A development I have long feared has come to pass: a guilty verdict in a Victorian criminal case has been upheld despite a Charter argument that might have led to an acquittal. This year, most criminal cases where the Charter has been considered have been interlocutory or collateral matters: bail, DNA sampling, proceeds of crime, trial process, etc. The one exception was DPP v Zierk  VSC 184, where the Charter was held not to apply (and Warren CJ, of course, made it clear that she’d blow it off anyway even if it had) but the defendant was nevertheless acquitted on ordinary statutory interpretation grounds.
Not so in Howe & Ors v Harvey; DPP v Tinkler & Ors  VSCA 181, where the Court of Appeal upheld five findings by the Magistrates Court of breaches of s26 of the (since repealed) Children and Young Persons Act 1989, which provided:
26(1) A person must not publish or cause to be published—
(a) except with the permission of the President, a report of a proceeding in the Court or of a proceeding in any other court arising out of a proceeding in the Court that contains any particulars likely to lead to the identification of— (i) the particular venue of the Children’s Court, other than the Koori Court (Criminal Division) and the Neighbourhood Justice Division, in which the proceeding was heard; or (ii) a child or other party to the proceeding; or (iii) a witness in the proceeding; or
(b) except with the permission of the President, a picture as being or including a picture of a child or other party to, or a witness in, a proceeding referred to in paragraph (a); or
(c) except with the permission of the Secretary granted in special circumstances in relation to a child who is the subject of a custody to Secretary order or a guardianship to Secretary order, any matter that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the Court.
(a) In the case of a body corporate – 500 penalty units.
(b) In any other case – 100 penalty units or imprisonment for 2 years…
The case concerned stories (arising in a chain of events recounted by Media Watch here) in the Herald Sun, Today Tonight and Sunrise to the effect that a 14-year old had ‘won a divorce from his mother… on the grounds of irreconcilable differences.’, accompanied by the usual blather about crazy authorities, spoilt brats and parents’ rights. The child had obtained a protection order from the Children’s Court under the then s84 of the CYPA (now s274 of the Children, Young Persons and Families Act 2005.)
Crucially, the various reports gave the child’s name and showed his photo, so it might seem a no-brainer that they breached s26. However, the Court of Appeal expressly ruled that s26(1)(a), at least, was ambiguous in one very relevant respect: does the ban only cover reports that identify the proceedings as Children’s (or related) Court proceedings, or does it extend to the situation here, where the reports only mentioned the outcome of the process and either didn’t mention the Children’s Court or buried it in a reference to ‘the authorities’.? The defendants pointed to numerous decisions elsewhere in Australia and overseas that read similar (but not identical) provisions narrowly, e.g. confining them to narrative accounts of proceedings or to photos while a proceeding was ongoing or to revelations that would have been understood by an ordinary member of the public. In each case, a narrower reading could arguably have meant that the various reports weren’t in breach of the section and, therefore, that the guilty verdicts were wrong.
It might also be thought that the defendants may gain little help from the Charter, because their rights are not the only ones at stake. Charter free expression is balanced against others’ rights, both internally and in two other express rights:
15(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria…
(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary- (a) to respect the rights and reputation of other persons…
17(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.
24(3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.
However, the defendants drew on powerful arguments from the case-law to the effect that a narrow reading of s26 is the appropriate way to strike the balance.
Notably, in Clayton v Clayton  EWCA Civ 878, the UK Court of Appeal gave a narrow reading to a provision that was similar to s26(1)(b) (confining it to ongoing procedures), on three grounds. First, that a decision by the relevant court on a case-by-case basis (available under inherent jurisdiction) was preferable to a blanket decision. (Victoria’s Children’s Court has the power to suppress individual proceedings, whether or not s26 applies, derived from the powers of the Magistrates Court.) Second, that a blanket, open-ended and ambiguous ban would fail the ‘lawful restriction’ test for limits on human rights, while a specific ban issued by the court in question would make it clear to everyone what publications were permitted. Third, that the penal context – note that s26 carries a potential prison sentence – meant that ambiguities should be resolved in favour of a narrower reading of a criminal provision. These concerns are all familiar parts of human rights law that are routinely applied to resolve difficult conflicts between competing rights and interests and, indeed, the UK case was expressly concerned with the balance between free speech and children’s privacy rights.
So, actually, it’s surely a no-brainer that, at least in the resolution of statutory interpretation questions that the Victorian Court of Appeal considered ambiguous, close attention should be paid to cases like Clayton v Clayton pursuant to Charter s. 32:
32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
Clayton can be distinguished on the basis that the Court of Appeal was required to interpret the legislation consistently with the European Convention… In the instant case, it was not contended in oral submissions that the Charter of Human Rights and Responsibilities Act 2006 should be applied in interpreting s 26(1), so the same considerations do not apply.
Oh dear. Continue reading