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Reporting Matters of Legitimate Public Interest – The William Tyrrell Case

William Tyrrell disappeared on 12 September 2014, then aged 3 years of age.  A coronial inquest into his disappearance is currently before the NSW Coroner’s Court.  William Tyrrell’s disappearance is one of the most reported police investigations in NSW history.

One interesting aspect of the investigation is the NSW Court decisions in relation to publication of the fact that William Tyrrell was, at the time of his disappearance, placed in foster care under the parental responsibility of the Department of Family and Community Services.  William and his older sister had been placed with foster carers and were known under the legislation as children in “out of home care” pursuant to section 135 of Children and Young Persons (Care and Protection) Act 1998 NSW. This fact was not reported by the media until August 2017, almost 3 years following William’s disappearance.  The publicity surrounding his disappearance had generally referred to the carers as William’s parents. 

In 2016 the Department of Family and Community Services commenced proceedings in the NSW Supreme Court against the respondent, Allanna Pearl Smith, who described herself as an advocate for children’s rights and interests.  Ms Smith was a member of a group which posted to a Facebook page known as the “Walking Warriors for Missing Children“.  Ms Smith was seeking to promote a coronial inquest into William’s disappearance and publish a petition and online statements, which would include information to the effect that William was in foster care at the time of his disappearance. 

The Department brought proceedings against Ms Smith seeking an injunction to restrain her from publishing the fact that William was placed into foster care and requiring certain posts to be removed from a Facebook page.  The Department argued that the Court should restrain the publications in the exercise of the Court’s parental jurisdiction, and in the alternative, that the proposed publications would involve the commission of an offence under section 105 of the Children and Young Persons (Care and Protection) Act 1988 NSW.

On 23 January 2017 Justice Brereton delivered a judgment.  His Honour determined that section 105 of the Act did not prohibit disclosure of the mere fact that William was in care.  His Honour balanced the competing considerations including the welfare of the child against the competing rights and interests of others, including the public.  His Honour determined that the fact that William had disappeared while he was in the parental responsibility of the Department and in the care of departmentally approved carers, was a matter of legitimate public interest, including in relation to accountability and scrutiny of the out of home care system and in the accuracy of reporting of the circumstances of William’s disappearance.  The Court considered that potential jeopardy to William’s welfare was somewhat remote given the duration of his disappearance and tragic probability that William was no longer alive.

Justice Brereton therefore dismissed the Department’s application for an injunction.

The Department appealed to NSW Court of Appeal.  On 23 August 2017 the trial Judge’s decision was upheld by three Judges of the Court of Appeal.

Following this decision there was widespread reporting in relation to William’s care status including that he went missing from his foster grandmother’s backyard on the NSW mid-north coast town of Kendall in 2014. 

The coronial inquest continues sitting in August 2019. The Deputy State Coroner will consider over 600 persons of interest and 15,000 pieces of evidence.  In a recent sitting, the Coroner closed the Court for part of the inquest.  The Nine Network and Nine newspapers made an application that it was in the public interest that the Court remain open, or alternatively evidence should be released in redacted transcripts.  That application was supported by a lawyer representing a person of interest in the case, and also William’s biological father.

Counsel assisting the Coroner and the lawyer representing the NSW Police Commissioner opposed Nine’s application. 

The State Coroner, Harriet Grahame, ruled it was in the interests of justice for some witnesses to give evidence behind closed doors and be assigned pseudonyms. The Coroner said in her decision that public scrutiny of the Court and its processes was an important factor in delivering justice, but the publication had the potential to frustrate its operation. The Deputy Coroner said the issue was not about freedom of speech of the press but the proper operation of justice.

The inquest continues.

Liability limited by a scheme approved under the Professional Standard Legislation

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