R v BW & SW (No. 2) [2009] NSWSC 595

R v BW & SW (No. 2) [2009] NSWSC 595

Section 11(4)(b)(i) could be used to consider publication in relation to the deceased child because treating s 11(4)(d) as the only applicable exception would create an anomalous hiatus where no senior available next of kin could consent or object. The deceased child, aged seven at death, was incapable of concurrence, so consent depended on the public interest. The public interest favoured giving the child some identity, but the statutory protection of siblings meant that full names of the deceased, the offenders and the siblings, and other identifying information, remained prohibited. Publication of the middle name Ebony would not likely identify the siblings and was therefore permitted.

Jurisdiction
Australia
Judgment Date
24 June 2009
Procedural Posture
Criminal Proceedings / Review of Statutory Publication Prohibition After Guilty Verdicts
Outcome
Prohibition on publication to remain except that the deceased child may be identified by middle name only.
Legal Topics
['s 11 Children (criminal Proceedings) Act 1987' 'publication or Broadcast Identifying a Deceased Child' 'identification of Siblings of a Child Victim' 'court Consent to Publication' 'public Interest']
['criminal Law' "children's Law" 'open Justice and Suppression/non Publication'] ['s 11 Children (criminal Proceedings) Act 1987' 'publication or Broadcast Identifying a Deceased Child' 'identification of Siblings of a Child Victim' 'court Consent to Publication' 'public Interest']

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Procedural Posture

Criminal Proceedings / Review of Statutory Publication Prohibition After Guilty Verdicts

Legal Issues

  1. 1 ['Whether the court should consent to publication or broadcast of information identifying the deceased child under s 11 of the Children (Criminal Proceedings) Act 1987.' 'Whether s 11(4)(b)(i) could apply to a deceased child where no senior available next of kin could consent or object because both parents were charged with or convicted of the relevant offences.' "Whether publication of the deceased child's full name or other identifying information would be likely to identify her siblings." "Whether publication of the deceased child's middle name only should be permitted."]

Ratio Decidendi

Section 11(4)(b)(i) could be used to consider publication in relation to the deceased child because treating s 11(4)(d) as the only applicable exception would create an anomalous hiatus where no senior available next of kin could consent or object. The deceased child, aged seven at death, was incapable of concurrence, so consent depended on the public interest. The public interest favoured giving the child some identity, but the statutory protection of siblings meant that full names of the deceased, the offenders and the siblings, and other identifying information, remained prohibited. Publication of the middle name Ebony would not likely identify the siblings and was therefore permitted.

Court Disposition

Prohibition on publication to remain except that the deceased child may be identified by middle name only.

Orders

  • ['The court consents to the publication of the middle name of the deceased child.' "Publication or broadcasting of the deceased child's first and last name, and any information that might lead to her or her siblings being identified, including the names of the two offenders and the names of the siblings, remains...