R v LMW [1999] NSWSC 1109

New South Wales Supreme Court CITATION : R v LMW [1999] NSWSC 1109 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 070031/99 HEARING DATE(S) : 15 November 1999 - JUDGMENT DATE : 17 November 1999

PARTIES : Regina LMW (Accused) JUDGMENT OF : Studdert J

COUNSEL : G. Smith (Crown) P. Zahra (Accused) SOLICITORS : Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Accused) CATCHWORDS : Application for permanent stay of proceedings R v Yuill (1993) 69 A Crim R 450 CASES CITED : R v Glennon (1992) 173 CLR 592 R v Bell (unreported, NSWCCA, 8 October 1998) R v Milat (unreported, NSWCCA, 26 February 1998) DECISION : Application refused

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

STUDDERT J

Tuesday 16 November 1999 070031/99 REGINA v LMW

JUDGMENT (On application for permanent stay)

1 HIS HONOUR: When an indictment was presented yesterday charging LMW with the manslaughter of Corey Davis, Mr Zahra, who appears for the young child so charged, made an application for a permanent stay of proceedings. Mr Zahra relied upon an affidavit of his instructing solicitor, Matthew Johnston, sworn today, and upon newspaper reports and a video relating to the accused. 2 The deceased, who was a young child, indeed some years younger than the accused, met his death by drowning on 2 March 1998. The accused eventually appeared at the Bidura Children's Court and committal proceedings were heard on 28 and 29 January 1999. There were media reports on these proceedings. The hearing of evidence on the dates I have mentioned was followed by submissions by counsel on 23 March 1999 and then on 28 April 1999 the learned magistrate made his decision, itself the subject of extensive reporting by the media. The learned magistrate made it clear that the evidence satisfied him that the accused had caused the death of the deceased, and that the accused knew what he was doing was wrong, but the magistrate went on to determine that the evidence was not strong enough to justify a manslaughter trial before a jury. The magistrate was reported as saying: "With a best will in the world, the Supreme Court is a court for adults, and many members of the community would find a child defendant to be quite out of place in that environment…The circumstances of the case are such that a jury would be more likely to interpret the incident as an act of bullying that went wrong." 3 The magistrate's decision was followed promptly by a decision taken by the Director of Public Prosecutions on 4 May 1999 to proceed against the accused on an ex officio indictment. Hence the indictment which has prompted the present application. 4 Mr Zahra seeks a permanent stay of proceedings upon the basis that the publicity which has been given to this matter is such that the accused cannot have a fair trial. That application is opposed by the Crown. 5 The material which has prompted this application comprises newspaper reports tendered as Exhibit A and a video recording of televised programmes tendered as Exhibit B. That material has been supplemented by further newspaper reports tendered by the Crown as Exhibit 1. 6 I have closely considered all this material. It would not be useful for me to set out in this judgment the detail of the various articles, nor would it be useful for me to set out what I saw and heard in the video, Exhibit B, played in Court. All this material merited close attention and I have endeavoured to give it close attention. It is, I consider, a fair assessment that the media material in question includes