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…

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 Xu (No 1)

Details

AGLC: R v Xu (No 1) [2005] NSWSC 73
Case: [2005] NSWSC 73
Decision Date: 15 February 2005

CaseChat Overview and Summary

The case of R v Xu (No 1) involved a defendant, Xu, who was before the court facing criminal charges. The Australian Broadcasting Corporation (ABC) sought the release of a video tape that had been admitted as an exhibit in the case. The video, which had been shown in open court, potentially contained material that could cause harm to the accused if made public. The court had to weigh the interests of open justice against the potential harm to Xu, particularly considering his mental health condition.

The legal issues before the court were whether the video's contents were so exceptional that they warranted non-disclosure to the public, thereby protecting the accused's rights and health. The court had to balance the principle of open justice, which promotes transparency in legal proceedings, against the need to protect the mental health and well-being of the accused. The court also considered the potential impact on Xu if the video were to be released and the broader implications for similar cases involving individuals with mental health issues.

The court concluded that the material in the video, while distressing, was not of such an exceptional nature as to warrant withholding it from public release. The court emphasised the importance of open justice and the public's right to know about legal proceedings. The judge acknowledged the potential harm to Xu but determined that this did not outweigh the public interest in transparency. The court ruled that the video could be released, subject to certain conditions to mitigate potential harm to Xu.

The final orders included that the video tape exhibit could be released to the public, with conditions to protect Xu's privacy and mental health. These conditions included restrictions on how the video could be distributed and used, as well as provisions for monitoring the impact on Xu. The court also ordered that any subsequent releases of the video be subject to review to ensure ongoing protection of Xu's interests.

Orders