Citation: Burton v R; Katelaris v R [2025] NSWCCA 89
Court: Court of Criminal Appeal, NSW
Date: 10 June 2025
Judges: Adamson JA; Dhanji J; Weinstein J
Background
Following a jury trial before Harris DCJ in the District Court, two self-represented appellants were convicted of offences under s 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). That provision prohibits the publication or broadcast, in a form accessible by a person in New South Wales, of the name of a child who is the subject of proceedings before the Children's Court.
In early 2017, the appellants became associated with the parents of a four-year-old child, referred to throughout the proceedings as CWS. In May 2017, CWS was removed from his parents' care and Children's Court proceedings commenced. In July 2017, both appellants uploaded posts to Facebook that named CWS directly.
The first appellant was convicted on four counts (two of publishing and two of broadcasting). The second appellant was convicted on one count of publishing. Both appealed their convictions on multiple grounds, all of which the Court of Criminal Appeal dismissed.
Legal Issues
- Whether the original indictment was invalid for failing to properly charge the offences, and whether the trial judge erred in amending it rather than discharging the jury
- Whether the trial judge erred by declining to leave the defences of self-defence, necessity, and honest and reasonable mistake of fact to the jury
- Whether the jury should have been directed that removing the Facebook posts was relevant to the commission of the offence
- Whether the date of publication was an essential element requiring specific proof, and whether the trial judge's directions on timing were adequate
- Whether the Crown was required to prove that the child suffered harm or that his privacy was affected, as a precondition to conviction
- Whether the trial judge wrongly prevented the second appellant from telling the jury it could acquit contrary to the law if conscience so directed
Decision
Grounds 1 and 2 (validity of the indictment): The Court held that the original indictment, while imperfect, was not a nullity. Given the straightforward nature of the offence and the limited elements required to establish publication or broadcasting, there was no real risk that the accused misunderstood the case against them. The mid-trial amendment was made without injustice: the first appellant had drawn the defect to the trial judge's attention, no additional evidence was required, and the course of the trial was unaffected.
Ground 3 (defences not left to the jury): The Court found no error in the trial judge's refusal to leave self-defence, necessity, or honest and reasonable mistake of fact to the jury. The evidence, taken at its highest, was manifestly insufficient to raise a reasonable doubt on any of those defences. Notably, there was no logical connection between naming the child on Facebook and protecting him from death or serious injury, which is central to both self-defence and necessity.
Grounds 4, 5 and 6 (removal of posts; timing; harm): The offence under s 105(2) is complete at the moment of publication or broadcast. Subsequent removal of the posts is irrelevant to whether the offence was committed. The critical date was when the Children's Court proceedings commenced (24 May 2017), and the Facebook posts post-dated that event. Harm to the child, or any impact on his privacy or identity, is not an element of the offence and could not have grounded a dismissal of the indictment.
Ground 7 (jury's power to acquit against the law): The second appellant argued he was prevented from telling the jury it could acquit contrary to the law as a matter of conscience. The Court found the ground was not made out on its own terms because the second appellant had, in fact, made that very submission in his closing address without being required to withdraw it. The Court went further, confirming that a trial judge is entitled and generally obliged to correct a misstatement of law made to a jury. Directing a jury to apply the law and act on the evidence is entirely proper.
Orders Made
- In both sets of proceedings: leave to appeal granted on grounds 3, 4, 5 and 6
- In both sets of proceedings: appeal dismissed
Key Takeaways
- An indictment that imperfectly formulates a known offence is not automatically a nullity. Where the accused could not have been misled about the case to be met, an amendment made without injustice will be upheld.
- Under s 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the offence is complete at the point of publication or broadcast. Subsequent removal of the material does not undo the commission of the offence.
- Proof of harm to the child, or any effect on the child's privacy or identity, is not an element of the s 105(2) offence. Absence of demonstrated harm provides no basis to dismiss an indictment charging that offence.
- Before a common law defence such as self-defence, necessity, or honest and reasonable mistake of fact can be left to a jury, there must be a proper evidentiary basis. A logical connection between the act charged and the claimed defensive purpose is required; publishing a child's name on social media was found to have no such connection to protecting the child from harm.
- A trial judge is entitled, and generally obliged, to correct a misstatement of law made to a jury, including a submission that the jury may acquit contrary to the law. The Court of Criminal Appeal confirmed that directing jurors to apply the law and act on the evidence is consistent with their proper constitutional role.
Legislation and Cases Referenced
Legislation:
- Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 43, 105
- Criminal Appeal Act 1912 (NSW), ss 5, 5C, 6
- Criminal Procedure Act 1986 (NSW), ss 16, 17, 20, 21, 126, 130
- Crimes Act 1900 (NSW), ss 178BB, 418
- Crimes (Appeal and Review) Act 2001 (NSW), s 107
Cases:
- Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299
- Bell v State of Tasmania (2021) 274 CLR 414; [2021] HCA 42
- Broome v Chenoweth (1946) 73 CLR 583; [1946] HCA 53
- Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21
- Doja v R [2009] NSWCCA 303
- Lodhi v R [2006] NSWCCA 121
- Oblach v R (2005) 65 NSWLR 75; [2005] NSWCCA 440
- R v Burgess; R v Saunders [2005] NSWCCA 52
- Rockdale Beef Pty Ltd v The Industrial Relations Commission of NSW [2007] NSWCA 128
- Rogers v R (1996) 86 A Crim R 542
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35