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

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

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 Xie (No. 5)

Details

AGLC: R v Xie (No. 5) [2014] NSWSC 588
Case: [2014] NSWSC 588
Decision Date: 05 May 2014

CaseChat Overview and Summary

In the matter of R v Xie (No. 5), the court was presented with a complex issue regarding the publication of the names of deceased child victims in the context of a murder trial. The deceased children's parents had also passed away, and the only surviving family member was a sibling. The statutory framework in place prohibited the publication of the names of child victims. The central legal issue was whether the court should grant consent for the publication of the deceased children's names, weighing the public interest test against the open justice principle. The surviving sibling, who was a minor, did not consent to the publication of her identity, and the statutory prohibition on her name's publication remained in effect.

The court meticulously examined the statutory provisions, the public interest, and the open justice principle. It acknowledged the importance of transparency and the public's right to know in a criminal trial but also recognised the necessity of protecting the privacy and well-being of the surviving child. The court ultimately decided that the public interest in this case did not outweigh the need to protect the surviving sibling's identity and privacy. The statutory prohibition on the publication of the names of the deceased child victims was upheld, and the court did not grant consent for their publication.

Given the court's findings, the names of the deceased child victims were not to be published. The court also upheld the statutory prohibition on the publication of the surviving sibling's identity, emphasising the importance of protecting her privacy and well-being. The orders of the court were that the names of the deceased child victims would not be published, and the statutory prohibition on the publication of the surviving sibling's identity remained in place.

Orders