Two church-goers who made Facebook posts which named a child who was subject to a Children’s Court proceeding, have lost an appeal against their convictions.
The NSW Court of Criminal Appeal dismissed the bid by Paul Burton and Andrew Katalaris, from Newcastle’s Ubuntu church and Ubuntu Wellness Centre, who breached Section 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) with their 2017 posts on the social media platform.
Four-year-old “CWS” was at the centre in May 2017 when he was removed from his parents by the NSW Department of Family and Community Services (FACS) on the ground he was at immediate risk of harm through malnutrition. Children’s Court proceedings began five days later.
In a decision delivered on Tuesday, the appeals court described how Mr Burton had been at the centre when the youngster, who lives with severe epilepsy and cerebral palsy, was removed. His parents had befriended Mr Burton after they arrived in Newcastle from Queensland following an amber alert being issued for CWS.
Mr Burton made four posts and Mr Katelaris one, which referred to CWS by name and criticised FACS, in the months after the removal.
The pair was convicted in the District Court in November last year.
Representing themselves, they appealed on grounds including that the indictment was invalid as it failed to properly charge offences, that there was a need to prove the date of the offences, that there was a need to prove harm to the child, and that the jury had not been properly told about its right to acquit.
Justices Adamson, Dhanji and Weinstein held there could be no misunderstanding as to the basis upon which the Crown asserted that the offences were committed.
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”, they found.
They found there was no proper evidentiary basis on which to leave the defence of necessity, or honest and reasonable mistake of fact, to the jury.
They stated 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 the offence has been committed.
They also stated that the only date which was essential was the date on which the proceedings in the Children’s Court were filed, 24 May 2017, and the Facebook posts were made after that date.
Also, it is not an element of an offence under s 105(2) of the Act that the Crown prove harm to the child concerned or that the child’s privacy was affected, they stated.
Each appellant was cross-examined about the reasons for the posts. One post from Mr Burton said in part:
“Today is 46 days since our Church was desecrated and a family whom came to us for refuge was violently assaulted and their child forcibly removed from their loving arms … If [full name of CWS] is not physically reunited in some capacity with his family then I am going to reunite the family.”
It contained a video of the removal of CWS. Subsequent posts from Mr Burton and Mr Katelaris contained videos and/or text discussing correspondence with FACS and details of the matter.
Burton said he was “trying to get the attention of the courts”, and Mr Katelaris said “I was aware of the law, and I was aware that it had been used for an improper purpose to cover up the crimes of the department, rather than protect the privacy of the children”.
In respect of a self-defence argument, the trial judge had said: “These were alternative ways to address any concerns and attempt to have the child reunited with his family.
“Their actions in publishing the child’s name in connection with the Children’s Court proceedings cannot on any view be considered an act of self-defence in favour of the child, or an objectively reasonable response to the situation that the accused subjectively believed he faced,” she said.
In respect of a necessity argument, the trial judge had said: “Despite the submissions of both accused, the evidence reflects that the state of affairs with which they were confronted was not one of imminent peril.
“The posts and broadcasts were approximately seven weeks after the child was removed, and they were aware that the matter had been before the Children’s Court on at least three occasions.
“Other than the speculative views of both accused, there was no evidence that the child was in fact at risk of death or serious harm given he was under the care of medical professionals and a state department which was itself subject to the authority and directions of the Children’s Court.”
Justices Adamson, Dhanji and Weinstein said Mr Burton exhibited a blatant disregard for the law.
“He positively invited prosecution by acting in contumelious disregard of s 105 of the Act, in circumstances where the consequences of publishing or broadcasting CWS’s name had been pointed out to him in unequivocal terms by FACS,” they said.
They dismissed both appeals.
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