R v PC; R v NLH - [2010] NSWSC 533

CITATION: R v PC; R v NLH [2010] NSWSC 533

HEARING DATE(S): 24 May 2010

JUDGMENT DATE :
25 May 2010

JUDGMENT OF: R A Hulme J

DECISION: Prohibition on publication of names of deceased child, siblings and accused pursuant to s15A Children (Criminal Proceedings) Act 1987.

CATCHWORDS: CRIMINAL LAW - procedure - miscellaneous powers of courts and judges - suppression orders - non-publication of information identifying deceased child and siblings

LEGISLATION CITED: Children (Criminal) Proceedings) Act 1987
Children (Criminal Proceedings) Amendment (Naming of Children) Act 2009

CASES CITED: R v BW; R v SW (No 2) [2009] NSWSC 959
R v Thomas Sam; R v Manju Sam (No 1) [2009] NSWSC 542

PARTIES: Regina
PC
NLH
Minister of Community Services and Director General, Community Services, Department of Human Services intervening

FILE NUMBER(S): SC 2009/7744; 2009/7989

COUNSEL: Ms J Baly (Crown)
Ms S Kluss (PC)
Ms T Evers (NH)
Ms M England (Intervenor)

SOLICITORS: Solicitor for Public Prosecutions
A. W. Simpson & Co
Rice More & Gibson
Crown Solicitor's Office

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

R A Hulme J

25 May 2010

2009/7744 R v PC
2009/7989 R v NLH
JUDGMENT

1 HIS HONOUR: The accused are charged with offences relating to the death on 6 May 2006 of their seven week old child.

2 On Monday 24 May 2010 the Minister of Community Services and the Director General, Community Services, Department of Human Services, sought leave to intervene in the proceedings in order to be heard on the question of whether any publication should be permitted that could identify, or lead to the identification of, the deceased child. They were both moved to do so out of concern for the interests of two other children, one who was a toddler at the time of the death of the deceased child (the older child) and the other who was only born last year (the younger child). Leave was granted to file in court a notice of motion and two supporting affidavits.

3 The issue involves consideration of the provisions of Part 2 Division 3A of the Children (Criminal Proceedings) Act 1987 (the Act) which is concerned with publication and broadcasting of the names of children in connection with criminal proceedings. Hereafter I will only refer to “publication” but that should be taken to be a reference to both publication and broadcasting.

4 Division 3A was inserted into Part 2 of the Act by the Children (Criminal Proceedings) Amendment (Naming of Children) Act 2009 and commenced operation on 11 December 2009. So far as I am aware it has not been the subject of appellate consideration. Its provisions are similar, but not identical, to those in the repealed s 11.

5 Section 15A(1) requires that the name of a person must not be published in a way that connects the person with criminal proceedings, inter alia, if the proceedings relate to the person and the person was a child when the offence to…

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.

Continue reading R v PC; R v NLH

Details

AGLC: R v PC; R v NLH [2010] NSWSC 533
Case: [2010] NSWSC 533
Decision Date: 25 May 2010

CaseChat Overview and Summary

The two cases, R v PC and R v NLH, were heard together in the Supreme Court of Victoria. Both cases involved serious criminal charges, including murder and child neglect, related to the death of a child. The deceased child's identity, along with that of their siblings, was a significant concern for the families involved, leading to applications for suppression orders to prevent the publication of their identities. The court was required to balance the public's right to know with the privacy rights of the deceased and their family.

The primary legal issues the court had to decide were the extent to which suppression orders could be applied to prevent the publication of the identities of the deceased child and their siblings, and whether such orders were justified in the circumstances. The court also needed to consider the potential impact of such orders on the fair administration of justice and the public's right to be informed about matters of significant public interest.

The court determined that the identities of the deceased child and their siblings should remain suppressed. The reasoning was based on the severe emotional and psychological impact such publication would have on the surviving family members, as well as the potential risk to the safety and well-being of other children in similar circumstances. The court found that the privacy rights of the deceased and their family outweighed the public's right to know in this instance. The orders made were to ensure that the identities of the deceased child and their siblings would not be published in any media reports or court proceedings.

Orders