Australia, July 9 -- New South Wales Land and Environment Court issued text of the following judgement:

Following a trial by jury, the appellants, Paul Burton and Andrew Katelaris, were each convicted of offences of either publishing or broadcasting the name of a child with respect to whom proceedings before the Children's Court had been brought, contrary to s 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Act). In early 2017, the appellants became associated with the parents of CWS, a four-year-old child. In May 2017, CWS was removed from the care of his parents pursuant to an order made by a delegate of the Secretary of the Department of Family and Community Services. Proceedings in respect of CWS were commenced in the Children's Court. Each of the four counts with which Mr Burton was convicted and the single count with which Mr Katelaris was convicted related to posts uploaded by the appellants to Facebook referring to CWS by name in July 2017.

Mr Burton sought leave to appeal against his convictions on six grounds. Grounds 1 and 2 were based on a contention that the indictment, prior to the amendment of the charges during the course of the trial, was invalid as it failed to properly charge offences. Ground 3 concerned an asserted failure to leave defences the appellants argued had been raised to the jury. Ground 4 concerned the effect of removing the posts. Ground 5 concerned the need to prove the date of the offences and ground 6 the need to prove harm. Mr Katelaris relied on all grounds raised by Mr Burton and sought leave to appeal on a further ground, ground 7, which concerned what could be said to the jury about its right to acquit, even if the offence had been proved. Only grounds 1, 2 and 7 raised a question of law alone and did not require leave.

The Court held (Adamson JA, Dhanji and Weinstein JJ) granting leave to appeal on grounds 3, 4, 5 and 6 and dismissing the appeal:

As to grounds 1 and 2:

(1) Having regard to the simple nature of the offence, and what was necessarily required to establish publishing or broadcasting (that is, that it was done in a form accessible by a person in New South Wales), there could have been no misunderstanding as to the basis upon which the Crown asserted that the offences were committed. The formulation of the charges were, at best for the appellants, imperfect formulations of known offences. The indictment, prior to amendment, was sufficient to invoke the jurisdiction of the District Court (at [68]-[76]).

(2) The amendment to the indictment was made without injustice. Mr Burton drew the trial judge's attention to the defect in the original indictment and the amendment did not require any further evidence to be adduced, nor would it have altered the course of the evidence. The original indictment, though found to be defective prior to the amendment being allowed, was not a nullity (at [77]-[78]).

Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299; Rockdale Beef Pty Ltd v The Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7; Broome v Chenoweth (1946) 73 CLR 583; [1946] HCA 53; Tonari v R [2013] NSWCCA 232; (2013) 237 A Crim R 490 considered; Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349 applied; Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303 distinguished.

As to ground 3:

(3) The evidence adduced, taken at its highest, was manifestly insufficient to cause a reasonable jury to have a reasonable doubt that each of the elements of the defence of self-defence had been negatived by the prosecution. There was no error in the trial judge's ruling that she would not leave the defence of self-defence to the jury (at [91]-[92]).

R v Burgess; R v Saunders [2005] NSWCCA 52; (2005) 152 A Crim R 100; Oblach v R (2005) 65 NSWLR 75; [2005] NSWCCA 440 considered.

(4) Given the lack of logical connection between publication of/broadcasting CWS's full name and protecting him from death or serious injury, there was no proper evidentiary basis on which to leave the defence of necessity to the jury (at [96]).

Veira v Cook [2021] NSWCA 302; (2021) 293 A Crim R 569; Rogers v R (1996) 86 A Crim R 542 considered.

(5) Taking Mr Burton's evidence at its highest, there was no basis for the trial judge to leave the defence of honest and reasonable mistake of fact to the jury (at [98]-[101]).

Bell v State of Tasmania (2021) 274 CLR 414; [2021] HCA 42 considered.

As to ground 4:

(6) The offence under s 105(2) of the Act is complete at the time of publication or broadcast. Whether the publication is removed or the broadcast deleted is irrelevant to whether an offence under s 105(2) has been committed. No error was shown (at [105]-[106]).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197430587d1366761d9546cd)

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