R v Lam (No 30)

[2005] VSC 415

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505 of 2003

THE QUEEN

v

CUONG QUOC LAM & ORS

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JUDGE:	Redlich J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 January 2005 to 19 September 2005
DATE OF RULING:	14 September 2005
CASE MAY BE CITED AS:	R v Cuong Quoc Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 415

RULING NO. 30

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Criminal law- Media access to exhibits – Need for “open justice” and “fair and accurate” reporting – Whether risk that media will misuse exhibits – Whether potential interference with pending proceedings – Access denied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Dean S.C. with Mr P. Southey	Mr  S. Carisbrooke, Acting Solicitor for Public Prosecutions
For Cuong Quoc Lam	Mr S. Grant	Michael Gleeson & Associates
For Hung Tu Van	Mr A. Jackson	Haines & Polities
For Linh Van Nguyen	Mr D. Brustman	Valos Black & Associates
For Thanh Nha Nguyen	Mr F. Gucciardo	Theo Magazis & Associates
For Long Thanh Tran	Mr G. Mullaly	Victoria Legal Aid
For Hong Bui	Mr J. Saunders	Valos Black & Associates
For Hoang Tran	Mr M. Rochford	Brendan Wilkinson

HIS HONOUR:  (ex tempore)

1. Application has been made on behalf of the Herald and Weekly Times Pty Ltd and the Nine Network Australia Pty Ltd and by The Age newspaper for access to exhibits that have been tendered in the course of the Salt Nightclub trial.  The first of those exhibits is video footage of a fight which occurred inside the Salt Nightclub on the morning of 8 July 2002 and the second is video footage taken in Daly Street of events that occurred outside the Salt Nightclub between approximately 3.00 a.m. and 3.30 on the morning of 8 July 2002.

1. I have heard submissions from the legal representatives of the Applicants.  The application is opposed by the Crown, by counsel for all accused and by the legal representative of Tuan Tran, who was not an accused in the present trial, but who is facing one count of affray arising out of the events of the morning of 8 July 2002.  Tuan Tran was the subject of considerable evidence during the course of the trial.

1. Mr Quill who appeared on behalf of the Herald and Weekly Times and the Nine Network submitted that access to these exhibits was desirable to assist his clients in the publishing of a fair and accurate report of the proceedings.  In a written submission Mr Quill drew attention to the various statements of principle concerning the need for this Court to ensure that it is the subject of open justice and that the public is provided with the opportunity to understand what took place in the course of the proceedings.  Mr Quill in particular placed reliance upon the observations of the Master of the Roll Sir John Donaldson in Attorney-General v Guardian Newspaper Limited (No2)[1] who in referring to the importance of open justice described the media as “the eyes and ears” of the general public.  Mr Quill emphasised that the Courts have an obligation to administer justice in an open manner and to facilitate public understanding of the judicia process. 

   [1][1990] 1 AC 109.

1. In the course of the submissions in opposition to the application the principal argument advanced was that the release of these exhibits and their publication following upon the verdict by the jury has the potential to interfere with the administration of justice in relation to the present accused and the defendant Tuan Tran who is awaiting the hearing of his proceedings.

1. Some arguments focussed upon the potential way in which the exhibits sought might be misused by the media.  This is a distraction from the primary question whether there are legitimate considerations which militate against the release of the exhibits at this time, notwithstanding the importance of open justice and the facilitation of fair and accurate reporting of proceedings.  I do not think it is material for this Court to enquire as to how the media might utilise exhibits which are released to it at the conclusion of a trial.  As Mr Quill has rightly submitted, this Court must proceed on the assumption, unless there is compelling evidence to the contrary,  that there will be fair and accurate reporting of any material which is released by the Court to the media.  If there is not, there are appropriate remedies available to the Court and the parties.

1. I have come to the conclusion that it is presently necessary for me to refuse the application of the media because there are in existence legal proceedings which may be affected in the event that these exhibits are released.

1. The video footage of events inside the Salt Nightclub and outside the Salt Nightclub were the subject of extensive attention during the course of the trial.  The footage concerns events which may not only involve a number of the accused in the present trial, but also the defendant Tuan Tran.  It is presently unclear what course the proceedings involving Tuan Tran will take, but it is not a remote possibility that there will be proceedings which will focus on the events inside and outside the Salt Nightclub, the subject of the videos to which the media seek access.  For that reason alone I consider the proper course is to refuse the application of the media at least until such time as the verdicts of the present accused are known and the course that is to be followed in relation to Tuan Tran is clear.  Until then, it is impossible to know to what extent the administration of justice is likely to be impeded if these exhibits were released.

1. It has been rightly said by a number of defence counsel that the nature and quality of the two videos are unlikely to enhance any public understanding of the issues in the present trial.  The quality of these exhibits will not assist the media in the presentation of any information which will enlighten readers or viewers as to the events which occurred on 8 July 2002 inside or outside the nightclub.  Although that is not a material consideration in my reasoning in refusing the media’s application, it is unlikely that the media will be handicapped in its representation of the proceedings by not having access to such material at the present time. 

1. The media may make further application for access to such material.  After the verdict and the course that is to be followed in relation to Tuan Tran has become clear, the media may, if they see fit, seek to revisit the present application.