Waters v Pacific Publications Pty Ltd [1999] NSWSC 366 (23 April 1999)

Last Updated: 27 April 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Waters v Pacific Publications Pty Ltd [1999] NSWSC 366

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 12711/98

HEARING DATE{S): 20 April 1999

JUDGMENT DATE: 23/04/1999

PARTIES:

Leesa Waters (Appellant)

Pacific Publications Pty Limited (Respondent)

JUDGMENT OF: Studdert J

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER: Ms D. Sweeney

COUNSEL:

P. Saidi (Appellant)

T. Hale (Respondent)

SOLICITORS:

I.V. Knight (Appellant)

Bush Burke (Respondent)

CATCHWORDS:

Children

child care proceedings in Children's Court

restrictions on naming child to whom proceedings relate

statutory offence

elements of offence

whether guilty knowledge such an element

statutory construction

Children (Care and Protection) Act, 1986, s 68

ACTS CITED:

Children (Care and Protection) Act

Road Traffic Act, South Australia

Motor Traffic Act

DECISION:

Question raised by stated case answered in the negative; appellant to pay respondent's costs

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

STUDDERT J

Friday 23 April 1999

12711/98 LEESA WATERS v PACIFIC PUBLICATIONS PTY LIMITED

JUDGMENT

1 HIS HONOUR: This is an appeal by way of stated case from a decision of a magistrate in dismissing a prosecution brought by the appellant, Leesa Waters, against the respondent, Pacific Publications Pty Limited. The appellant brought the proceedings against the respondent in her capacity as an officer of the Department of Community Services, alleging a breach by the respondent of s 68(1) of the Children (Care and Protection) Act, 1986. (I shall refer to that Act as "the statute".)

2 The prosecution arose from the publication by the respondent in "New Idea" magazine of an article naming a child in respect of whom there had been proceedings under Pt 5 of the statute.

3 A copy of the article was annexed to the stated case. The article was published on 5 July 1997, and it was seemingly based upon an interview with the child's mother, quoting constantly from this source. The article related to events eleven years previously when the person interviewed had been involved in a marital dispute with her husband. It appears from the article that on 8 July 1986 the husband shot and killed his mother-in-law, wounded his father-in-law, and held the child of the marriage as a hostage. He was subsequently imprisoned and the article referred to the impact of his criminal behaviour upon the child's mother, who feared for the safety of the child and herself when the father was released from prison, and the trauma of the mother's separation from her child, who, the article disclosed, "was placed in foster care" at some time subsequent to the events in 1986.

4 The facts as found by the magistrate are recorded in para 2 of the stated case, although I substitute initials for the full names set out:

"On or about 5 July 1997 the respondent published in New Idea magazine an article entitled `P's Story: "He killed my mum... and now he's after me"'. Included in the published article was the name of RM (`R'), who is a child to whom Part 5 of the Act related. The article published by the respondent also contained the following details:

(i) That R's father had shot her grandmother during a siege on 8 July 1986 in which R was taken hostage by her father.

(ii) That R's mother, PM, found it increasingly difficult to look after R after the shooting and that R had been placed in foster care.

(iii) That R's mother, PM, suffered a breakdown and `turned to alcohol to ease her depression'. The article quotes PM as stating `when R was taken away, it broke my heart. I want her back desperately. I speak to her every week, it is the moment I live for. I've tried to get her back, but it is now up to her'.

(iv) That PM has received threats from R's father who is still in gaol and `the foster family caring for R has also received threats but they also aren't prepared to speak'.

(v) A note at the end of the article stated that `the NSW Department of Community Service says it is unable to comment to protect the identity of some of the individuals involved'.

In addition to the published words there were photographs of R as a baby with her mother and recent photograph of PM. The article was tendered in the proceedings and marked exhibit 1. A copy of that article is annexed and marked `A'.

There was no specific reference in the article to the actual care proceedings involving R."

5 The magistrate upheld a submission by the respondent at the conclusion of the appellant's case that no prima facie case had been established, stating the grounds of that decision in para 3 of the stated case:

"1. To establish an offence pursuant to s 68(1) of the Act the prosecution must establish that at the time of publication of the article the respondent:

(a) knew that there had been care proceedings or proceedings under Part 5 of the Act concerning the child; and

(b) that the article would identify that child in connection with those proceedings.

The grounds for that determination were:

(i) There is no legislative intention to exclude knowledge or intention demonstrated;

(ii) The available penalty of imprisonment indicates the seriousness of the offence; and

(iii) The context of s 68 in the Act indicates that it is not a regulatory type offence.

2. Section 68(1)(a) of the Act only prohibits the publication or broadcasting of a child's name in relation to proceedings under Part 5 of the Act, that is, in the present circumstances in relation to care proceedings in the Children's Court. The publication by a person of information about themselves, some or all of which information has been put before a Court in care proceedings, does not breach s 68 of the Act.

3. On the evidence the prosecution has not established:

(a) the requisite knowledge or intent referred to in (1);

(b) that the article published or broadcast the child's name in relation to proceedings under Part 5 of the Act."

6 The appellant contends that the decision reached by the magistrate involved error of law because:

(i) section 68(1) of the statute did not require proof of mens rea or guilty mind;

(ii) an offence was proved against the sub-section once the child was named in the article and was connected in it with the subject matter of relevant proceedings under the statute.

7 Section 68 provides:

"(1) The name of any child:

(a) who appears as a witness before the Children's Court in any proceedings under this Part,

(b) to whom any proceedings under this Part relate, or

(c) who is mentioned or otherwise involved in any proceedings under this Part,

shall not be published or broadcast, whether before or after the proceedings are disposed of.

(2) Any person who publishes or broadcasts the name of any child the publication or broadcasting of which is prohibited by subsection (1) is guilty of an offence.

(3) Subsection (1) does not prohibit:

(a) the publication or broadcasting of an official report of the proceedings of the Children's Court that includes the name of any child the publication or broadcasting of which would otherwise be prohibited by subsection (1), or

(b) the publication or broadcasting of the name of a child:

(i) in the case of a child who is under the age of 16 years at the time of publication or broadcasting with the consent of the Children's Court, or

(ii) in the case of a child who is of or above the age of 16 years at the time of publication or broadcasting with the consent of the child.

(4) For the purposes of this section, a reference to the name of a child includes a reference to any information, picture or other material that identifies the child or is likely to lead to the identification of the child."

(Emphasis added)

8 The crux of the offence alleged against the respondent was that it published the name of the child to whom proceedings under Pt 5 of the statute related.

9 Section 120 of the statute provides for punishment of an offence against s 68(1) by way of monetary penalty and/or imprisonment for a period not exceeding twelve months.

10 Before considering the competing submissions, it is desirable to examine the statutory context in which s 68 is to be found.

11 As its name would indicate, the statute is concerned with the care and protection of children. The statute is divided into a number of Parts, all of which reflect such statutory concern. I need not review the detail of the earlier Parts of the statute, but it is to be noted that Pt 3 deals inter alia with fostering, and that a child may be placed in foster care with the approval of the Minister or the Director General. Section 68 is located in Pt 5 which concerns "children in need of care", a class earlier defined in Pt 1 in s 10. Division 2 of Pt 5 provides for care applications which are to be dealt with in the Children's Court. Section 72, found in Div 4 of Pt 5, defines the powers and obligations of the Children's Court in respect of children in need of care. Section 72 expresses the type of orders that the court may make on a care application.

12 It is Div 3 of Pt 5 which is of particular significance for present purposes. It makes provisions for the conduct of hearings in the Children's Court and s 68 is in this Division. Section 65 provides for rights of appearance in proceedings under Pt 5 and s 67 provides for control of those who may attend the hearing of proceedings. The section empowers the court to exclude persons. Because of its significance for present purposes, I record s 67:

"(1) While the Children's Court is hearing proceedings under this Part with respect to a child:

(a) any person (other than a person referred to in paragraph (b)) who is not directly interested in the proceedings shall, unless the Children's Court otherwise directs, be 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 shall, unless the Children's Court otherwise directs, be entitled to enter and remain in the place where the proceedings are being heard.

(2) While the Children's Court is hearing proceedings under this Part with respect to a child:

(a) the Children's Court may direct the child to leave the place where the proceedings are being heard at any time during the proceedings if it is of the opinion that the prejudicial effect of excluding the child is outweighed by the psychological harm that is likely to be occasioned to the child if the child is allowed to remain there, and

(b) the Children's Court may direct any person (other than the child) to leave the place where the proceedings are being heard at any time during the examination of any witness if it is of the opinion that it is in the interests of the child that such a direction should be given.

(3) The powers exercisable by the Children's Court under subsection (2) (b) may be exercised even if the person to whom a direction under that paragraph is given is directly interested in the proceedings.

(4) If the Children's Court gives a direction under subsection (2)(a) with respect to a child, it shall also give a direction under subsection (2)(b) with respect to all persons who are engaged in preparing reports of the proceedings for dissemination through a public news medium."

13 Sections 69-71 are directed at procedural matters in relation to proceedings under Pt 5 and I need not express the detail of those provisions.

14 The above statutory review suffices for present purposes and I now turn to consider the first of the matters argued, namely whether to establish an offence against s 68(1) it was incumbent upon the prosecution to prove guilty knowledge, in the sense of an awareness that there had been care proceedings under Pt 5 of the statute.

15 Mr Saidi, on behalf of the appellant, submitted that having regard to the subject matter of the statute, and the particular subject matter of s 68, it was not incumbent on the appellant to prove mens rea in the circumstances of the publication. He submitted that the section was analogous to a statutory provision relating to public health or public safety. He also relied upon the absence of any expression in s 68 that conveyed a need to prove knowledge or intention. It sufficed, Mr Saidi argued, to prove an intention to publish the article and that intention was, of course, proved by the circumstances of the publication itself.

16 Mr Saidi invited reference to the law of contempt by publication, which, he submitted, was analogous. There lack of intent to prejudice court proceedings was no defence once a publication was proved to have interfered with a fair trial: see Borrie & Lowe The Law of Contempt, 3rd ed., p 89; and Attorney General for New South Wales v Radio 2UE & Ors (unreported, NSWCA, 28 August 1992, and in particular the judgment of Priestley JA at 37-38).

17 Whether guilty knowledge in a person charged with a criminal offence is a necessary ingredient has been the subject of what Wilson J described as "a bewildering diversity of judicial opinions expressed generally over the past century": see He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 549.

18 The need to prove mens rea at common law was expressed by Jordan CJ in R v Turnbull (1944) 44 SR 108 at 109:

"...assuming [a person's] mind to be sufficiently normal for him to be capable of criminal responsibility, it is also necessary at common law for the prosecution to prove that he knew that he was doing the criminal act which is charged against him, that is that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse."

19 Sir Frederick Jordan's statement of principle was approved in He Kaw Teh (at pp 531 and 572).

20 However, as the dicta of Wilson J earlier cited emphasises, guilty knowledge has not always been regarded as a necessary element in establishing a statutory offence. Indeed, in Proudman v Dayman [1941] HCA 28; (1943) 67 CLR 536 at 540 Dixon J remarked upon

"a marked and growing tendency to treat the prima facie rule [that is against strict liability] as excluded or rebutted in the case of summary offences created by modern statutes, particularly those dealing with social and industrial regulation."

21 His Honour went on to say:

"There may be no longer any presumption that mens rea, in the sense of a specific state of mind, whether of motive, intention, knowledge or advertence, is an ingredient in an offence created by a modern statute..."

22 In Proudman s 30 of the South Australian Road Traffic Act called for consideration. It created an offence of permitting a person to drive a motor vehicle without a licence. It was held that the section did not require proof on a prosecution that the defendant knew the driver to whom the car was entrusted had no licence.

23 R v Walker (1994) 77 A Crim R 236 is a recent decision, again concerning a breach of a motor traffic act, in which it was held that it was unnecessary to prove a wilful and volitional refusal to undertake a breath analysis test in order to prove a charge of failing to submit to a breath analysis under s 4E of the Motor Traffic Act (New South Wales).

24 I should refer also to Sweet v Parsley [1969] UKHL 1; [1970] AC 132 and in particular to the speech of Lord Diplock at 163:

"Where penal provisions are of general application to the conduct of ordinary citizens in the course of their every day life the presumption is that the standard of care required of them in informing themselves of facts which would make their conduct unlawful, is that of the familiar common law duty of care. But where the subject-matter of a statute is the regulation of a particular activity involving potential danger to public health, safety or morals in which citizens have a choice as to whether they participate or not, the court may feel driven to infer an intention of Parliament to impose by penal sanctions a higher duty of care on those who choose to participate and to place upon them an obligation to take whatever measures may be necessary to prevent the prohibited act..."

25 However in He Kaw Teh (supra) the common law presumption as to guilty knowledge being an element in an offence was firmly recognised: see the judgments of Gibbs CJ at 528; of Brennan J at 565-567; and of Dawson J at 591-592.

26 I understand the contemporary position to be as was stated in Griffin v Marsh (1994) 34 NSWLR 104 at 107-108. Hunt CJ at CL said:

"It was accepted by all parties that the relevant law is to be found stated in He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 529-530, 567-568, 594-595, in Von Lieven v Stewart (at 66) and in Hawthorne (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 at 131. It is sufficient for present purposes to state that law in two propositions:

(1) The common law presumption is that an essential ingredient of every offence is that the defendant knew of the wrongfulness of his act unless the statute excludes that presumption either expressly or by necessary implication.

(2) In determining whether the common law presumption has been displaced in the particular case, regard should be had to:

(a) the words of the statute itself;

(b) the subject matter with which the statute deals; and

(c) whether an absolute liability will assist in overcoming the mischief at which the statute is aimed.

As Gibbs CJ remarked in He Kaw Teh's case (at 530), these indicators do not always point in the same direction."

27 Returning to the present case, has the presumption recognised in the first of the propositions stated in the above passage from Griffin been excluded by any one of the matters identified in the above expression of principle?

28 The legislature has not expressed an intention to do away with the presumption in the language employed in s 68. That being so, has it done so by necessary implication? I do not find in s 68, or elsewhere in the statute, language which either expressly or by necessary implication excludes the relevant presumption.

29 Section 67 contemplates that proceedings under Pt 5 may attract media interest. Hence a representative of the media is to be permitted to hear the proceedings, (s 67(1)(b)), unless excluded from the hearing under that sub-section or under s 67(2)(b). A representative of the media or, indeed, any person publishing or broadcasting in relation to care proceedings "whether before or after the proceedings [were] disposed of", would generally be expected to have the guilty knowledge associated with the publication or broadcast in contravention of s 68(1) by reason of his very conduct. In the present case the magistrate found no specific reference in the article to the care proceedings under Pt 5, and it was not apparent that the respondent was aware such proceedings had occurred. However, putting to one side the present case, the very purpose and expression of a publication or broadcast contemplated in s 68(1) would generally be indicative of guilty knowledge in the publisher or broadcaster. Assuming an inadvertent publishing or broadcast though it is difficult to see why the common law presumption should have been intended to have been displaced.

30 The statute has in s 67 recognised the community interest in responsible reporting of proceedings in the Children's Court under Pt 5 of the statute. Whilst a child's interests require that such community interest be restricted so that the child is not identified in a report on such proceedings, it does not seem to me that the balancing of identified competing interests calls for the rebuttal of the presumption of guilty knowledge as an element in an offence of publication under s 68.

31 I am unable to find in the subject matter of s 68, or in the statute generally, a reason for the displacement of the common law presumption confirmed in He Kaw Teh.

32 Nor does it seem to me that an absolute liability under s 68 would assist in avoiding the mischief towards which the section is directed.

33 I add that facilitation of the task of prosecution for an offence under s 68 should not, and would not, rebut the common law presumption. To this effect Brennan J in He Kaw Teh said at 580:

"A pragmatic concern about unmeritorious acquittals does not warrant the imposition of strict liability."

34 I consider that the wrongfulness of the publisher's act is a necessary ingredient in an offence under s 68. It was not contended by the appellant that there was prima facie evidence of such guilty knowledge placed before the magistrate and it follows that, in my opinion, the decision of the magistrate was correct.

35 I will deal nevertheless with the second ground argued by the appellant as amounting to an error of law by the magistrate.

36 Mr Saidi submitted that a breach of s 68 was established upon proof of the following matters:

(i) that the person identified was a child;

(ii) that there was identification by name or in some other manner (in this case, of course, the child was named in the article);

(iii) that there were proceedings under Pt 5 relating to her;

(iv) that the child was named or identified sufficiently in connection with the subject matter of such proceedings.

37 Mr Saidi further submitted that each of the elements (i) to (iv) had been established.

38 The critical and contentious element was element (iv) above. Mr Saidi submitted that element was proved by reference to the following assertions in the article:

(a) that the child R was placed in foster care;

(b) the statement attributed in the article to the mother:

"When R was taken away it broke my heart. I want her back desperately."

(c) that "the foster family caring for R has also received threats..."

(d) the footnote to the article:

"The New South Wales Department of Community Services says it is unable to comment to protect the identity of some of the individuals involved."

39 These submissions did not, of course, find favour in the court below, and the magistrate found that while the article identified the child it did not identify the child in connection with care proceedings under Pt 5. In my opinion, that determination did not involve any error of law. I accept Mr Hale's submission that the question as to whether or not a child the subject of care proceedings under Pt 5 has been named in connection with such proceedings is to be determined by reference to the article itself.

40 Obviously, it cannot have been the intention of the legislature to make it an offence simply to publish the name of a child who has been involved in proceedings under Pt 5. Taken out of context and taken literally, sub-s (1) would permit of such a construction. However, s 68 has to be considered in its context and in particular in conjunction with s 67, the terms of which I set out earlier. Mr Hale submitted that s 68 must be regarded as being directed to the publishing or broadcasting of a report of the proceedings. This would include reporting on the evidence placed before the Children's Court, the submissions made to that court and what the magistrate determined.

41 Mr Hale further submitted that the prohibition on publishing or broadcasting the name of the child to whom proceedings related presupposed that the proceedings themselves were being published or broadcast by some report of the nature I have identified.

42 In my opinion, Mr Hale is correct in that submission.

43 Section 67(1)(b) focuses upon "any person who is engaged in preparing a report on the proceedings for dissemination through a public news medium". It is implicit that the legislature had such a person in mind in imposing the restriction against publishing or broadcasting in s 68(1), although s 68(2) does not limit the restriction to members of the media. However, it seems to me that, construed in context, s 68 is plainly directed at a report in relation to proceedings under Pt 5. In respect of any such report the child is not to be identified unless s 68(3) applies.

44 I do not consider that s 68(1) is to be given such a broad construction as to create an offence in the case of a publication where, as the magistrate here found, there was no specific reference to the care proceedings under Pt 5.

45 Strictly speaking, the stated case has not expressly posed a question or questions for decision by this Court. However, the issues have been clearly identified in the stated case and have been addressed by counsel in their comprehensive and helpful submissions. Plainly the question posed for this Court is whether the determination of the magistrate was erroneous in point of law. Having considered the two areas of challenge to which Mr Saidi directed his submissions, I answer the question in the negative.

46 Accordingly, I order the appellant to pay the respondent's costs.

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LAST UPDATED: 23/04/1999