R v. Metius

[2007] QSC 359

[2007] QSC 359

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

ATKINSON J

THE QUEEN

v.

CANDANEACE LEA METIUS

BRISBANE

..DATE 27/11/2007

ORDER

HER HONOUR:  An application has been made to me by a number of

members of the media who are reporting on this trial to be

granted access to a digital recording taken at the Mater

Hospital which shows the defendant smothering her eight month

old baby together with still photos of the same.  They seek

permission to copy the exhibits with the intention of putting

selected excerpts to air on the television and in the

newspaper when a verdict is reached.

They submit that appropriate editorial measures would be taken

to ensure the material to air complies with acceptable

broadcast standards and public sensitivities and expectations.

They point out that there is considerable public interest in

this case.

Fundamental to our rule of law is that criminal trials be

conducted in public and the material is seen in public.  That

is a fundamental principle which should be adhered to in the

spirit as well as the letter of the law and ordinarily, in my

view, unless there is a good reason for it not to be the case,

exhibits in criminal trials ought be allowed to be copied so

that the press can fairly report on the criminal trial.

The release of this material, however, has caused me some

difficulty.  It is opposed both by the Director of Public

Prosecutions, who, herself, appears as counsel in this case,

and by defence counsel, Mr Chowdhury.  Mrs Clare also has

informed me that the baby's grandmother representing his

interests has opposed the release of the material.

The prosecution has informed me that, in terms of their

disclosure obligations under the Criminal Code, they have at

all times regarded this evidence as falling within the

definition of sensitive evidence in section 590AF of the Criminal Code, in particular, that it is, for the purposes of that section, obscene, as that term is defined in both the Australian Concise Oxford Dictionary, that is, "highly offensive or repugnant, or of a publication tending to deprave or corrupt" - and also its definition in The Macquarie Dictionary, which is "abominable, disgusting or repulsive."

The definition of obscene found in the Butterworth's Concise

Australian Legal Dictionary Second Edition 1998 includes:

"Unduly emphasising matters of sex, crimes of violence,
   gross cruelty or horror so as to offend against
   commonsense or decency."

The Oxford English Dictionary defines obscene as "offensively

or grossly indecent", and a legal definition being:

"Tendency to deprave and corrupt those who are likely to
   read, see or hear the contents."

A second meaning of obscene is:

"Offending against moral principles, repugnant,
   repulsive, foul or loathsome."

I accept that the material in question does fall within that

definition.  It is a very graphic depiction of a terrible

crime of violence.  Its very disturbing nature was graphically

demonstrated in court when many members of the jury wept

almost throughout the playing of that evidence in court.

I personally cannot recall a more disturbing piece of evidence

being played in a courtroom.  The evidence does depict

something abominable, violent, disgusting and repulsive.

It is, however, within my discretion to allow it to be

released to the members of the media.  I have taken into

account the fact that it is sensitive evidence.  I also take

into account that it will be extremely painful to the family

of the dead baby, highly disrespectful to the memory of the

dead baby and also, unfortunately, that despite whatever

precautions may be taken by the well-intentioned members of

the media who have asked for its release to them, the capacity

for misuse of such horrible footage on the Internet cannot be

ignored by me.

Film material containing the actual killing of a baby would

never be allowed to be shown commercially and nevertheless,

there are people who find that kind of depraved material

attractive and once the footage was out of the control of the

Court, and officers of the Court, and the Queensland Police

Service, the court would no longer exercise any control over

the potential for the misuse of that material.  I accept that

none of the persons from the media who appeared before me

would seek to misuse or assist in its misuse, but

nevertheless, once the material had left the court, that

potential would have to be faced.

In view of all those factors, I, on this occasion, do not

intend to give permission to copy Exhibits 8, 9, 12 and 14 in

this trial to members of the press or the media, and I further

order pursuant to Rule 56(2) of the Criminal Practice Rules

that those exhibits not be inspected unless allowed by a

further order of the Court, and I order that they be sealed

and not opened once the jury has delivered their verdict

unless allowed by a further order of the Court.

That's my ruling.  I should, however, say that I'm not in the

slightest bit critical of the application being made.  It was

entirely appropriate and made in an entirely appropriate way,

but that is my ruling.

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