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Supreme Court 5 May 2014

R v Xie (No. 5)

[2014] NSWSC 588

Homicide
CRIMINAL LAW MURDER TRIAL DECEASED CHILD VICTIMS SURVIVING SIBLING PARENTS OF CHILDREN ALSO DECEASED PUBLIC INTEREST TEST

Citation: R v Xie (No. 5) [2014] NSWSC 588
Court: Supreme Court of New South Wales
Date: 5 May 2014
Judge: Johnson J

Background

This decision was handed down three days before the commencement of a murder trial in which the accused faced five counts of murder arising from deaths on 18 July 2009. Among the five deceased were two children: Henry Lin, aged 12, and Terry Lin, aged 9. Their parents were also among the deceased.

The sole surviving member of the family was a young woman referred to as Ms AB, who was 15 years old at the time of the deaths and approximately 20 years old at the time of this decision. She was the sister of Henry and Terry.

Before the trial began, a question arose as to whether the media could publish the names of Henry Lin, Terry Lin, and Ms AB. That question required the court to interpret and apply the publication prohibition regime in the Children (Criminal Proceedings) Act 1987 (NSW).

  • Whether the statutory prohibition on publishing the names of child victims under s 15A of the Children (Criminal Proceedings) Act 1987 applied to Henry Lin and Terry Lin, both now deceased.
  • Whether the court could consent to publication of the deceased children's names under s 15D(1)(a), and whether the public interest test required by s 15D(2) was satisfied.
  • Whether the absence of a "senior available next of kin" (both parents being deceased) affected the analysis under s 15E.
  • Whether the statutory prohibition continued to protect the identity of Ms AB, the surviving sibling, who had not consented to publication of her name.

Decision

Section 15A of the Act operates automatically (the judgment describes it as "self-executing") to prohibit publication of the names of children who are victims in criminal proceedings. Because Henry and Terry Lin were under 16 at the time of their deaths, the default prohibition applied to them. Their parents would ordinarily have been the "senior available next of kin" capable of consenting to publication under s 15E, but both parents were themselves among the deceased, leaving that pathway unavailable.

The court turned instead to s 15D(1)(a), which permits a court to consent to publication where the child is under 16 at the relevant time. Under s 15D(2), such consent can only be given if the court is satisfied it is in the public interest. Johnson J found that the public interest test incorporates the open justice principle, drawing on the reasoning in R v Sam (No 1) [2009] NSWSC 542 and R v BW (No 2) [2009] NSWSC 595.

Although cases such as R v BW (No 2) and R v PC [2010] NSWSC 533 had declined to permit publication where doing so would adversely affect surviving siblings, Johnson J distinguished those cases on the facts. The names of the three adult victims, including the children's parents, would be published in any event. The court also noted that no party had submitted it should decline to give consent. Satisfied that the public interest, including open justice, favoured publication, Johnson J gave consent to the publication of the names Henry Lin and Terry Lin.

As for Ms AB, the position was straightforward: being over 16 at the time of this decision, she could consent to publication of her own name under s 15D(1)(b), but she had chosen not to do so. The statutory prohibition therefore remained in place with respect to her identity by operation of s 15A alone, with no further court order required.

Orders Made

  • For the purposes of s 15D(1)(a) of the Children (Criminal Proceedings) Act 1987, the court consented to the publication of the names of Henry Lin and Terry Lin as part of any reporting of the proceedings.
  • The court noted that the prohibition on publishing or broadcasting the name of Ms AB remained in place by operation of s 15A, and that no further order was required in that respect.

Key Takeaways

  • Section 15A of the Children (Criminal Proceedings) Act 1987 is self-executing: it prohibits publication of a child's name without any need for a court order to that effect.
  • Under s 15D(1)(a) and s 15D(2), a court may consent to the publication of a deceased child's name where satisfied it is in the public interest, with the open justice principle forming a relevant consideration in that assessment.
  • Where the parents of deceased child victims are themselves deceased, the consent mechanism under s 15E is unavailable, but the court retains the power to consent under s 15D.
  • Even where a court consents to publication of deceased children's names, the potential impact on surviving siblings remains a relevant factor in the public interest analysis, as established in R v BW (No 2) and R v PC.
  • A surviving sibling who has reached 16 years of age controls whether her own identity may be published: absent her consent under s 15D(1)(b), the statutory prohibition continues to apply.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15D, 15E

Cases
- 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