R v Xie (No. 5)

[2014] NSWSC 588

Supreme Court

New South Wales

Medium Neutral Citation:	R v Xie (No. 5) [2014] NSWSC 588
Hearing dates:	5 May 2014
Decision date:	05 May 2014
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	For the purpose of s.15D(1)(a) Children (Criminal Proceedings) Act 1987, the Court gives consent to the publication of the names of Henry Lin and Terry Lin as part of any report of the proceedings.
Catchwords:	CRIMINAL LAW - murder trial - deceased child victims - surviving sibling - parents of children also deceased - statutory regime prohibiting publication of names of children - whether consent ought be given for publication of names of deceased child victims - public interest test - open justice principle - consent given to publication of names of deceased child victims - surviving sibling does not consent to publication of her identity - statutory prohibition on publication remains in place concerning surviving sibling
Legislation Cited:	Children (Criminal Proceedings) Act 1987
Cases Cited:	R v Sam (No 1) [2009] NSWSC 542 R v BW (No 2) [2009] NSWSC 595; 196 A Crim R 329 R v PC [2010] NSWSC 533
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) Lian Bin (Robert) Xie (Accused)
Representation:	Counsel: Mr M Tedeschi AM QC; Ms KN Shead (Crown) Mr GW Turnbull SC; Mr L Fernandez (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Burke & Mead Lawyers (Accused)
File Number(s):	2011/147183
Publication restriction:	* Restricted - Pending Jury Trial. On 12 January 2017, a jury returned verdicts of guilty on all counts. Sentence was passed on 13 February 2017: R v Xie [2017] NSWSC 63. * Subject to the operation of s.15B of the Children (Criminal Proceedings) Act 1987, s.15A of that Act operates to prohibit publication of the name and picture of Ms AB or of anything that is likely to lead to her identification. After 20 February 2017, the Court was informed that Ms Brenda Lin (Ms AB) had given her consent under s.15D(1)(b) and (3) of that Act to the publication or broadcasting of her identity.

Judgment

1. JOHNSON J: On Thursday next, 8 May 2014, the trial of the Accused, Lian Bin (Robert) Xie, will commence on five counts of murder. He is charged with the murder, on or about 18 July 2009, of Min (Norman) Lin, Yun Li (Lily) Lin, Yun Bin (Irene) Lin, Henry Lin and Terry Lin.

2. At the time of their deaths on 18 July 2009, Henry Lin was 12 years old and Terry Lin was nine years old. Min Lin and Lily Lin were the parents of Henry and Terry Lin.

3. The sole surviving member of the family is Ms AB who, as at July 2009, was aged 15 years.

4. In advance of the trial, an issue has been raised concerning the operation of provisions of the Children (Criminal Proceedings) Act 1987. Section 15A of that Act is self-executing in nature, and prohibits the publication or broadcast of certain matters including, relevantly in this case, the names of the deceased Henry Lin and Terry Lin and of Ms AB, the sister of Henry and Terry.

5. Section 15A prohibits the publication or broadcast of the names of those persons to the public, or a section of the public, by publication in a newspaper or periodical, publication by radio or television broadcast or other electronic broadcast, by the internet or by any other means of dissemination: s.15A(2).

6. The issues which have arisen at this stage concern the ability of the media to publish the names of Henry, Terry or Ms AB.

7. Section 15E of the Act provides for an ability for the senior available next of kin of a child deceased to give consent to publication of the name of the child. In the present case, there is no senior available next of kin of Henry and Terry, because their parents are themselves deceased as a result of the events of 18 July 2009. Accordingly, s.15E has no direct application in the circumstances of this case.

8. Section 15D(1) provides for an exception to the prohibition upon publication or broadcasting in two circumstances: Firstly, in the case of a person who was under the age of 16 years at the time of publication or broadcasting, with the consent of the Court; secondly, in the case of a person who is of or above the age of 16 years at the time of publication or broadcasting, with the consent of that person.

9. Section 15D(2) provides that a Court is not to give consent under the section, except with the concurrence of the child or, if the child is incapable of giving concurrence, unless the Court is of an opinion that it is in the public interest that consent be given.

10. Turning, firstly, to the circumstances of Ms AB. Ms AB was 15 years of age as at 18 July 2009. She is some 20 years of age at the present time.

11. Section 15D(1)(b) provides that there may be publication of her name with her consent. I note that such consent can only be given if the additional requirement in s.15D(3) is met concerning legal advice. However, it is the position that Ms AB does not wish her name to be mentioned in any publication or broadcast of the proceedings. The effect of that election is that, as a result of the self-executing nature of s.15A, there can be no publication or broadcasting of Ms AB's name. No further order of the Court is required in that respect. It is the consequence of the operation of the statute.

12. Turning then to the position of Terry and Henry, I accept that s.15D(1)(a) and (2) provide the Court with the power to permit publication of the names of Terry and Henry, if the Court consents to that approach being taken, with the Court only being able to express that opinion if satisfied that it is in the public interest that consent be given.

13. The application of the public interest discretion in the predecessor provision to s.15A (s.11 Children (Criminal Proceedings) Act 1987) was considered in R v Sam (No 1) [2009] NSWSC 542, where consent was given to the publication of the name of the deceased child victim, noting that the public interest discretion had regard to the open justice principle.

14. That approach in R v Sam (No 1) was accepted in R v BW(No. 2) [2009] NSWSC 595; 196 A Crim R 329, where RA Hulme J considered the question of non-publication of the name of a child victim in a murder case.

15. Although accepting the approach in R v Sam (No 1), his Honour had regard to the interests of the siblings of the child victim in that case, in determining that there should be no publication of the name, or any photograph of the child victim who, in due course, was referred to by her middle name, Ebony.

16. RA Hulme J applied the principles in R v Sam (No 1) and R v BW (No. 2) in R v PC [2010] NSWSC 533, a case which considered the construction and operation of s.15A and following of the Act. In that decision, publication was not permitted because of the continuing impact of publication upon the surviving siblings if the name of the child victim was published.

17. If there was a senior available next of kin of Henry and Terry, it would be necessary for that senior available next of kin, in deciding whether consent to publication should be given, to have regard to factors included in s.15E(3), which requires account to be taken of the impact of such publication or broadcasting on a sibling. There is, as I have said, no senior available next of kin present in this case.

18. It does seem to me, however, that, when the Court is considering the public interest test in s.15D, it should have regard to the possible impact of publication or broadcasting on a sibling. In the present case, there will be available for publication and broadcasting the names of the three adult victims. Two of those victims are the parents of Henry and Terry.

19. It may be said that identification of Henry and Terry may serve indirectly to identify Ms AB. However, it should be observed immediately that the identification of the parents will occur in any event in the circumstances of this trial.

20. No submission has been advanced that the Court should decline to give consent to publication of the names of Henry and Terry in the circumstances of this case.

21. It is, of course, a matter for the Court to determine whether the relevant opinion can be formed by reference to the public interest test. The public interest test has regard, amongst other things, to the open justice principle.

22. In the circumstances of the case, I am satisfied that the consent of the Court should be given to the publication or broadcasting of the names of Henry and Terry Lin.

23. For the purpose of s.15D(1)(a) Children (Criminal Proceedings) Act 1987, the Court gives consent to the publication of the names of Henry Lin and Terry Lin as part of any reporting of the proceedings.

24. I note that the publication or broadcasting of the name of Ms AB remains prohibited by operation of s.15A Children (Criminal Proceedings) Act 1987. No further order is required in that respect.

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Decision last updated: 28 February 2017