R v Xu (No 1)

[2005] NSWSC 73

Reported Decision: 152 A Crim R 17

New South Wales

Supreme Court

CITATION:	R v Shan Shan Xu [No 1] [2005] NSWSC 73
HEARING DATE(S):	14/02/05 15/02/05
JUDGMENT DATE :	15 February 2005
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Kirby J
DECISION:	Application refused.

CATCHWORDS:	Criminal Law - application by ABC for release of video tape exhibit - video shown in open court - potential harm to accused - interests of open justice - interests of person with mental illness - whether material wholly exceptional such that should not be released.
CASES CITED:	R v LMW [1999] NSWSC 1111 David Syme & Co Ltd v General Motors Holden Ltd [1984] 2 NSWLR 294 John Fairfax Publications v District Court of New South Wales [2004] NSWCA 324 John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 R v RIK [2004] NSWSC 75
PARTIES:	Regina Shan Shan Xu
FILE NUMBER(S):	SC 2004/70015
COUNSEL:	P Miller (Crown) Ms D Yehia (Acc) A T S Dawson (ABC)
SOLICITORS:	Ms M Sleeton (DPP) Ms J Harris (LAC)

LOWER COURT JURISDICTION:

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

DAVID KIRBY J

Tuesday 15 February 2005

2004/70015 REGINA v Shan Shan XU

JUDGMENT [No 1] - On application of ABC for access to Exhibit A, being a CCTV video footage.

1 KIRBY J: Application has been made on behalf of the ABC for access to an exhibit in the trial which is taking place before me concerning the accused Shan Shan Xu. Ms Xu is charged with the murder of her son, Stephen Xu, on 31 March 2003.

2 The matter has proceeded before me, on the election of the accused, and with the consent of the Crown, as a judge sitting alone. It began with the Crown tendering material which was marked as Exhibit A and which included a video which is the subject of this application.

3 The Crown case is that Ms Xu took her son, who was then aged four and a half years, by train from Central to Meadowbank. She alighted and spent the afternoon with her son in a small park which is adjacent to a wharf in that location.

4 Being a wharf controlled by the transport authority, it is fitted with closed circuit television. Repeatedly throughout the afternoon there are images of Ms Xu and her deceased son which appear in that television footage.

5 At 6.41 pm, after darkness had fallen, the footage shows images of Ms Xu making her way with Stephen down the ramp which leads to the wharf. She is holding his hand. As they reached the end she paused. She then gathered him in her arms and again she paused. After some time, the footage shows Ms Xu and her son disappearing from the end of the wharf, such that one would infer that she then jumped into the Parramatta River below.

6 There is evidence within the various statements from exhibit A of what happened thereafter. She was seen by various people, including fishermen and fisherwomen, who were positioned on the nearby pylons of the railway bridge, which was to the west. She was also seen by people who were using the river for rowing and boating. Gradually she either swam or drifted to the west in the vicinity of the next peninsular which is Homebush Bay.

7 At roughly 7.55 pm, that is some considerable time after her entry into the water, she was noticed by passengers on a ferry which was operating along the Parramatta River. She was heard to cry for help. The boat's Master was persuaded to turn the boat around and the boat then went to her rescue. As they endeavoured to assist her and pull her from the water it became obvious that she was clutching her child. She was then taken on board, as was the child. Efforts were made to revive the child. An ambulance was summoned and the boat continued to the nearby wharf. Ambulance officers had by that time arrived. Attempts to revive the child were unsuccessful.

8 The Crown case, in the TV footage, included not only the truly horrific final moments of Stephen as the pair walk towards the end of the wharf, but several other poignant scenes, where mother and child played during the course of the afternoon in a section of the wharf set aside for passengers. The child can be seen jumping from one seat to another, like any normal four and a half year old.

9 The matter has proceeded after a plea of not guilty by the accused, it being indicated at the time of entry of that plea that she raised the defence of mental illness.

10 An extensive psychiatric history has accompanied the material which has been tendered. It includes the history in the months before these tragic events. It also includes her subsequent progress. It incorporates the opinions of doctors who have been qualified by the Crown and by the accused to express a view as to the defence that she raises. In each case those doctors support that defence, that is, that at the time of these events she was suffering from a major depressive illness with psychotic features such that she did not know the nature and quality of her act or if she did, she had no appreciation of the fact that it was wrong.

11 The trial has reached the point where the evidence is now complete. I have yet to hear submissions from counsel. I expect that counsel for the Crown and for the accused with one voice, will submit that I should find in this case that the accused has made out, as a matter of probability, the defence of mental illness. However, that lies in the future. I have yet, for my part, to read all the material and sift through the evidence and form a final view in respect of that matter.

12 However, it can be said, as a prima facie position, that there is a strong basis for finding, on the evidence as it appears to me at this time, that there is such a defence.

13 This matter, when it began, attracted a deal of media interest. There was at least half a dozen, if not a dozen media representatives present. A number of photographers were positioned outside the Court. That interest to some extent has continued. Having regard to matters which have currency in the press at the moment and the interest and legitimate concern of the public concerning matters of mental health, that is perhaps not surprising.

14 However, the particular issue that arises concerns the release of some of the images from the closed circuit television footage.

15 Mr Dawson of Counsel, who very ably represented the ABC, and who has provided helpful written submissions, has indicated that his client has no wish to screen the final moments of this woman's journey with her young son. He has made that submission against the background of certain evidence which was given at the end of yesterday from Dr Nielssen, which included the following comment made by Dr Nielssen, having heard a preliminary debate between counsel for the accused and comments by myself whilst he was waiting to give evidence. Dr Nielssen, forensic psychiatrist of some considerable experience, and no stranger to these courts as an expert witness, said this at page 34:

“Your Honour, if it assists, I wonder if I can make a comment on that last application from a psychiatric view. There is some research that shows depictions of suicide attempts in the media leads to imitators and there has been some studies that have shown a rise in suicides after very widely watched stories on suicide. I think it is taught to journalists to be very careful in reporting. I just wonder about seeing a video of someone attempting suicide, it might have some effect.”

16 Now, though the matter has been approached with some sensitivity by Mr Dawson and his client in that fashion, it does raise the question of general principle, though I will consider both the general principle and the more limited application made by Mr Dawson.

17 Before turning to the arguments I should refer to the relevant statutory setting within which this issue arises. My attention has been drawn to Practice Note 97 which deals with access to court files by non parties. Rule 2 of that part is in these terms:

“2. Access will normally be granted to non-parties in respect of;
(A) pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential;
(B) documents that record what was said or done in open court;
(C) material that was admitted into evidence; and
(D) information that would have been heard or seen by and person present in open court,
Unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist.”

18 The final words of that rule suggest a discretion which is framed in terms of the Judge considering, "that the material or portions of it shall be kept confidential.”

19 Counsel for the ABC has drawn attention to a case involving Mr John Marsden. At the very outset of that litigation application was made by Mr Marsden for an injunction to restrain Channel 7 from publication. The application was heard in a small court within the Supreme Court where, as it happened, there were five people present. Channel 7 argued that the presence of those five people, when the application was heard, meant that the matter was then in the public domain, the broadcast having been aired before the Court, including those five individuals.

20 Levine J upheld that argument. He declined to restrain the publication. I have not seen a copy of the Judgment. I am simply repeating the gist of what has been given to me by Counsel. However, its application in this case, it is suggested, is this: At the very outset of this trial, when opening the case to me, the Crown showed me, and those present in court, including journalists, the footage which is now the subject of this application. It cannot therefore be said to be confidential. It is in the public domain. The only inhibition upon its dissemination and repetition is the fact that for the moment the Court has the exhibit to which the broadcasting corporation seeks access. That, in Mr Dawson's submission, is not a relevant consideration. It is in the nature of a mechanical inhibition which should not prevent access.

21 There is some force in that argument. Nonetheless, the matter has been approached before me on the basis that I have a discretion, as I believe I do, even though the matter has been aired in public. I, therefore, turn to the discretion which I have.

22 My attention has been drawn, helpfully, to a number of decisions by judges of this court, mainly the Equity Division, and mainly concerning access to affidavits which are taken as read. They form part of the court file but are not repeated in open court and therefore not available to parties, absent an order making them available by access to the file. A number of Judges have said that such material ought usually be made available. Such limitations as there appear to be upon such access, appear to deal with matters which are not read, that is not relied upon by the parties and which do not form part of the evidence in the proceedings.

23 The Practice Note and the decisions rightly place importance upon the presumption, which is included in the opening words of Pt 97 rule 2, that access will normally be granted. I approach the matter upon the basis that in respect of a public hearing and a matter which is marked as a public exhibit, there is a prima facie right of the public to have access to such material. That prima facie right, however, has been expressed to be subject to the qualification that access should not be granted in circumstances which the Court characterises as wholly exceptional. That was the approach taken by Studdert J in the case of R v LMW [1999] NSWSC 1111, picking up the words of Samuels JA in David Syme & Co Ltd v General Motors Holden Ltd [1984] 2 NSWLR 294 at 310.

24 My attention has also been drawn to the decision of the Court of Appeal in John Fairfax Publications v District Court of New South Wales [2004] NSWCA 324, in which the Chief Justice dealt with the circumstances in which a non publication order or a suppression order may be appropriate. His Honour referred, amongst other things, to John Fairfax and Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, where McHugh JA said, when sitting in the Court of Appeal, that the fundamental rule of common law was that the administration of justice must take place in open court. A court can only depart from that rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule.

25 His Honour went on to say that the principle of open justice also required that nothing should be done to discourage the making of a fair and accurate report of what occurs in a courtroom. Chief Justice Spigelman, with whom Handley JA and Campbell J agreed, characterised the principle of open justice as a human right, as well as a mechanism for ensuring the integrity and efficacy of the institutions of the administration of justice.

26 The issue, therefore, arises whether, in the circumstance of this particular trial, and the exhibit sought, it is appropriate to characterise such circumstances as wholly exceptional.

27 On one previous occasion, I have been confronted with a similar application. I was the trial judge in a case of R v RIK [2004] NSWSC 75, in which the accused was a juvenile, being four days short of his 18th birthday at the time of the alleged offence. He was accused of manslaughter. The circumstances giving rise to the charge concerned an incident on Redfern railway station. It was alleged that, having alighted from a train and without provocation, he began to remonstrate with a person who was sitting on a railway seat and to threaten that person physically, being restrained only by two females who accompanied him.

28 The person who was the subject of these remarks got up, walked around the seat, walked to the edge of the platform, jumped onto the tracks and endeavoured to make his way to the opposite platform. As he did so, a train coming in the opposite direction, on the adjacent platform, collided with him before he reached safety. The video footage was again poignant and graphic.

29 In that case, however, it seemed to me appropriate to accede to an application for access to it. It formed part of the Crown case. It was shown in open court. There were issues of public safety. There were, ultimately, if the accused were convicted, as he was, issues of deterrence. Accordingly, upon application, that footage was released.

30 Once released it then had a great deal of currency in the media coverage which followed. It was obviously more powerful than any description of the same events.

31 There being issues of public safety and public interest, it seemed to me wholly appropriate and entirely consistent with the principles of open justice that such material should be made available, even though the accused was, at the time of the offence, although not at the time of the trial, still a child at law.

32 In this case, however, the public interest in having photographs of the deceased and the accused on that afternoon and in the moments before the death of the young child, is less obvious, although I appreciate that that is not the test.

33 One of the concerns in this case is the future well-being of the accused, since, on any view, whatever the outcome of this trial, and whatever the verdict, she is a person who has experienced major depression and a period of lengthy hospitalisation. She is still under treatment.

34 There are also issues of responsibility. The accused is a person who has raised a defence which, if it is successful, will have the effect that she is not guilty of the murder of her child.

35 Questions arise as to whether the publicity which is intended, and that which is likely to follow, may make this case one which is wholly exceptional. As to that issue, a number of doctors have given evidence. Doctor Parmegiani has given the following evidence of this issue in answer to Counsel for Ms Xu: (T51)

"Q. What is being debated here is the transmission of some part of that footage, not as I understand it, including the final moments but other aspects which would depict the accused and her son in the time immediately before the final moments, or at some time before the final moments, and the issue is whether that transmission would be likely to have any detrimental effect upon the accused?
A. Yes, I believe it would because she obviously knows what comes after, even a small segment of that transmission. So she would be reminded herself of what happened and I would expect that if it is released in the media it would be shown several times, not just once in court, it would have a much larger audience than it had when it was aired here. She may again come across comments from friends, acquaintances or even strangers to the effect that they have seen the footage, and again be reminded of it. I believe this would be a cumulative experience. Seeing once, I think, is bad enough but having to see it several times would be re-exposed to it several times in various ways, would certainly be counter productive."

36 In cross examination by Mr Dawson of Counsel, for the ABC, Dr Parmegiani's attention was drawn to the considerable media coverage of the trial to this point. Dr Parmegiani gave the following evidence: (T58)

"A. Yes, I agreed she has received exposure. My argument is why add to that burden to that exposure; why add more exposure than what has already happened?
Q. If there were to be impact upon the defendant as a result of media coverage of the trial, that impact, would you agree, has to some extent at least already taken place?
A. Yes, some of it has taken place and the more exposure she gets, the more impact she will suffer. That is my argument."

37 In re-examination, Dr Parmegiani said this: (T59)

"Q. In your experience is there a difference or is there potential difference from the impact in relation to the impact upon the accused by reason of media coverage describing the events and the circumstances relating to this case, as opposed to live images of her 4-year old son in the moments being depicted live on television, in the moments before he dies?
A. Yes, well, although it may be a cliché, there is a saying a picture is worth a thousand words. I think being directly visually reminded of the events just preceding the death of her son, may have a significant impact on her well-being.
Q. Doctor, in your opinion is there any difference in relation to the potential impact upon her of the accused viewing the footage on one occasion in the controlled environment of this court on the one hand, and being exposed to it potentially on numerous occasions in an environment that is not controlled?
A. Yes, I think within the local context you may see it as a necessary part of the trial process, something that she can brace herself for, expect and deal with. Whereas any subsequent exposure in my view is totally unnecessary. It doesn't contribute anything to her, either the trial process or clinical progress, it is only for the purpose of the media having access to it and I think it would be counter productive for her."

38 My attention has been drawn to the test which was defined by Spigelman CJ in the John Fairfax publication case. Having said that suppression of material is an exceptional jurisdiction, his Honour then said this at paragraph 94:

"This test required a high level of certainty.”

39 Here the suggestion is that if the material comes to the notice of the accused, either through seeing the material herself or her attention being drawn to it by those who do, then that will be harmful to her rehabilitation.

40 Mr Dawson of Counsel, for the ABC, argues that in the context of a trial, which has proceeded with a deal of publicity to this point, the addition of images, such as the ABC wishes to include when reporting on these proceedings, is unlikely to bring about harm. Alternatively, there is no certainty of harm, as the test postulated by the Chief Justice would seem to require. What might happen, and the effects upon the accused, are speculative in the extreme. Were there harm, over and above that caused by the general publicity surrounding the trial, such matters could be dealt with by the accused's doctors in their counselling of her.

41 It is put on behalf of the accused that the principle of open justice is hardly put in jeopardy by depriving the media of this material. The matter has proceeded in open court. The media have been present throughout. They have seen the video. They are well able to describe what they saw. The only thing they are not able to do is add the spice that inevitably arises from an image.

42 I am persuaded, having heard the psychiatrists, that in some ways it would be preferable, therapeutically, had this trial (and others like it) not received any publicity at all. However, in our system of justice that is not an option. It is important that justice be open and that the media be in a position to report what happens in court, unless they are ordered not to do so for exceptional reasons.

43 However, it does seem to me that there are limits to open justice. One must, at the end of the day, in determining whether there are exceptional circumstances, weigh, on the one hand, the likely harm to the accused were she to become someone notorious as a result of publicity arising from her case, in the way, I might say, that the accused in the Redfern railway case did become the object of very close media scrutiny and may be said to have become notorious and, on the other hand, the compromise to open justice which is involved in the particular order which is suggested. Even if Ms Xu does not become notorious, and there is simply additional publicity, which includes her image and that of her son, what harm is likely to ensue from that? These essentially are the issues arising under the discretion.

44 Having seen the images and understood their poignancy, I do think that there is a risk that the matter may be given wide coverage, especially if images which are made available to this applicant are then taken up by others and used in the print media. Whether or not that happens, I do believe there will be further and not inconsiderable publicity, and that such publicity would be harmful to the rehabilitation of the accused. Compared to that potential harm, the sacrifice to open justice is, in my judgment, small.

45 In the circumstances, I am persuaded that the circumstances are wholly exceptional and that the application should be declined, even in the limited form put forward.

**********