R v Thomas Sam; R v Manju Sam (No. 16)

[2009] NSWSC 544

Reported Decision: 196 A Crim R 138
[2010] ALMD 5650

New South Wales

Supreme Court

CITATION:	R v Thomas Sam; R v Manju Sam (No. 16) [2009] NSWSC 544
HEARING DATE(S):	5 June 2009
JUDGMENT DATE :	9 June 2009
JUDGMENT OF:	Johnson J at 1
EX TEMPORE JUDGMENT DATE:	9 June 2009
DECISION:	1. Application granted for photographs 1 to 6 in Exhibit B to be released to media interests for publication or broadcast as part of any report of proceedings. 2. Application declined with respect to photographs 7 to 17 in Exhibit B.
CATCHWORDS:	CRIMINAL LAW - manslaughter by criminal negligence - omission by parents to obtain appropriate medical assistance for infant daughter - photographs of child tendered as exhibit during trial - parents convicted of manslaughter - application after verdicts by media for release of photographs in exhibit for publication or broadcast - relevant discretionary considerations - open justice principle - exhibit tendered during trial - protection of dignity of deceased victim - publication permitted of certain photographs only in exhibit
LEGISLATION CITED:	Criminal Procedure Act 1986 Supreme Court Practice Note SC Gen 2 "Access to Court Files" Victims Rights Act 1996 Children (Criminal Proceedings) Act 1987
CATEGORY:	Procedural and other rulings
CASES CITED:	R v Sam (No. 5) [2009] NSWSC 543 Burrell v R [2008] NSWCCA 276 R v Xu (No. 1) (2005) 152 A Crim R 17 R v Benbrika (No. 26) [2008] VSC 452 John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512 Seven Network Ltd v News Ltd (No. 9) (2005) 148 FCR 1 HIH Insurance Limited (In Liquidation) v General Re Insurance Australia Limited [2006] NSWSC 128 John Fairfax Publications Pty Limited v District Court of New South Wales(2004) 61 NSWLR 344 O'Shane v Burwood Local Court (2007) 178 A Crim R 392 Attorney General v Guardian Newspapers (No. 2) (1990) 1 AC 109 R v Strawhorn (No. 2) [2006] VSC 433 Ludwig v Public Trustee (2006) 170 A Crim R 460 R v Sam (No. 1) [2009] NSWSC 542 Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435
PARTIES:	Regina (Crown) Thomas Sam (Offender) Manju Sam (Offender)
FILE NUMBER(S):	SC 2008/19298; 2008/12927
COUNSEL:	Mr M Tedeschi QC; Ms G O'Rourke (Crown) Ms C Davenport SC (Offender/Thomas Sam) Mr T Molomby SC (Offender/Manju Sam) Ms S Chrysanthou (Nationwide News Pty Limited, the Seven Network Limited and the Nine Network Limited)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Karp O'Neill (Offender/Thomas Sam) Legal Aid NSW (Offender/Manju Sam)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

9 June 2009

2008/00019298 - Regina v Thomas Sam
2008/00019297 - Regina v Manju Sam

JUDGMENT (No. 16) (On further application by media interests to publish or broadcast photographs within Exhibit B)

1 JOHNSON J: Following the return of verdicts by the jury on 5 June 2009, application was made by Nationwide News Pty Limited, the Seven Network Limited and the Nine Network Limited for the release of certain photographs of Gloria Thomas, which were exhibits in the trial, so that those photographs may be published or broadcast in conjunction with the reporting of the trial by the media.

The Media Application During the Trial

2 The background to the present application may be found in my judgment R v Sam (No. 5) [2009] NSWSC 543, a judgment delivered on 6 May 2009. For reasons appearing in that judgment, I declined the media application which was confined at that time to photographs 1 to 6 and 15 in Exhibit B. In paragraph 10 of that judgment, I said:

“The photographs in Exhibit B, which are the subject of this application, are a selection only of the photographs of Gloria which are in evidence. Photographs 1 - 6 were taken between 18 July 2001 and 14 October 2001 and depict an apparently happy and healthy baby. Photograph 15 was taken on 13 February 2002 and depicts visible signs of the condition affecting the child, albeit with the child sitting on a chair and with the condition not being as graphic as it is in the remaining photographs within Exhibit B. The media do not seek to publish other more graphic photographs within Exhibit B."

3 At paragraph 29 of that judgment, I observed that it remained open to the media interests to make application at a later time after verdict with respect to publication of the photographs. I indicated, however, that in the circumstances of the case and in the exercise of discretion, for the reasons set out in my judgment, I was not prepared at that time to release the subject paragraphs in Exhibit B to the media so as to permit their publication or broadcast.

Submissions on the Present Application

4 In the present application, the media interests seek release of all 17 photographs in Exhibit B so that those photographs may be published or broadcast.

5 Ms Chrysanthou, counsel for the media interests, refers to s.314 Criminal Procedure Act 1986 and Supreme Court Practice Note SC Gen 2 entitled "Access to Court Files" in support of the application.

6 Counsel handed up a letter dated 5 June 2009 from Ms Gina McWilliams, legal counsel for Nationwide News Pty Limited, in support of the application. In addition to submissions advanced in support of the application, that letter stated:

"The Media Applicants remain of the view that publication of the photographs is vital to the public's understanding of case: of baby Gloria's condition, the decline in her health, the arguments made during the trial and the verdict reached by the jury. However, the Media Applicants note that should any of the tendered photographs showing baby Gloria's genitals be selected for publication, steps will be taken to either pixillate or obscure her genitals as appropriate.”

7 In support of the application, Ms Chrysanthou emphasised the open justice principle, the fact that the trial was over and that the impact of publication of the photographs on the jury (an issue relied upon by me for refusing the application during the trial) had now passed with the verdicts delivered by the jury. Reliance was placed on the decision of the Court of Criminal Appeal in Burrell v R [2008] NSWCCA 276 at [17] to [19] in support of the proposition that the relevant test is whether an order declining the media application is necessary in the administration of justice. Counsel submitted that no necessity had been demonstrated for declining to release all the photographs (or, at least, those in photographs 1 to 6 and 15) and that an order for release ought be made.

8 On instructions from the Deputy Director of Public Prosecutions, the Crown did not oppose the release of photographs 1 to 6 but did oppose the release of photographs 7 to 17 in Exhibit B. The Crown submitted that it was not appropriate that photographs of baby Gloria, in her afflicted state, be released for further publication or broadcast.

9 Ms Davenport SC, for Mr Sam, opposed the application in its entirety. She sought to distinguish Burrell v R and pointed to the potential negative consequences of publication which may flow to Gloria's three-year old sibling. Mr Molomby SC, for Mrs Sam, opposed the application and submitted, amongst other things, that negative consequences may flow from the type of widespread electronic dissemination of the photographs which might be anticipated in this case.

10 I raised with counsel the relevance of the Victims Rights Act 1996 to this application. The Crown and senior counsel for each Offender accepted that the Act may have some application to this case. I will return to this issue.

Determination of Application

11 A number of principles emerge from the authorities.

12 As the trial judge, I have a discretion whether to release the photographic exhibits for further publication in this way by the media: R v Xu (No. 1) (2005) 152 A Crim R 17 at 20 [21]; R v Benbrika (No. 26) [2008] VSC 452 at [4]; R v Sam (No. 5) at [6].

13 As Spigelman CJ observed in John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512 at 521 [29]:

“Neither the [media] nor the public at large, have a right of access to court documents. The ‘principle of open justice’ is a principle, it is not a freestanding right. It does not create some form of freedom of information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access. However, it remains a principle and not a right."

See also Seven Network Ltd v News Ltd (No. 9) (2005) 148 FCR 1 at 7-9 [21]-[28].

14 Practice Notes are important in influencing the practice and procedure of the Court, but they are not rules of court. Their principal function is to provide guidance to the profession as to how the broad discretion conferred on the Court in relation to access to court files is exercised: HIH Insurance Limited (In Liquidation) v General Re Insurance Australia Limited [2006] NSWSC 128 at [10].

15 The entitlement of the media to report on court proceedings is a corollary of the right of access to the Court by members of the public, and nothing should be done to discourage a fair and accurate reporting of proceedings: John Fairfax Publications Pty Limited v District Court of New South Wales(2004) 61 NSWLR 344 at 353 [20]; O'Shane v Burwood Local Court (2007) 178 A Crim R 392 at 397-8 [19]-[21].

16 It has been said that the media are “the eyes and ears of the general public”, not all of who can attend the Court proceedings: Attorney General v Guardian Newspapers (No. 2) (1990) 1 AC 109 at 183; R v Strawhorn (No. 2) [2006] VSC 433 [31].

17 The Victims Rights Act 1996, in my view, has some bearing on the application. Section 5 of that Act defines a "victim of crime" as including a person who suffers harm as a direct result of an act committed in the course of a criminal offence. Section 5(3) provides that, if “the person” dies as a result of the act concerned, the definition of “victim of crime” extends to the person’s immediate family. In my view, s.5(3) makes clear that a “victim of crime” includes a deceased person.

18 Section 6 Victims Rights Act 1996 provides for a Charter of Rights for Victims of Crime. Section 6.1, entitled “Courtesy, Compassion and Respect” provides as follows:

“A victim should be treated with courtesy, compassion, cultural sensitivity and respect for the victim’s rights and dignity.”

19 Section 7 of the Act provides that the Charter of Victims Rights is, as far as practicable and appropriate, to govern the treatment of victims in the administration of affairs of the State. Section 7(2) provides that any agency or person exercising official functions in the administration of the affairs of the State (other than judicial functions) must, to the extent that it is relevant and practicable to do so, have regard to the Charter of Victims Rights in addition to any other relevant matter.

20 The term "administration of the affairs of the State" is defined in s.7(3) to include “the administration of justice, the provision of police services and the administration of any department of the Government”.

21 Section 8 of the Act provides, amongst other things, that the Charter of Victims Rights in s.6 cannot give rise to any civil cause of action and does not operate to create in any person any legal rights not in existence before the enactment of the legislation.

22 There is little authority on the Victims Rights Act 1996. In Ludwig v Public Trustee (2006) 170 A Crim R 460 at 498-499 [237]-[244], Campbell J (as his Honour then was) considered arguments arising, in the context of civil litigation, with respect to ss.6, 7 and 8 Victims Rights Act 1996. Given the nature of that litigation, and the terms of s.8, it was not necessary for his Honour to resolve the arguments advanced in that case.

23 Because of s.7(2) of the Act, which excludes “judicial functions” from the exercise of “official functions in the administration of the affairs of the State”, it might be said that the Act has no application to a decision by a Court. It might also be said that the thrust of this Act concerns living victims of crime, and not matters which may impact upon the rights and dignity of a deceased victim. I accept that the Act applies most commonly to living victims. The terms of the Act make clear that the Charter of Victims Rights applies to a range of circumstances where a victim of crime comes into contact with the criminal justice system at the investigatory, trial and sentencing stages.

24 That said, I am satisfied that s.6.1 is relevant to the present circumstances, where application is made by the media to publish or broadcast photographs of a deceased child victim of crime, including photographs of that child whilst alive, but in an afflicted state as a result of a condition from which the child was suffering at the time. Those matters it seems to me, are capable of bearing upon the dignity of a victim of crime even after the victim is deceased.

25 I apprehend that considerations of that type affected the position of the Crown in submissions made to the Court, given that the Director of Public Prosecutions is a person exercising official functions in the administration of the affairs of the State, including the “administration of justice” within s.7.(3) of the Act.

26 Although s.6 Victims Rights Act 1996 is to be taken into account primarily by the Director of Public Prosecutions in the exercise of his functions, it is relevant also to the task of the Court on the present application. I apprehend that considerations of this type may arise when application is made by the media in other trials for access to photographs which were exhibits in the trial, for the purpose of further publication and broadcast, where the photographs depict the victim of crime in demeaning and undignified circumstances. In my view, the operation of a contemporary criminal justice system in this State accommodates considerations of this type being brought to bear on an application such as this.

27 I have mentioned (at [9] above) submissions made by senior counsel for each Offender, which referred to Gloria’s three-year old sibling. At the time of argument giving rise to my judgments, R v Sam (No. 1) [2009] NSWSC 542 and R v Sam (No. 5), no reference was made by counsel to a younger sibling of Gloria. It is apparent that the younger sibling of Gloria was not born until years after Gloria’s death in May 2002. It may be that the short answer as to why earlier submissions did not refer to this three-year old sibling is that s.11(1)(d) Children (Criminal Proceedings) Act 1987 extends to a person who is a brother or sister of the victim of the offence “where that person and the victim were both children when the offence was committed”. In this case, the three-year old sibling was not born at the time of the offence of manslaughter in May 2002. (I note that, if a senior available next of kin, who could not include either of the present Offenders (s.11(4F)), is to give consent to publication under s.11(4)(d) of that Act, that next of kin must take into account the impact of publication or broadcasting on a sibling (s.11(4G)).

28 It seems to me that the potential negative impact of publicity, including reproduction of any of the photographs in Exhibit B, upon the three-year old sibling of Gloria at some later time, is not something that bears, in any significant way, upon the present application. The two Offenders have been convicted of Gloria's manslaughter. I do not think that the negative impact that may occur in years to come from the publication of any photographs, combined with any story with respect to the circumstances of this trial, bears substantially on the exercise of discretion.

29 I determined at the outset of the trial that s.11 Children (Criminal Proceedings) Act 1987 did not have application to this case: R v Sam (No. 1). In reaching that view, I had particular regard to the open justice principle in assessing what the public interest required in this case. I adverted to the open justice principle again in my judgment during the course of the trial: R v Sam (No. 5) at [14]-[15].

30 The trial having now been completed, the present question is what decision ought be made, in the light of the arguments which have been advanced, with respect to the application for all 17 photographs in Exhibit B to be made available for publication or broadcast?

31 I am satisfied that the photographs 7 to 17 in Exhibit B ought not be released. They depict Gloria, in her afflicted state, at times between February and May 2002. In my view, it is necessary that they not be released, in the sense that non-release is reasonably required in the interests of the administration of criminal justice: Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 at 452 [51]; O’Shane v Burwood Local Court at 401 [33]. Gloria is entitled to dignity and respect, even in death. Accordingly, those photographs ought not be released. I do not regard this decision as being a significant erosion upon the open justice principle.

32 In my view, photographs 1 to 6 are in a different category. The Crown did not oppose the release of those photographs. They depict (a fully clothed) Gloria as an apparently happy and healthy child, in the early stages of her life, before she was afflicted by eczema in the way revealed by the evidence.

33 The media are entitled to make a fair and accurate report of proceedings. At times, a fair and accurate report of proceedings will be assisted by photographs, in particular photographs which were in evidence in the trial. I do not think that the ability of the media to publish or broadcast photographs 1 to 6 will undermine the dignity and respect to which Gloria remains entitled.

Conclusion

34 For these reasons, I am persuaded that the application by the media interests ought be allowed with respect to photographs 1 to 6 in Exhibit B, but declined with respect to photographs 7 to 17 in Exhibit B.

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