R v Shan Shan Xu [No 1] [2005] NSWSC 73

Reported Decision : 152 A Crim R 17

New South Wales Supreme Court

CITATION : R v Shan Shan Xu [No 1] [2005] NSWSC 73

HEARING DATE(S) : 14/02/05 15/02/05

JUDGMENT DATE : 15 February 2005

Common Law Division JURISDICTION : Criminal List

JUDGMENT OF : Kirby J

DECISION : Application refused.

CATCHWORDS : Criminal Law - application by ABC for release of video tape exhibit - video shown in open court - potential harm to accused - interests of open justice - interests of person with mental illness - whether material wholly exceptional such that should not be released.

R v LMW [1999] NSWSC 1111 David Syme & Co Ltd v General Motors Holden Ltd [1984] 2 NSWLR 294 CASES CITED : John Fairfax Publications v District Court of New South Wales [2004] NSWCA 324 John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 R v RIK [2004] NSWSC 75

Regina PARTIES : Shan Shan Xu

FILE NUMBER(S) : SC 2004/70015

P Miller (Crown) Ms D Yehia (Acc) COUNSEL : A T S Dawson (ABC)

Ms M Sleeton (DPP) SOLICITORS : Ms J Harris (LAC)

LOWER COURT JURISDICTION :

Extempore - Revised IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

DAVID KIRBY J

Tuesday 15 February 2005

2004/70015 REGINA v Shan Shan XU

JUDGMENT [No 1] - On application of ABC for access to Exhibit A, being a CCTV video footage. 1 KIRBY J: Application has been made on behalf of the ABC for access to an exhibit in the trial which is taking place before me concerning the accused Shan Shan Xu. Ms Xu is charged with the murder of her son, Stephen Xu, on 31 March 2003. 2 The matter has proceeded before me, on the election of the accused, and with the consent of the Crown, as a judge sitting alone. It began with the Crown tendering material which was marked as Exhibit A and which included a video which is the subject of this application. 3 The Crown case is that Ms Xu took her son, who was then aged four and a half years, by train from Central to Meadowbank. She alighted and spent the afternoon with her son in a small park which is adjacent to a wharf in that location. 4 Being a wharf controlled by the transport authority, it is fitted with closed circuit television. Repeatedly throughout the afternoon there are images of Ms Xu and her deceased son which appear in that television footage. 5 At 6.41 pm, after darkness had fallen, the footage shows images of Ms Xu making her way with Stephen down the ramp which leads to the wharf. She is holding his hand. As they reached the end she paused. She then gathered him in her arms and again she paused. After some time, the footage shows Ms Xu and her son disappearing from the end of the wharf, such that one would infer that she then jumped into the Parramatta River below. 6 There is evidence within the various statements from exhibit A of what happened thereafter. She was seen by various people, including fishermen and fisherwomen, who were positioned on the nearby pylons of the railway bridge, which was to the west. She was also seen by people who were using the river for rowing and boating. Gradually she either swam or drifted to the west in the vicinity of the next peninsular which is Homebush Bay. 7 At roughly 7.55 pm, that is some considerable time after her entry into the water, she was noticed by passengers on a ferry which was operating along the Parramatta River. She was heard to cry for help. The boat's Master was persuaded to turn the boat around and the boat then went to her rescue. As they endeavoured to assist her and pull her from the water it became obvious that she was clutching her child. She was then taken on board, as was the child. Efforts were made to revive the child. An ambulance was summoned and the boat continued to the nearby wharf. Ambulance officers had by that time arrived. Attempts to revive the child were unsuccessful. 8 The Crown case, in the TV footage, included not only the truly horrific final moments of Stephen as the pair walk towards the end of the wharf, but several other poignant scenes, where mother and child played during the course of the afternoon in a section of the wharf set aside for passengers. The child can be seen jumping from one seat to another, like any normal four and a half year old. 9 The matter has proceeded after a plea of not guilty by the accused, it being indicated at the time of entry of that plea that she raised the defence of mental illness. 10 An extensive psychiatric history has accompanied the material which has been tendered. It includes the history in the months before these tragic events. It also includes her subsequent progress. It incorporates the opinions of doctors who have been qualified by the Crown and by the accused to express a view as to the defence that she raises. In each case those doctors support that defence, that is, that at the time of these events she was suffering from a major depressive illness with psychotic features such that she did not know the nature and quality of her act or if she did, she had no appreciation of the fact that it was wrong. 11 The trial has reached the point where the evidence is now complete. I have yet to hear submissions from counsel. I expect that counsel for the Crown and for the accused with one voice, will submit that I should find in this case that the accused has made out, as a matter of probability, the defence of mental illness. However, that lies in the future. I have yet, for my part, to read all the material and sift through the evidence and form a final view in respect of that matter. 12 However, it can be said, as a prima facie position, that there is a strong basis for finding, on the evidence as it appears to me at this time, that there is such a defence. 13 This matter, when it began, attracted a deal of media interest. There was at least half a dozen, if not a dozen media representatives present. A number of photographers were positioned outside the Court. That interest to some extent has continued. Having regard to matters which have currency in the press at the moment and the interest and legitimate concern of the public concerning matters of mental health, that is perhaps not surprising. 14 However, the particular issue that arises concerns the release of some of the images from the closed circuit television footage. 15 Mr Dawson of Counsel, who very ably represented the ABC, and who has provided helpful written submissions, has indicated that his client has no wish to screen the final moments of this woman's journey with her young son. He has made that submission against the background of certain evidence which was given at the end of yesterday from Dr Nielssen, which included the following comment made by Dr Nielssen, having heard a preliminary debate between counsel for the accused and comments by myself whilst he was waiting to give evidence. Dr Nielssen, forensic psychiatrist of some considerable experience, and no stranger to these courts as an expert witness, said this at page 34: "Your Honour, if it assists, I wonder if I can make a comment on that last application from a psychiatric view. There is some research that shows depictions of suicide attempts in the media leads to imitators and there has been some studies that have shown a rise in suicides after very widely watched stories on suicide. I think it is taught to journalists to be very careful in reporting. I just wonder about seeing a video of someone attempting suicide, it might have some effect." 16 Now, though the matter has been approached with some sensitivity by Mr Dawson and his client in that fashion, it does raise the question of general principle, though I will consider both the general principle and the more limited application made by Mr Dawson. 17 Before turning to the arguments I should refer to the relevant statutory setting within which this issue arises. My attention has been drawn to Practice Note 97 which deals with access to court files by non parties. Rule 2 of that part is in these terms: