Citation: R v Papley (No 2) [2017] NSWSC 1112
Court: Supreme Court of NSW
Date: 18 August 2017
Judge(s): R A Hulme J
Background
An accused faced trial for the murder of her daughter, born in 1999, who had not been seen by anyone other than the accused after approximately 2000 to 2001. In earlier proceedings (R v Papley [2017] NSWSC 1068), Hulme J had already found the child to be deceased.
Under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the publication or broadcast of any material that might identify a child is prohibited by default. This prohibition extends to the child's name and to the names of family members, including the accused.
Section 15E of the Act creates an exception for deceased children, permitting a court to consent to identification in certain circumstances. This short judgment addressed whether that exception should be exercised, and in what form.
Legal Issues
- Whether the court should consent under s 15E of the Children (Criminal Proceedings) Act 1987 to the deceased child being publicly identified by name
- Whether, in the absence of a senior available next of kin to give consent, the public interest justified granting that consent
- What form of identification (full name or middle name only) was appropriate given the need to protect the identity of surviving siblings
Decision
Issue 1: Whether the child is deceased and whether next of kin consent was available
Hulme J had already determined in earlier proceedings that the child was deceased. The court found that no senior available next of kin existed who could provide consent to publication of the child's name (at [2]).
Issue 2: Whether the public interest justified consent to identification
The court found that the public interest warranted the child being recognised by at least a name, rather than her disappearance being perpetuated through complete anonymisation (at [3]). Hulme J reasoned that according the child dignity and respect supported the grant of consent, drawing on his earlier reasoning in R v BW and SW (No 2) [2009] NSWSC 595 (at [3]).
Issue 3: Form of identification
The court accepted that using the child's middle name only would not risk identifying any of her four siblings (at [4]). The accused, a sister, and a grandmother had already been assigned pseudonyms in the primary proceedings. Consent was therefore limited to identification by the child's middle name, Astra (at [5]).
Orders Made
- Consent granted under s 15E(5) of the Children (Criminal Proceedings) Act 1987 for the deceased child who is the alleged victim to be publicly known by her middle name only
Key Takeaways
- Under s 15E of the Children (Criminal Proceedings) Act 1987, a court may consent to public identification of a deceased child victim even where no senior available next of kin exists to provide that consent (at [2]).
- The public interest in according a deceased child victim dignity and respect can justify granting consent to identification, so as to avoid her existence being entirely obscured by anonymisation (at [3]).
- Where consent is granted, it may be limited in scope: the Supreme Court confined identification to the child's middle name only, to protect the identities of surviving siblings (at [4]-[5]).
- R v BW and SW (No 2) [2009] NSWSC 595 was applied as relevant precedent for the exercise of the discretion to consent to identification of a deceased child in the public interest (at [3]).
- The default prohibition under s 15A extends not only to the child's name but also to the names of family members, meaning the accused and other relatives required pseudonyms throughout the proceedings (at [1]).
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW) ss 15A, 15E
Cases
- R v BW and SW (No 2) [2009] NSWCCA 595; 196 A Crim R 329
- R v Papley [2017] NSWSC 1068