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R v Sam (No. 5)

R v Sam (No. 5)

Case [2009] NSWSC 543 6 May 2009

Jurisdiction

Criminal Liability

Media & Entertainment Law

Appeal

Admissibility of Evidence

Criminal Law

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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

LEGISLATION CITED: Criminal Procedure Act 1986
Supreme Court Practice Note SC Gen 2 "Access to Court Files"
Children (Criminal Proceedings) Act 1987

CATEGORY: Procedural and other rulings

CASES CITED: 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
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

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)
Ms S Chrysanthou (Nationwide News Pty Limited, Fairfax Media Limited and the Nine Network Limited)

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

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,…

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. 5)

Details

AGLC: R v Sam (No. 5) [2009] NSWSC 543
Case: [2009] NSWSC 543
Decision Date: 6 May 2009

CaseChat Overview and Summary

The appellants, parents of a deceased child, were on trial for manslaughter by criminal negligence. The prosecution alleged that the parents failed to obtain appropriate medical assistance for their infant daughter, leading to her death. During the trial, the prosecution sought to tender photographs of the child as an exhibit. Concurrently, media organisations applied to the court for permission to release these photographs for publication or broadcast during the trial. The court had to decide whether the media's application should be granted.

The central legal issue was whether the court should exercise its discretion to permit the release of the photographs, considering the potential impact on the jury. The court weighed the need to ensure a fair trial against the public's right to access information about the proceedings. It considered the risk that the publication or broadcast of the photographs might distract the jury, either directly by influencing their deliberations or indirectly by affecting public opinion and thereby impacting the jurors. The court also assessed the relevance of the photographs to the case and the potential for any prejudicial effect they might have on the trial's fairness.

After careful deliberation, the court declined the media's application to release the photographs during the trial. It found that the risk of distraction to the jury was too significant, potentially undermining the integrity of the trial process. The court emphasised the importance of protecting the jurors from external influences that could prejudice their ability to deliver a verdict based solely on the evidence presented in court. It also noted the sensitivity of the subject matter and the need to balance the competing interests of the public's right to information and the need for a fair trial.

No specific final orders were mentioned in the text. However, it is likely that the court issued an order prohibiting the media from releasing the photographs during the trial to safeguard the proceedings' fairness.

Orders