New South Wales Supreme Court CITATION : R v LMW [1999] NSWSC 1111 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 070031/99 HEARING DATE(S) : 15 November 1999 - JUDGMENT DATE : 17 November 1999 Regina PARTIES : LMW (Accused) Nine Network Limited, Seven Network Limited, Australian Broadcasting Corporation JUDGMENT OF : Studdert J G. Smith (Crown) COUNSEL : P. Zahra (Accused) T. Blackburn (Nine Network Limited, Seven Network Limited, Australian Broadcasting Corporation) Office of the Director of Public Prosecutions (Crown) SOLICITORS : Legal Aid Commission (Accused) Gilbert & Tobin (Nine Network Limited, Seven Network Limited, Australian Broadcasting Corporation) CATCHWORDS : Application for witness to give evidence in the absence of the media ACTS CITED : Children's (Criminal Proceedings) Act 1987 DECISION : Application refused IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION STUDDERT J Wednesday 17 November 1999 070031/99 REGINA v LMW JUDGMENT (On application concerning the proposed evidence of BWI) 1 HIS HONOUR: The Crown has made application for the following orders: "3. That the evidence (including the cross examination) of the witness known under the pseudonym of 'BWI' be given in closed Court to which members of the public and the media shall be denied access except - (i) legal representatives of the accused and the Crown; (ii) support persons for the witness 'BWI' 4. That publication of the evidence given by the witness 'BWI' be prohibited except as between the Crown, the accused, and his legal representatives." 2 The application has been supported by the following affidavit evidence: (i) the affidavit of Siobhan Herbert; (ii) the affidavit of Susan Blacker. 3 Mr Blackburn, appearing in the interests of television networks, was given leave to appear to oppose the application. 4 Before considering the evidence, it is appropriate to state important matters of principle. 5 There is a very important public interest in the open administration of justice, and it is only in exceptional circumstances that this court should accede to an application such as that which the Crown now makes: see, generally, John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465, and in particular the judgment of McHugh JA at 476-477; David Syme & Co Limited v General Motors Holdens Limited (1984) 2 NSWLR 294, and in particular the judgment of Samuels JA at 310; Raybos Australia Pty Limited v Jones (1985) 2 NSWLR 47 at 52-54; R v Richards & Anor [1999] NSWCCA 114. 6 In Richards the Chief Justice said at paras 37-39: "37. The public interest in the open administration of justice has frequently been reiterated. The paramount duty of the courts in administering justice according to law is to ensure that justice is done. All else is subservient to the discharge of this duty. In the ordinary course, court proceedings are conducted in public and exposed to the catharctic glare of publicity. Publicity of proceedings is one of the great protections against the exercise of arbitrary power and a reassurance that justice is administered fairly and impartially. As Lord Hewart put it in R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 'Justice must not only be done but be seen to be done'. 38. The courts should be open to all, so that anyone who wishes may see how justice is done. The privilege belongs to the public generally and no special privilege is conferred on those who report proceedings. In this regard I refer to the observations of Samuels JA in the case of David Syme & Co Limited v General Motors Holden Limited (1984) 2 NSWLR 294 at 310 where his Honour said: 'It is well established that in the ordinary course the courts will conduct their proceedings in public. It is fundamental that the courts should be open to all, in order that all who are minded to do so may see how justice is administered...that entitlement is not limited to those who have business in the courts as litigants; nor, I myself would add, does it confer any special privilege upon those who report proceedings for the press or electronic media. The privilege to see what the courts do and say belongs to the public generally'. 39. It is only in wholly exceptional circumstances, where the presence of the public or public knowledge of the proceedings is likely to defeat the paramount duty of the courts, that the courts may proceed in camera." 7 I must heed the principles stated in the cases to which I have referred when considering the present application. However, I would add that s 10(1) of the Children (Criminal Proceedings) Act 1987 contemplates that where criminal proceedings relate to a child the media is nevertheless "entitled to enter or remain" in court, "unless the court otherwise directs". The court should only "otherwise direct" in accordance with the principles in the general law to which I have already made reference. 8 What then are the wholly exceptional circumstances which would warrant the making of the orders sought by the Crown and which Mr Zahra, on behalf of the accused, does not oppose? 9 The witness to whom the application relates was seven years of age when earlier this year he gave evidence at the committal proceedings concerning the drowning of the deceased. Susan Blacker is a psychologist who, according to her affidavit, has attended at several conferences with this witness and his mother. The most recent of these conferences appears to have been on 4 November 1999. Miss Blacker's assessment on that occasion was that the young child was extremely agitated and defiant "to the point of being uncontrollable". He said he would not go to court and that Miss Blacker could not make him go. Miss Blacker recorded in the notes to her affidavit: "[BWI's] general health again gave me cause for concern, today. He appears increasingly pale and thin and has a physical appearance like that seen in failure to thrive children. During the last few weeks I noticed a stutter developing in [BWI's] speech and today [BWI] seemed unable to speak without stuttering most words. During a very brief period of work of not more than five minutes I asked [BWI] some questions about what he thought and felt today about going to court as a witness. During this mostly one sided discussion, [BWI] had several brief episodes of about thirty seconds each, resembling Petit Mal epileptic seizures in quick succession and very shortly after these episodes he began to fall asleep. Extreme tiredness to the point of exhaustion and sleep after an episode may be seen in sufferers of epilepsy." 10 The opinion which the psychologist expressed in paras 10 and 11 of the notes attached to her affidavit was in these terms: "10. Given [BWI's] behaviour today and fragile health especially when placed in any stressful situation I seriously doubt his ability to give evidence in any effective manner. If [the boy's father] could be persuaded to support [BWI] attending court, even if he did not agree with the process, then [BWI's] effectiveness as a witness may be improved. [The boy's father] may benefit from hearing information about ways in which this Office and the court are attempting to support [BWI] as a witness and protect him from exposure to the media. 11. In this very difficult matter, [BWI] is required to give evidence about what has been, for a young child, a very traumatic experience with very traumatic memories. Given the current conflict in [BWI's] family about him being a witness and lack of support from his father for attending court, [BWI] will continue to struggle as a witness. Under these circumstances, there is a very real possibility that [BWI's] wellbeing may be further damaged and his currently rather fragile health may further deteriorate should he be required to give evidence in this matter." 11 Miss Herbert, as the solicitor with the conduct of this matter in the Office of the Director of Public Prosecutions, has deposed that she was present at a conference with the Deputy Senior Crown Prosecutor when he spoke with the father of the witness and overheard the utterances of the father of the witness, who said: "[BWI] won't be attending, mate… He's had nightmares about this and about this stuff. It's too much for him. It's too much for him." Later, it seems in another telephone conversation that same day, the boy's father agreed to attend a conference with counsel on 8 November 1999 but did not do so. The Crown informed this Court however that it is expected that the young child will give evidence when required. However, it was submitted that the giving of that evidence would be facilitated if it is given in closed court and in circumstances in which the media is excluded. Hence the current application. 12 I readily accept, as the affidavit evidence indicates, that for this child the experience of giving evidence at the committal proceedings was an ordeal. The evidence was given after the presiding magistrate had made orders prohibiting the reporting of his name or anything that identified him. Notwithstanding such orders there was extensive media publicity and in the course of a television programme the child was seen walking, albeit with his face pixilated. According to Miss Herbert she was informed that the child was recognised by a significant number of people. Moreover, his evidence was followed by two items in a newspaper and the author of each item was critical, indeed highly critical, of the manner in which the evidence had been given. 13 In essence then the Crown submits that the evidence of this witness should be given in closed court and in the absence of the media because of the manner in which the child was treated when he last gave evidence and because of the concern of his parents prompting their lack of co-operation and encouragement for him to assist the Crown. 14 For his part, Mr Zahra has informed the Court that he wishes that this child should give evidence and he therefore supports the application since the orders sought would encourage the child to give evidence and to facilitate his doing so. 15 On the other hand, Mr Blackburn has argued that the evidence falls short of establishing the sort of exceptional circumstances which would warrant the making of the orders the Crown seeks. Significantly, he submitted, there is no affidavit evidence before this Court from either the mother or the father of the witness. 16 I have reflected on the competing submissions overnight. If I was persuaded that the practical consequence of a refusal to make the orders sought would be that efforts to have the child give evidence would be frustrated or that the quality of his evidence would be affected by his giving the evidence in the absence of such orders, the application may well have had a different outcome. However, on the evidence before me, I am not persuaded on either point. 17 As I have observed, the Crown has informed the Court that it is expected that the witness will be available to give evidence when called. It is not contemplated that this young child will give evidence in the courtroom in which this trial is being conducted. On the contrary, it is proposed that his evidence will be taken from a room removed from this court complex and will be heard and seen by videolink. I have already made orders that this child not be identified by name and that this child should not otherwise be identified by any visual means. Whilst I do not make light of the stresses which giving evidence will place upon the witness in the circumstances in which it is intended that it be given, it seems to me that such stresses ought to be significantly less than they would have been if he was required to give evidence in this courtroom. 18 In the course of the application the Crown has been critical of the conduct of certain of the media in contributing to the distress of the witness at the time of and consequent upon the committal proceedings. However, I do not approach this application upon the basis that the media are going to be irresponsible in the discharge of their duties at this trial. 19 The Crown referred to evidence in the affidavit of Miss Herbert as to the way in which the witness seemingly acted at the committal proceedings "in an undisciplined, mirthful and disruptive manner". The evidence indicates that the public gallery of the courtroom was occupied by journalists who responded to the behaviour of the witness with laughter and seemed therefore to encourage the child. Whether that be so or not, I do not anticipate that there would be a repetition of any such behaviour by any member of the audience at this trial. That simply would not be allowed to occur. In saying that, I am not for one moment implying any criticism of the conduct of the learned magistrate of the committal proceedings. 20 It is also relevant that in the manner in which the witness will give evidence by videolink his view of the courtroom will be limited. He will not see the accused. He will see the judge and he will see counsel, but he will not see any journalists who are in court because they will be out of the view of the camera. 21 I referred earlier to the conclusions expressed by Miss Blacker, in which she recorded the serious doubt she entertained as to the child's ability to give evidence in any effective manner. However, as the evidence in support of this application stands, and in the absence of any expert evidence to this effect, I do not conclude that the child's ability to give evidence by video in the circumstances that are contemplated would be any less than his ability to give evidence in circumstances where the media has been denied access to the courtroom. 22 In my opinion exceptional circumstances such as would warrant the exclusion of the media from the courtroom whilst the child's evidence is being given have not been established and I decline to make the orders sought in paras 3 and 4 of the Crown's application. 23 The orders that I made earlier however under ss 10 and 11 of the Children (Criminal Proceedings) Act 1987 of course remain in force to the extent that those orders concern the child the subject of the Crown's application. His name is not to be published or broadcast at any time. There is to be no publication or broadcast of any information, any picture, any drawing or other material which either identifies the child or which is likely to lead to his identification. ********** Last Modified: 11/18/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.