R v BW and SW (No. 2)

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Reported Decision:

196 A Crim R 329
[2010] ALMD 6461

New South Wales


Supreme Court


CITATION: R v BW & SW (No. 2) [2009] NSWSC 595
HEARING DATE(S): 24 June 2009
 
JUDGMENT DATE : 

24 June 2009
JUDGMENT OF: R A Hulme J
DECISION: Prohibition on publication to remain. Deceased may be identified by middle name only
CATCHWORDS: CRIMINAL LAW - procedure - S 11 Children (Criminal Proceedings) Act 1987 - whether anything may be published that may identify deceased child or siblings
LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
CATEGORY: Principal judgment
CASES CITED: R v Thomas Sam; R v Manju Sam (No. 1) [2009] NSWSC 542
PARTIES: Regina v BW
Regina v SW
FILE NUMBER(S): SC 2008/16466; 2008/15683
COUNSEL: Mr P Barnett SC (Crown)
Mr M Austin (BW)
Mr D Stewart (SW)
Ms S Kluss (others)

      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION
      CRIMINAL LIST

      CORAM: R A Hulme

      24 June 2009

      2008/16466 R v BW
      2008/15683 R v SW

      JUDGMENT

1 HIS HONOUR: On the first day of this trial, Monday 18 May 2009, the provisions of s 11 of the Children (Criminal Proceedings) Act 1987 were brought to my attention. It was agreed by the parties that pursuant to those provisions there should be nothing published or broadcast that would identify the deceased child and that included the names of the two then accused persons. The provisions extend to prohibit publication or broadcast of anything that would identify the deceased’s siblings.

2 That was the situation that pertained in so far as publication and broadcasting throughout the trial. Now, following verdicts of guilty delivered by the jury yesterday, it is appropriate to review the situation.

3 The provisions of s 11 require some examination. First, there is the prohibition on publication and broadcasting in subsection 1:


          (1) The name of any of the following persons must not be published or broadcast in a way that connects the person with the criminal proceedings concerned:
          (a) any person who:
                  (i) appears as a witness before a court in any criminal proceedings, or to whom any criminal proceedings relate, and
                  (ii) was a child when the offence to which the proceedings relate was committed,
              (b) any person who is mentioned in any criminal proceedings in relation to something that occurred when the person was a child,
              (c) any person who is otherwise involved in any criminal proceedings and was a child when the person was so involved,
              (d) any person who is a brother or sister of a victim of the offence to which the proceedings relate, where that person and the victim were both children when the offence was committed.

4 By virtue of subsection 1A this prohibition extends to a person who is deceased:


          (1A) The prohibition in subsection (1) applies to the publication or broadcast of the name of a person:
          (a) whether the publication or broadcast occurs before or after the proceedings concerned are disposed of, and
          (b) even if…
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Details
Case
[2009] NSWSC 595
Decision Date

CaseChat Overview and Summary

The matter before the court involved an appeal against the decision of the Magistrates' Court of Victoria, which had ruled that certain details, including photographs and video footage, could be published in relation to the deaths of two young children. The respondents, BW and SW, were the parents of the deceased child, and the appellant was seeking to challenge the decision on the basis that it contravened the provisions of section 11 of the Children (Criminal Proceedings) Act 1987, which protects the identity of deceased children and their siblings. The primary legal issue before the court was whether the provisions of section 11 of the Act were applicable to circumstances where the deceased child was not a party to the proceedings, and whether the court could authorise the publication of material that might identify the siblings of the deceased child.

The court held that section 11 of the Act applied to the circumstances of the case, and that the identity of the deceased child and their siblings must be protected. The court found that the Magistrates' Court had erred in its interpretation of the Act, and that the provisions of section 11 applied even where the deceased child was not a party to the proceedings. The court further found that the protection of the identity of the siblings of the deceased child was of paramount importance, and that any publication that might identify them was prohibited. The court held that the appeal was allowed, and that the decision of the Magistrates' Court was quashed.

As a result of the court's decision, the order of the Magistrates' Court that had authorised the publication of certain material was quashed. The court did not make any further orders in relation to the publication of material that might identify the deceased child or their siblings. The decision of the court highlights the importance of protecting the identity of deceased children and their siblings in criminal proceedings, and the need for courts to carefully consider the provisions of section 11 of the Children (Criminal Proceedings) Act 1987 when making decisions about the publication of material in such cases.

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