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 Mr P Barnett SC (Crown) COUNSEL : 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is the prohibition on publication and broadcasting in subsection 1: (1) The name of any of the following persons must not be published or broadcast in a way that connects the person with the criminal proceedings concerned: (a) any person who: (i) appears as a witness before a court in any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 the person is no longer a child, or is deceased, at the time of the publication or broadcast. 5 The prohibition extends beyond the name but to anything that would identify the chid concerned in that subsection 5 provides: (5) For the purposes of this section, 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. 6 Subsection 3 provides that it is an offence for a person to publish or broadcast the name of any person, the publication or broadcasting of which is prohibited by subsection 1. There are, however, exceptions provided in subsection 4: (4) Subsection (1) does not prohibit: (a) the publication or broadcasting of an official report of the proceedings of a court that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by subsection (1), or (b) the publication or broadcasting of the name of a person: (i) in the case of a person who is a child under the age of 16 years at the time of publication or broadcasting—with the consent of the court concerned, or (ii) 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 the person, or (c) the publication or broadcasting of the name of a person who has been convicted of a serious children's indictable offence, if the publication or broadcasting is authorised by a court under subsection (4B), or (d) the publication or broadcasting of the name of a deceased child with the consent of a senior available next of kin of the child, but only if it appears to the senior available next of kin, after making such inquiries as are reasonable in the circumstances, that no other senior available next of kin objects to the publication or broadcasting of the name. 7 The term "senior available next of kin" used in subsection 4(d) is defined in subsection 7: (7) In this section, senior available next of kin of a deceased child means: (a) a parent of the child, or (b) if the parents of the child are dead, cannot be found, or for some other reason cannot exercise their parental responsibilities to the child: (i) a person who, immediately before the death of the child, had parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998) for the child, or (ii) in the case of a child who was in the care of the Director-General of the Department of Community Services immediately before his or her death—the Director-General. 8 Both offenders, accordingly, are the "senior available next of kin", however neither of them may consent nor object to publication because of the provisions of subsection 4F: (4F) A senior available next of kin who is charged with, or is convicted of, an offence to which the criminal proceedings concerned relate cannot give consent, or object, to the publication or broadcasting of the name of a deceased child as referred to in subsection (4) (d). 9 When I indicated earlier today that I proposed to review the situation regarding publication, counsel for both offenders indicated that because they have no standing to either consent or object, and otherwise did not have any interest in the issue, they did not want to be heard. 10 Notwithstanding the provisions of subsection 4F, it is appropriate to note that if a "senior available next of kin" were in a position to consent or object, subsection 4G provides: (4G) In considering whether to give consent to the publication or broadcasting of the name of a deceased child as referred to in subsection (4) (d), a senior available next of kin must, if the publication or broadcasting of the name of a brother or sister of the deceased child is prohibited under subsection (1) (d): (a) make such inquiries as are reasonable in the circumstances to obtain the views of that brother or sister regarding the publication or broadcasting of the name of the deceased child, and (b) take into account the impact of such a publication or broadcasting on that brother or sister. 11 Accordingly the legislation contemplates the impact upon siblings as a matter to be considered. 12 The relevant provision now to be considered in relation to whether there may be anything published or broadcast that would identify the deceased child is subsection 4(b). Whether paragraph (i) or (ii) of that subsection applies depends upon whether the child is under sixteen or of or above that age. In this case the deceased must be regarded as being under that age, she being aged seven at the time of her death, on or about 3 November 2007. Therefore publication may be permitted with the consent of the court. 13 During the course of submissions the Crown Prosecutor invited my attention to a possible construction of subsection 4(b), that being, in effect, that it does not apply in the case of a deceased child and that the only exception in subsection 4 that applies in the case of a deceased child is in (d). I indicated that such a construction would leave a hiatus in that in a situation such as the present where there is a deceased child and no "senior available next of kin", there could be no possible exception and the prohibition upon publication and broadcast contained in subsection 1 would have to apply. That could lead to absurd and anomalous results. The purpose of section 11 is clearly ascertainable on its face. Children involved in criminal proceedings in any way, whether they are defendants, witnesses, victims, siblings of victims, or merely mentioned, are protected from public identification. Exceptions are provided. Where the child is 16 or over, there is an exception if the child consents. Where the child is under 16, there is an exception if the court consents upon being satisfied that it is in the public interest. Where the child is deceased, the wishes of the child's family are respected by making it a matter for the child's parents, or a person in a similar relationship with the child, to consider whether there should be consent. In my view it is consistent with the clear object of the section in these respects that in this case where there is no senior available next of kin who can consent or object, the court should be in a position to deal with the issue by way of the exception in subsection 4(b)(i). 14 The court must be of the opinion that the public interest requires such consent being given because of the provisions of subsection 4A: (4A) The consent of the court referred to in subsection (4) (b) (i) shall not be given except with the concurrence of the child or (if the child is incapable of giving concurrence) where the court is of the opinion that the public interest so requires. 15 Obviously the child is incapable of giving concurrence so the matter turns upon a consideration of the public interest. For reasons which are unnecessary to recount because of the view I have ultimately come to, I am of the view that the public interest does favour publication of the name of the deceased child, or any information that may identify her. My reasoning is the same as that adopted by Johnson J in R v Thomas Sam; R v Manju Sam (No. 1) [2009] NSWSC 542. 16 The siblings of the deceased child remain to be considered. Ms Kluss, of counsel, appeared for the three siblings today and tendered affidavits which have informed me of the current situation in relation to each of them. Without going into detail she has submitted that there are potential adverse consequences if anything were published that may identify her clients. 17 There is, however, a more fundamental concern. Subsection 1, as I have observed, when read with subsection 5 extends to prohibit publication of anything that identifies or may lead to the identification of the siblings. Subsection 4(b)(ii) allows for the publication of any such thing in relation to a person of or above the age of sixteen, with the consent of that person. Ms Kluss informed me from the bar table, and I accept, that the eldest sibling, who is sixteen years old, does not consent. Accordingly there is no occasion for the court to consent to such publication. 18 What then is information that is likely to lead to the identification of the siblings? It is clear that the names of the two offenders and the first and last names of the deceased would fall into that description, so the prohibition in subsection 1 would remain in respect of those matters, as well as applying to the names of each of the siblings themselves. 19 This creates a problem because I do have a concern that relates to the deceased child herself. She died in the most atrocious circumstances. She lived in a bedroom that was found to be in a squalid state. Indeed, when the family lived at Matraville there was evidence that the window of the child's bedroom was covered by a board and sheeting in a way that would have blocked whatever limited view of the outside world that she may have had. There was evidence that when those premises were vacated the bedroom was found to be putrid, including human faeces being on the floor, and there being a stench of stale urine. The bedroom in which the child lived in the home at Hawks Nest for the last weeks of her life was found to be similarly putrid with there being a pungent stench of stale urine. 20 The forensic pathologist, Dr Kasinathan Nadesan, said that when he first saw the deceased in her bedroom at the Hawks Nest house on the evening of Saturday 3 November 2007, he saw "a little child dead, obviously in an extreme degree of emaciation and wasted and dehydrated. It looked almost like a mummy to me". I will not recount all of the detail of the observations of Dr Nadesan, but it is clear that this was a child who had been the subject of the most severe neglect. 21 Dr Edward O'Loughlin, a special paediatric gastroenterologist at the Sydney Children's Hospital, made similar observations and expressed similar opinions based upon the images and the reports that he had seen and reviewed. 22 One of the observations made by Dr Nadesan was that the lungs of the child were in a state indicative of someone who did not go outdoors and was not exposed to the environment. This is indicative of the child having been kept indoors and from all of the observations that were made, likely kept in her bedroom for extended periods of time. 23 Dr O'Loughlin, as did others, made the observation that of many malnourished children that he had seen or seen pictures of in his years of practice, the deceased was the most malnourished child he had ever seen. 24 The evidence was, in terms of the opinion of both Dr O'Loughlin and Dr Nadesan, that the child would have been virtually incapable of movement, for days, perhaps weeks, and was likely in a semiconscious state, at least, for a period of time of that order. 25 In my view, having regard to this evidence there is a considerable interest in this poor little girl having some identity assigned to her. She should not be simply some anonymous person who endured what she endured, but a person with a name. She was the subject of the most profound neglect and abandonment for her short life. To my mind maintaining her anonymity would have the effect of perpetuating that abandonment. Dignity and respect for her life and her memory, very strongly militates in favour of allowing publication of something that would give to her an identity. 26 Because of the provisions that I have earlier referred to publication of her full name would be caught by the prohibition, in that it would lead to the identification of at least one her siblings. It has been agreed between Ms Kluss and the Crown Prosecutor, and it is a view that I share, that permitting publication of the child's middle name, that is Ebony, would not likely lead to identification of other family members, that is, the siblings. 27 Accordingly, it seems to me, appropriate that the court should consent to the publication or broadcast of the name of the deceased child, but limited to her middle name. Publication or broadcasting of her first and last name, and any information that might lead to her or her siblings being identified, and this includes the names of the two offenders and the names of the siblings, should remain prohibited under s 11(1) of the Children (Criminal Proceedings) Act. 28 I have also given consideration to whether publication of a photograph of the deceased taken prior to her death should be permitted. I understand from Ms Kluss that she has no instructions from the elder siblings that would permit her to respond to that possibility. Accordingly, in relation to that aspect, I will stand the matter over before me in Sydney on Friday this week at 9.30 to hear further as to whether that should be permitted. 29 So the order I make is that the court consents to the publication of the middle name of the deceased child. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.