New South Wales Supreme Court CITATION : R v Thomas Sam; R v Manju Sam (No. 5) [2009] NSWSC 543 HEARING DATE(S) : 5 May 2009 JUDGMENT DATE : 6 May 2009 JUDGMENT OF : Johnson J at 1 EX TEMPORE JUDGMENT DATE : 6 May 2009 DECISION : Application by Nationwide News Pty Limited, Fairfax Media Limited and the Nine Network Limited to publish or broadcast photographs within Exhibit B during the trial is declined. CATCHWORDS : CRIMINAL LAW - jury trial - manslaughter by criminal negligence - alleged omission by parents to obtain appropriate medical assistance for infant daughter - photographs of child tendered as exhibit in trial - application by media for release of photographs in exhibit for publication or broadcast during the trial - discretionary considerations - risk of jury being distracted directly or indirectly by reporting of trial accompanied by publication or broadcast of photographs of child - application declined for release of photographs during trial Criminal Procedure Act 1986 LEGISLATION CITED : Supreme Court Practice Note SC Gen 2 "Access to Court Files" Children (Criminal Proceedings) Act 1987 CATEGORY : Procedural and other rulings R v Xu (No. 1) (2005) 152 A Crim R 17 R v Benbrika (No. 26) [2008] VSC 452 R v Sam (No. 1) [2009] NSWSC 542 Leach v R (2008) 183 A Crim R 1 CASES CITED : John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512 R v Richards (1999) 107 A Crim R 318 Skaf v R [2008] NSWCCA 303 Gilbert v The Queen [2000] 201 CLR 414 Jago v District Court of New South Wales [1989] 168 CLR 23 Fittock v The Queen [2003] 217 CLR 508 Regina (Crown) PARTIES : Thomas Sam (Accused) Manju Sam (Accused) FILE NUMBER(S) : SC 2008/19298; 2008/12927 Mr M Tedeschi QC; Ms G O'Rourke (Crown) COUNSEL : Ms C Davenport SC (Accused/Thomas Sam) Mr T Molomby SC (Accused/Manju Sam) Ms S Chrysanthou (Nationwide News Pty Limited, Fairfax Media Limited and the Nine Network Limited) Solicitor for Public Prosecutions (Crown) SOLICITORS : Karp O'Neill (Accused/Thomas Sam) Legal Aid NSW (Accused/Manju Sam) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST Johnson J 6 May 2009 2008/19298 - Regina v Thomas Sam 2008/19297 - Regina v Manju Sam JUDGMENT (No. 5) (Re application by various media interests to publish or broadcast a number of photographs within Exhibit B; see T123) 1 JOHNSON J: Application is made, through counsel, by Nationwide News Pty Limited, Fairfax Media Limited and the Nine Network Limited for the release of certain photographs which are in evidence in the trial, so that those photographs may be published or broadcast in conjunction with reporting of these proceedings by the media. 2 The application is confined to photographs 1 to 6 and photograph 15 in Exhibit B. 3 The Crown did not object to the application. Senior Counsel for each Accused have opposed the application. It remains a matter for me, as the trial Judge, to determine the application. 4 Although no reference was made to them in submissions, I should note that s.314 Criminal Procedure Act 1986 provides for media access to court documents for the purpose of compiling a fair report of the proceedings for publication, and that Supreme Court Practice Note SC Gen 2, entitled "Access to Court Files", touches upon similar ground to that raised on this application. 5 At the outset, I observe that there is no impediment to members of the media having access to the exhibits in the trial, including all the photographs in Exhibit B, for the purposes of compiling, for publication, a fair written report of the proceedings. The trial is proceeding in open court and there is no impediment to the media publishing the evidence given, and submissions made, in the presence of the jury. The present issue involves the additional step of the release of photographic exhibits so that they may, in turn, be reproduced in the media as part of a report of the proceedings. 6 As the trial Judge, I have a discretion whether to release the photographic exhibits for further publication in this way: R v Xu (No. 1) (2005) 152 A Crim R 17; R v Benbrika (No. 26) [2008] VSC 452 at [4]. It is necessary to consider the circumstances of this case to determine how that discretion should be exercised. 7 The Accused, Thomas Sam and Manju Sam, are standing trial for the manslaughter of their daughter, Gloria, who died on 8 May 2002, at the age of nine months. The Crown alleges that the Accused are guilty of manslaughter by way of gross criminal negligence arising from their failure to treat, or properly treat, or arrange for treatment of conditions from which Gloria suffered from November 2001. 8 On 4 May 2009, I declined to make a non-publication order sought by the Accused with respect to their names, and I acceded to a Crown submission that publication of the name of the deceased child ought be permitted in this case under s.11(4)(b)(i) Children (Criminal Proceedings) Act 1987: R v Sam (No. 1) [2009] NSWSC 542. I was of the opinion that the public interest required such a course in this case. In this respect, I had regard to the open justice principle and the rationale underlying s.11, being the protection of child witnesses, victims and defendants. In circumstances where the child victim was deceased and the parents were standing trial for her manslaughter, I considered that the underlying purpose of s.11 would not be undermined by an order that the provision not apply in this case. 9 Like Basten JA in Leach v R (2008) 183 A Crim R 1 at 3 [3]-[4], I consider that where the child victim is no longer alive as a result of an alleged criminal act, the purpose of the prohibition contained in s.11 is by no means self-evident. It is clear, however, that s.11 applies to such a case. Thus, it was necessary for me to determine whether the Court should permit publication by application of the public interest test in s.11(4A) of the Act. 10 The photographs in Exhibit B, which are the subject of this application, are a selection only of the photographs of Gloria which are in evidence. Photographs 1 - 6 were taken between 18 July 2001 and 14 October 2001 and depict an apparently happy and healthy baby. Photograph 15 was taken on 13 February 2002 and depicts visible signs of the condition affecting the child, albeit with the child sitting on a chair and with the condition not being as graphic as it is in the remaining photographs within Exhibit B. The media do not seek to publish other more graphic photographs within Exhibit B. 11 Ms Chrysanthou, counsel for the media interests, submits that the photographs form part of the evidence tendered in open court and that publication of them ought be permitted, as part of the process whereby the media may report the proceedings. Emphasis was placed upon the open justice principle, and it was submitted that the administration of justice will be enhanced if the media is able to publish the photographs. It was submitted that the photographs are in evidence, and that the jury have seen them, and that no good reason exists for the media not being able to publish them. It was submitted for the media interests that the order which I made under s.11 points to the public interest in the publication of the identity of the child, and that the photographs are but a different form of evidence concerning her identity, being pictorial as opposed to the written word. 12 As I have mentioned, the Crown does not oppose the present application and makes no further submission with respect to it. 13 Senior counsel for each Accused oppose the application. Each points to the heightened emotional aspects of this trial, and the risk of distracting jurors by reports which combine photographs of the deceased child with reports of what the Crown allege happened to her, in the hands of each of the Accused. 14 How should the Court exercise its discretion in this case? The Court has regard to the open justice principle. That principle has been described as a fundamental axiom of the Australian legal system: John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512 at 525 [60]. 15 In R v Richards (1999) 107 A Crim R 318, Spigelman CJ observed at 324 [37]: "The public interest in the open administration of justice has frequently been reiterated. The apparent 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 cathartic 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 Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 , 'Justice must not only be done but be seen to be done'." 16 The present trial is proceeding before a jury. The subject matter of the trial is emotionally challenging for all concerned, including the jury. Before empanelling the jury, both the Crown Prosecutor and I referred to the challenging nature of the trial given its subject matter (T13-14). 17 I infer that any publication or broadcast of the photographs, the subject of this application by the media, would juxtapose the photographs of a healthy child with a report of the decline in health and fate of the child. It might be expected that such images would be repeated, from time to time, as the trial progressed. 18 I have determined that the public interest requires publication of the name of the deceased child so that s.11 Children (Criminal Proceedings) Act 1987 does not apply. 19 The principal concern which I have with the present application is the likely tendency of media publicity to distract the jury from their single-minded attention to the evidence adduced in this courtroom. I have directed the jury to disregard media coverage of the trial (T31) and to avoid discussion with family and friends of the issues in the trial (T32). These are orthodox directions to a jury in a criminal trial. 20 This is a trial with a very significant emotional element. The jury will be directed in due course (again in accordance with orthodox principle) concerning their duties and obligations, as a jury, to act impartially and dispassionately, and that they must not allow sympathy or emotion to sway their judgment. 21 Should the media be permitted to publish or broadcast photographs of the child, there is a real concern that the emotional aspects surrounding the public reporting of this trial will be heightened, and heightened substantially, and on an on-going basis until the trial is concluded. Of course, the jury have seen the photographs in question. They will be familiar to them. However, that is not the issue. The concern is the potential distraction of the jury by a heightened emotional level of reporting, accompanied by visual images of the child. This process, in my view, would tend to increase the level of enquiry and scrutiny from family and friends of the jurors, which could only operate to distract them, or tend to distract them, from their duties and obligations as jurors. 22 The risk of publicity during a trial is a well-known phenomenon in the criminal law. As the Court of Criminal Appeal observed in Skaf v R [2008] NSWCCA 303 at [28]: "If a trial has previously attracted or is likely to attract publicity, judges are careful to remind jurors that they are to ignore any publicity. The contemporary view is that it is not necessary for the jury to be sequestered with exposure to the media thereby eliminated. We accept that jurors will be faithful to the directions given by the trial judge and, if they happen upon a media discussion of the events, will be able to discriminate between the evidence and media reporting of the events." 23 The Court of Criminal Appeal in Skaf v R referred to statements by McHugh J in Gilbert v The Queen [2000] 201 CLR 414 at [31]-[32], where his Honour observed that a criminal trial on indictment proceeds on the assumption that jurors are true to their oath. His Honour observed that on this assumption, which is fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one could have confidence in any verdict of a criminal jury, or in the criminal justice system, whenever it involves a jury trial. 24 The Court of Criminal Appeal observed in Skaf v R at [29], that the obligation which the law accepts is that an accused person's trial must be fair. The Court referred to a statement of Mason CJ in Jago v District Court of New South Wales [1989] 168 CLR 23 at 33-34 that it should not be overlooked that the community expects trials to be fair. 25 In Fittock v The Queen [2003] 217 CLR 508 at 515 [21]-[22], McHugh J referred again to the role of jurors. His Honour observed at 515 [21]: "It is of course fundamentally important that juries decide cases impartially on the evidence and in accordance with the trial judge's directions." McHugh J observed, at 515 [22], that there was a time, not long ago, when juries were sequestered, but that the jury system has been evolving for centuries and that: "Today, the ordinary rule is that, at the end of each day's hearing, jurors are free to resume their usual activities. Usually they are given a warning not to discuss the case with outsiders. If the trial judge learns that a juror has discussed the case with an outsider, the judge may discharge the juror and sometimes the jury itself. But it is a matter for the discretion of the judge who will consider what justice and the appearance of justice require." 26 The jury is not sequestered in this trial. I should approach the present application upon the basis that the jury will follow directions which have been, and will be, given. However, the Court should be concerned to minimise the distracting impact of any publication to ensure that jury directions have effect and are not undermined in this case. 27 All of this serves to emphasise, in my view, the need for the Court, on the present application, to have regard to the impact upon the level of publicity of this trial if the photographs to which this application relates are allowed to be published. In my view, they would provide a significant distraction and place at risk the fair trial of the Accused. 28 I return then to the discretionary determination to be made. To prevent the media, during the currency of the trial, from publishing the photographs is, in my view, a small limitation upon the media's ability to publish the proceedings. I am satisfied that the publication of the photographs would tend to distract the jurors from their task, and that this is not in the interests of justice, the prime consideration which must guide the exercise of discretion on this application. 29 It remains open for application to be made, at a later time after verdict, with respect to publication of the photographs. In the circumstances of the case, and in the exercise of discretion, for the reasons which I have given, I am not prepared, at this time, to release the subject photographs contained in Exhibit B to the media so as to permit their publication or broadcast. 30 The application is declined. ********** 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.