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Court of Criminal Appeal 26 February 2024

R v IP

[2024] NSWCCA 16

HomicidePublic order & justice offences
CRIME SUPPRESSION AND NON PUBLICATION

Citation: R v IP [2024] NSWCCA 16
Court: NSW Court of Criminal Appeal
Date: 26 February 2024
Judges: Harrison CJ at CL; Wright J; Wilson J

Background

This matter arose following criminal proceedings in which an accused child (referred to as IP) was tried for the stabbing death of another child (referred to as BM). A jury returned a not guilty verdict on 20 December 2023, bringing the criminal proceedings to a close.

Earlier in the proceedings, the Director of Public Prosecutions had appealed certain evidentiary rulings to the Court of Criminal Appeal under s 5F(3A) of the Criminal Appeal Act 1912 (NSW). The Court allowed that appeal and delivered reasons, but restricted publication of the judgment pending the verdict. Once the verdict was returned, the question of publishing the judgment in unrestricted form arose.

BM's senior next of kin wished to waive the anonymity protections that applied to BM as a deceased child victim, relying on the exception in s 15E of the Children (Criminal Proceedings) Act 1987 (NSW). The question before the Court was whether publishing BM's name in the judgment would be likely to lead to the identification of IP, whose own anonymity protections remained in force under s 15A of the same Act.

  • Whether the s 15E exception, permitting publication of a deceased child's name with next of kin consent, applied in circumstances where doing so might identify an accused child protected under s 15A.
  • Whether publishing BM's name in the Court's judgment would be "likely to lead to the identification" of IP within the meaning of s 15A(5) of the Children (Criminal Proceedings) Act 1987 (NSW).
  • Whether the relevant statutory test concerns the possibility of identification (including by those with pre-existing personal knowledge of the events) or the likelihood of identification by an uninstructed reader of the published judgment.

Decision

The Court held that the statutory question under s 15A is not whether identification of IP by the publication of BM's name is possible, but whether such publication would be likely to lead to IP's identification. Harrison CJ at CL emphasised that the section does not speak in terms of possibility, and that the existence of a community cohort already aware of IP's identity does not answer the question the statute poses.

The Court tested the question by reference to a hypothetical reader who was a stranger to the events. Examining the judgment to be published, the Chief Judge noted that the underlying events were not described in it, the location of the stabbing was not mentioned, no geographical detail appeared, and no identifiable institutions, landmarks, or other contextual clues were present. On its face, the judgment could relate to events occurring anywhere in New South Wales at any time.

In those circumstances, the Court concluded that publishing BM's full name in the unrestricted judgment would not, and would not be likely to, identify or lead to the identification of IP. The next of kin's consent under s 15E had been properly established, and the wishes of BM's family were therefore to be respected. All three judges agreed with this conclusion.

The Court gave weight to IP's submissions about social media activity and the safety risks IP faced, but these considerations did not alter the statutory analysis. The relevant question remained whether the judgment itself, read by an uninstructed person, would be likely to identify IP, not whether identification was conceivable through other means by those already aware of the circumstances.

Orders Made

• The Court should name BM in its published judgment

Key Takeaways

  • The statutory prohibition in s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) is engaged by publication that is "likely to lead to" the identification of a protected child, not merely publication that makes identification possible in some circumstances.
  • The appropriate test for likely identification under s 15A(5) involves asking whether an uninstructed reader of the published material would be able to identify the protected person, not whether individuals already familiar with the events could do so.
  • Under s 15E, a deceased child victim's name may be published with the consent of a senior available next of kin, but this exception operates subject to the constraint that publication must not be likely to identify another child who retains statutory protection.
  • The Court of Criminal Appeal confirmed that the existence of a wider community who may already know the identity of an accused child does not satisfy the statutory test, nor does it frustrate the operation of the s 15A protections.
  • Where a judgment is sufficiently anonymised in its contextual details (omitting location, institutions, landmarks, and circumstantial identifiers), publication of a deceased victim's name may not be "likely to lead to" identification of a co-involved protected child, even in cases attracting significant public and social media attention.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15E
- Criminal Appeal Act 1912 (NSW), s 5F(3A)

Cases:
- R v IP [2023] NSWCCA 314