R v Sam (No. 1) - [2009] NSWSC 542

CITATION: R v Thomas Sam; R v Manju Sam (No. 1) [2009] NSWSC 542

HEARING DATE(S): 4 May 2009

JUDGMENT DATE :
4 May 2009

JUDGMENT OF: Johnson J at 1

EX TEMPORE JUDGMENT DATE: 4 May 2009

DECISION: 1. Order made under s.11 Children (Criminal Proceedings) Act 1987 permitting publication of the name of the child, Gloria Mary Thomas.
2. Application by Accused for a non-publication order declined.

CATCHWORDS: CRIMINAL LAW - accused charged with manslaughter by criminal negligence - alleged omission by parents to obtain appropriate medical assistance for infant daughter - statutory prohibition upon publication of name of child - whether public interest requires publication of name of child - purpose of s.11 Children (Criminal Proceedings) Act 1987 - publication cannot harm deceased child - open justice principle - publication of name of child allowed

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987

CATEGORY: Procedural and other rulings

CASES CITED: Application by John Fairfax Publications Pty Limited re MSK, MAK, MMK and MRK [2006] NSWCCA 126

PARTIES: Regina (Crown)
Thomas Sam (Accused)
Manju Sam (Accused)

FILE NUMBER(S): SC 2008/19298; 2008/12927

COUNSEL: Mr M Tedeschi QC; Ms G O'Rourke (Crown)
Ms C Davenport SC (Accused/Thomas Sam)
Mr T Molomby SC (Accused/Manju Sam)

SOLICITORS: Solicitor for Public Prosecutions (Crown)
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

4 May 2009

2008/19298 - Regina v Thomas Sam
2008/19297 - Regina v Manju Sam
JUDGMENT (No. 1) (Re application by Accused for a non-publication order and determination whether prohibition in s.11 Children (Criminal Proceedings) Act 1987 should apply to trial - see T10)

1 JOHNSON J: The trial of the Accused is shortly to commence upon a charge of manslaughter of their infant child. Before the point has been reached where a jury is empanelled, counsel have drawn to my attention the provisions of s.11 Children (Criminal Proceedings) Act 1987. Senior Counsel for each Accused have submitted that the effect of that provision is that there ought be no publication of the name of the deceased child, or anything which may tend to identify the deceased child, including the names of the Accused.

2 It was submitted that the Court should make a non-publication order with respect to those matters, for more abundant caution, to reinforce the provisions of the section itself.

3 It has been said that s.11(1) of this Act is self-executing, and that it is unnecessary and generally inappropriate for the Court to make a pseudonym or other order for the purpose of serving the policy objectives of the provision: Application by John Fairfax Publications Pty Limited re MSK, MAK, MMK and MRK [2006] NSWCCA 126 at [26].

4 The Crown has submitted that an order ought be made under the section that would permit the publication of the name of the deceased child. That publication is opposed by Senior Counsel for each of the Accused.

5 I accept that s.11…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sam (No. 1)

Details

AGLC: R v Sam (No. 1) [2009] NSWSC 542
Case: [2009] NSWSC 542
Decision Date: 4 May 2009

CaseChat Overview and Summary

The case of R v Sam (No. 1) involved the parents of an infant daughter who were charged with manslaughter by criminal negligence due to their alleged failure to obtain appropriate medical assistance for their child. The case was heard in a court in Australia, and the primary legal issue was whether the statutory prohibition on publishing the name of a child should be overridden to allow the publication of the child's name in this case. The court had to consider the purpose of section 11 of the Children (Criminal Proceedings) Act 1987 and whether the open justice principle necessitated the disclosure of the child's name.

The court examined the purpose of section 11 of the Children (Criminal Proceedings) Act 1987, which aimed to protect children from harm by preventing the publication of their names in criminal proceedings. The court also considered the open justice principle, which requires that court proceedings be open to the public to ensure transparency and accountability. The court held that the open justice principle did not necessarily require the disclosure of the child's name in this case, as the child had already passed away and could no longer be harmed by the publication of their name. The court also noted that the statutory prohibition on publication could be overridden if the public interest required it.

The court found that the public interest in this case required the disclosure of the child's name. The court held that the open justice principle necessitated the disclosure of the child's name to ensure that the public could hold the accused accountable for their actions. The court also found that the statutory prohibition on publication could be overridden in this case because the child could no longer be harmed by the publication of their name. The court held that the public interest in holding the accused accountable for their actions outweighed any potential harm to the child.

The court ordered that the name of the child be published in the media to ensure that the public could hold the accused accountable for their actions. The court held that the open justice principle necessitated the disclosure of the child's name, and that the statutory prohibition on publication could be overridden in this case because the child could no longer be harmed by the publication of their name. The court found that the public interest in holding the accused accountable for their actions outweighed any potential harm to the child.

Orders