded by that date and the suppression order was continued until today, 28 March. Lasry J’s trial has now concluded so that the order is no longer necessary in the interests of justice with respect of that trial. However, it is now sought to be maintained, even if modified, on the ground that it is necessary to protect the safety of a number of persons, namely the defendant and her surviving children.

3 On 25 March Mr Quill, solicitor for the publishers of the Herald Sun, appeared to make submissions about the suppression order. He accepted then that, whilst Lasry J’s trial was continuing, the suppression order should remain in place, but submitted that, upon the conclusion of that trial, it should be lifted. He referred to communications he had had with the deceased child's father and some members of his family, to the effect that they were opposed to the continuation of the suppression order. He also referred to a number of other matters, some of which have now been put before the Court by the deceased child’s father himself. Mr Morrissey SC for the defendant stated his client’s position, which was that the suppression order should continue.

4 Also present on 25 March was a solicitor from the Department of Human Services who sought leave to appear to put before this Court DHS material concerning the welfare of the deceased child’s siblings who are now in the care of their father. There was no objection to his appearance and, having regard to DHS's involvement in the matters with which this case is concerned it appeared appropriate for the Court to have his assistance. He was given leave to appear amicus curiae. In that capacity he sought to file two affidavits. He was permitted to do so.

5 The first of those affidavits was of Ms Lucy Karabidian, a senior child protection practitioner from DHS. Her affidavit detailed the history of the children’s contact with DHS and the probable proceedings which will be taken by DHS in respect of them. She drew attention to the provisions of s 534 of the Children Youth and Families Act 2005 concerning the publication of matters concerning those children.

6 The other affidavit was of Dr Russell John Pratt, a psychologist and senior officer of DHS. He deposed to his extensive contact with the deceased’s family since mid to late 2012. His affidavit is detailed and thorough as to his opinions, particularly concerning the effect of publicity on the surviving male child, who is now 4 years of age. Dr Pratt said:

7 Dr Pratt also referred to a number of other matters concerning the surviving male child's ongoing healthy development. Further, he expressed the opinion that disclosure of the names of the children and their mother could seriously jeopardise the mother’s ability to be emotionally well enough to eventually have contact with her children and may be significantly so detrimental to her mental health that she may be unable to participate in a program being devised by Dr Dwyer, a consultant to DHS, to that end.

8 At the conclusion of the mention on 25 March I directed the Crown to inform the children’s father that the Court would hear anything he wished to put before it as to these matters when the question of the suppression order was again reviewed before sentencing the defendant today, 28 March. This direction was to ensure that the father’s right to be heard was communicated directly to him.

9 The prosecutor informed the Court this morning that the father had been informed of my direction and had provided a written unsworn statement setting out his position. That statement is a comprehensive account of his view as to the suppression order. He detailed his love and care for his children and his concern that his deceased daughter, ‘has just disappeared’. He said that he thought the other surviving children deserved to be told the story of their mother and sister at an appropriate time.

10 The document also set out the father’s financial concerns for himself and his children and expressed the view that he wished to set up a fund to provide comfort for his surviving daughter as she grows up. He said that although lifting the suppression order may put his family under public scrutiny that did not concern him as he has ‘...done nothing wrong’. He wants to talk publically about his family, which he says he cannot do if the suppression order remains. Also at today’s hearing Mr Cashen, for the Herald Sun, repeated his client’s position and submitted that if the suppression order were not lifted completely, it should nevertheless be seriously modified.

11 The case for the continuation of the suppression order rests largely on the opinion of Dr Pratt already referred to; that of Dr Carol Harvey, a psychiatrist who has examined the defendant; and that of the defendant's case manager at NWAMHS, Ms Patricia Toczek.

12 Referring to the effect on the defendant's mental health, Dr Harvey said in a recent report, dated 17 February 2014:

14 Suppression orders are now governed by the Open Courts Act 2013. Section 4 of that Act creates a statutory presumption in favour of the disclosure of information to strengthen and promote the principles of open justice and communication. It sets out grounds upon which suppression orders might be made notwithstanding that presumption.

15 The grounds upon which a suppression order relevant to this case might be made are set out in s 18 of the Act. They include the ground set out in s 18(1)(c), that the order is necessary to protect the safety of any person. Accordingly, the order must be necessary: not merely ‘convenient, reasonable or sensible’.[1] Without the order, the safety of a person or persons must be endangered. The protection of a person's safety implies the defending or shielding of that person from injury or danger. That danger might involve danger of physical harm or it might involve danger to a person's psychological health or a combination of both. There is no warrant to qualify the meaning of the word ‘safety’ in s 18(1)(c) by confining it to physical safety. Psychological harm to a person may be as serious or worse than physical harm. In any event psychological harm may well create a serious danger of physical harm, as the evidence in this case suggests.

16 I am satisfied that, having regard to the expert evidence before the Court, suppression of the identities of the defendant and the surviving children is justified to protect her and their safety. There will be a suppression order in appropriate terms. To be effective that order must not only prevent the identification of the defendant and the surviving children, but also the identification of the deceased child. The order will remain in force for five years, unless revoked earlier. The order of Coghlan JA of 21 August 2012, being now obsolete in light of this decision, will be revoked.

Supreme Court of Victoria