R v BW and SW (No. 2) - [2009] NSWSC 595

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(1) The name of any of the following persons must not be published or broadcast in a way that connects the person with the criminal proceedings concerned: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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 595
Decision Date: 24 June 2009

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.

Orders