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 which the proceedings relate was committed (s 15A(1)(a)). This would prevent publication of the name of the deceased child (s 15A(4)(b)). It also requires that the name of a person not be published in a way that connects the person with criminal proceedings if the person is mentioned in the proceedings in relation to something that occurred when the person was a child (s 15A(1)(c)). This would prevent publication of the name of the older child. Arguably, it would also prevent publication of the name of the younger child. If, for example, there was publication of the fact that there was a child born to one of the accused last year, that would both connect that child with the criminal proceedings and would be “in relation to something that occurred when the person was a child”, that is, the child being born.

6 Section 15A(1) also requires that there be no publication of the name of a person who is a brother or sister of a victim of the offence to which the proceedings relate where both the person and the victim were children when the offence was committed (s 15A(1)(e)). This would also prevent publication of the name of the older child.

7 Section 15A(5) provides that a reference to the name of a person includes “a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person”. It is this provision which requires that nothing be published that would identify the accused persons as that would be “likely to lead to the identification” of the deceased child. If there be doubt about whether s 15A(1)(c) prohibits publication of the name of the younger child, s 15A(5) appears to provide another reason why that child’s name should not be published because any such publication would inevitably, directly or indirectly, link that child to the deceased child.

8 The provisions of s 15E should also be noted. Subsection (1) provides that the Division does not prohibit the publication of the name of a deceased child where there is the consent of a “senior available next of kin of the child”. “Senior available next of kin” is defined in s 15E(6) to mean a parent of the child or two other persons who are not presently relevant. So, each of the accused is a “senior available next of kin”. However, s 15E(4) provides that a senior available next of kin who is charged with an offence to which the criminal proceedings concerned relate cannot give consent, or object, to the publication of the name of a deceased child. In such a situation, the Court can give consent to publication “if satisfied that the public interest so requires” (s 15E(5)).

9 I am satisfied that there is a public interest favouring publication of the identity of the deceased child. It is in the public interest that he have the dignity of an identity, rather than being referred to as some anonymous deceased person. It is in the public interest that the identity of those persons charged with offences relating to the child’s death be available for publication, consistent with principles of open justice. Just as the conduct of criminal proceedings in closed court is contrary to such principles, although there are well recognised exceptions where competing considerations prevail, the identity of participants in criminal proceedings, for example, victims, witnesses and accused persons, should also, generally speaking, be open to public knowledge.

10 Whilst there is the public interest to consider, there are competing considerations as the very existence of Part 2 Division 3A of the Act recognises.

11 It is not appropriate that I set out in this judgment the detailed information concerning the two children for which the Minister and the Director-General are concerned. Suffice to say that they are in care and that there are a number of reasons advanced as to why there is a real risk of adverse impact upon them if publication were to be permitted. I should record that I do not accept all that has been put forward as to reasons why there may be such adverse impact but there is sufficient in my view to warrant taking a cautious approach in balancing concerns for the children against the principles of open justice in the context of criminal proceedings.

12 An example of this balancing exercise resulting in an order permitting publication is provided by R v Thomas Sam; R v Manju Sam(No 1) [2009] NSWSC 542. Another example resulting in consent to publication being declined, except in a limited respect, is provided by R v BW; R v SW(No 2) [2009] NSWSC 959. The point of distinction between the two cases was that in the latter there were the interests of the deceased child’s siblings to be considered whereas in the former there is no indication of the deceased child having any siblings.

13 In the present case, like in R v BW; R v SW (No 2), I am of the view that concern for the welfare of the two children outweighs the public interest in publication being permitted.

14 In R v BW; R v SW (No 2) I was concerned that the deceased child should be afforded some dignity, rather than being completely anonymous through operation of the non-publication provisions of former s 11 of the Act. I permitted her to be identified by her middle name. I raised this possibility with counsel upon the hearing of the present application. It was suggested that I might, perhaps, permit the child to be identified by the second of his two middle names. Upon reflection, I do not think that there would be any real benefit in permitting this. The circumstances of this child are somewhat different to the child in R v BW; R v SW (No 2). I am not foreclosing upon a further consideration of this but as things presently stand, I do not propose to make any such order at this time.

15 Counsel for the Minister and Director-General sought that I make a positive order prohibiting publication. I am of the view that there is no need for me to do so. The provisions of Division 3A are self executing and I have indicated my view that their operation will have the effect that there should be nothing published that would identify, or likely lead to the identification of, the deceased child or the two other children mentioned. Such information that should not be published includes the name of the two accused as that would lead to identification of some, or all, of the children.

16 Counsel also sought an order that the five people concerned be identified by way the pseudonyms “A”, “B”, “Child 1”, “Child 2” and “Child 3”. My view is that a pseudonym order is also unnecessary. Provided that there is compliance with the non-publication provisions of the Act, it is not a matter for me to be concerned with how these people might be referred to.

17 The foregoing are my reasons for making the orders announced at the conclusion of argument on 24 May 2010 which, for completeness, were:

1. Leave granted for the Minister of Community Services and the Director General, Community Services, Department of Human Services New South Wales to intervene in the proceedings.
2. Leave granted for filing of notice of motion and supporting affidavits in Court.
3. Notice of motion returnable instanter.

4. Application for non-publication and pseudonym orders refused.

5. Noted that the provisions of Part 2 Division 3A of the Children (Criminal Proceedings) Act 1987 prevent publication of the names of the deceased child, the older child, the younger child and the two accused.

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