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 creates a statutory scheme which extends, on its face, to a deceased child victim. So much is apparent from s.11(1A)(b), s.11(4)(d), s.11(4F) of the Act. The Act itself creates a scheme whereby publication or broadcasting of matters which would identify the child may be permitted if one of the circumstances in s.11(4) of the Act is demonstrated.

6 I note that s.11(4)(d) permits publication or broadcasting of the name of the deceased child with the consent of a senior available next of kin of the child in certain circumstances. Section 11(4F) provides that a senior available next of kin for this purpose, does not include a person charged with an offence with respect to the child. Indeed, s.11(4F) provides that a senior available next of kin who is charged with the offence cannot give consent or object to the publication or broadcasting of the name of the deceased child. Despite the terms of that subsection, I have of course heard counsel for each Accused on the application which, amongst other things, involves the proper construction of the provision.

7 The Crown points to s.11(4)(b)(i), which permits publication or broadcasting of the name of the person in the case of a person who is a child under the age of 16 years at the time of publication or broadcasting, with the consent of the Court concerned. For present purposes, that Court is the trial Court and it is for me to consider whether such consent ought be granted.

8 Section 11(4A) provides that "the consent of the Court referred to in subsection 4(b)(i) shall not be given except with the concurrence of the child (or if the child is incapable of giving concurrence) where the Court is of the opinion that the public interest so requires". Thus, the question comes down to whether the publication of the name of the deceased victim in this case is something which, in the opinion of the Court, the public interest requires.

9 The Crown submits that the concept of public interest in this section ought be considered against the background of the statutory purpose of the provision, which is essentially to protect against publication the names of child defendants, victims and witnesses.

10 The Crown points to the open justice principle, bearing in mind that this is a trial by jury on indictment in this Court, which ordinarily proceeds in open Court with no restriction on publication, except insofar as it is necessary in the interests of the administration of justice. The Crown submits there is no factor in this case which would suggest that publication ought not occur, and that the public interest in open justice is such that it ought be permitted.

11 It is submitted on behalf of the Accused that s.11 creates a presumption against publication and that, unless the Court is positively satisfied that it is in the public interest that publication occur, then the section ought operate to prevent it. It is pointed out that the position can be re-visited later in the trial or, if there is conviction, after conviction. It is submitted for the Accused that, although there is no child victim alive who may be directly affected by the publication or broadcast of the trial, the existence of the section within the statutory scheme bearing upon this trial is such that the provision, and its effect, ought not be displaced lightly.

12 I have had regard to the submissions which have been advanced by the parties. I accept that the primary purpose of s.11 is to protect the interests of child defendants, victims or witnesses from the impact of any publication which may occur. Of course, the section itself, as I have said, extends to deceased child victims, and thus it cannot be said that that aspect is external to the section.

13 It is necessary to consider the circumstances of the particular case to determine whether publication ought be permitted. That issue can be approached upon the basis that the deceased child clearly is not in a position to be affected by any broadcast or publication and the Accused, being the parents of the deceased child, have no right to object to the publication, at least to the extent that that is expressly provided for in s.11(4F) of the Act.

14 The Courts have made clear that the concept of “public interest” is a broad one. Ordinarily, the trial of persons for alleged serious crimes take place in open Court, before a jury, with no restriction upon the publication of the evidence. Section 11, of course, restricts that, but it ought be borne in mind that s.11 itself is a type of exception to the open justice principle. Where the child is deceased, it seems to me that the Court would look at the circumstances of the case to assess what the public interest requires.

15 The public interest ordinarily requires a trial in open court, with the open justice principle applicable, and with what is said in the trial, subject to any other specific application being made, being available for publication or broadcast.

16 It is clear that the circumstances of this case will involve evidence which will be challenging, in a number of respects, concerning the state of health of the deceased child, at times leading up to her death. It seems to me that the general public interest in open justice, in a case such as this, is a powerful factor and in my view ought lead to the conclusion that the Court should consent to publication or broadcasting of the name of the child. I am satisfied that, in the circumstances of this case, the public interest so requires.

17 Accordingly, I so direct. The effect of that is that the prohibition contained in s.11 Children (Criminal Proceedings) Act 1987 does not apply to this trial.

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