R v Yau Kim Lam (Ruling No. 1)

[2004] VSC 264

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1424 of 2004

THE QUEEN	Plaintiff
v
YAU KIM LAM, KIAM-FAH TENG, CHIN KWANG LEE, TA SONG WONG, DONG SONG CHOI, MAN SUN SONG, MAN JIN RI and JU CHON RI	Defendants

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JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 July 2004
DATE OF JUDGMENT:	27 July 2004
CASE MAY BE CITED AS:	R v Yau Kim Lam and Ors (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2004] VSC 264

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COURTS: ADMINISTRATION OF JUSTICE – Prohibition of publication of material said to prejudice fair trial of the accused – Criminal proceedings – Jury trials – Pre‑trial publicity – Inherent power of Court to protect right to fair trial - Supreme Court Act 1986 ss.18 and 19.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr J. Champion SC with Mr J. Cahill	Solicitor to the Director of Public Prosecutions (Cth)
For the Accused Kaim‑Fah Teng	Mr G.A. Georgiou	Victoria Legal aid
For the Accused Ta Song Wong	Mr A. Lewis	Victoria Legal Aid
For the Accused Dong Song Choi, Man Sun Song, Man Jin Ri, Ju Chon Ri	Mr P. Faris Q.C.	Ellinghaus & Lindner
For Victoria Legal Aid	Ms J. Deleo, Solicitor
For the Australian Broadcasting Commission	Mr J. Quill, Solicitor	Corrs Chambers Westgarth

HIS HONOUR:

1. The ABC has promoted its intention to broadcast tonight on “Foreign Correspondent” a program which will investigate, it says, the background to the arrival of the freighter Pong Su in Australian waters in April 2003.  The promotion of its intention to so broadcast has been by the broadcast on several occasions in the last few days of a short promotional film and, in addition by a publication placed upon the web‑site of the ABC relating to “Foreign Correspondent”. 

1. The Commonwealth DPP has tendered before me a video tape of the promotional material which clearly refers to the Pong Su in the context of being seen off the Victorian coast, and which asserts that the ship was associated with a large shipment of heroin into Victoria.  Furthermore, the video tape suggests that importation of heroin into Australia was orchestrated by the North Korean government.

1. The material appearing on the web site appears at the end of this ruling.

1. The Commonwealth DPP through Mr Champion SC and Mr Cahill submits that orders should be made suppressing the broadcasting in Victoria of the program which has been foreshadowed by the promotional material.  The DPP is supported in this regard by counsel for the accused men, some of whom, such as Mr Faris QC, who appear as amicus curiae.  Mr Faris submits that in addition the web-site material should be the subject of a suppression order.  In this he is supported by all counsel for the accused.

1. Indeed, the submission made by counsel for each accused is that the web-site material demonstrates that a contempt has occurred already and that it can be inferred that the program to be aired tonight will, on that basis, be a serious interference with the administration of justice.  Likewise, Mr Champion SC relies upon the fact that the material which is already in the public arena by reason of the web site, makes an assertion that the Pong Su, and its crew were engaged in a State sponsored undertaking, and that the material in question by implication, asserts the guilt of the accused on the basis of an association with that State undertaking.  Mr Champion SC submits that the case to come before the court is an unusual, and “high profile” case and that the assertions made are likely to be remembered by prospective jurors for a considerable period of time.  The basis of the contention by Mr Faris QC that the material which has been published already is “plainly a contempt of court”, in that it asserts that the heroin which was later discovered by Federal police, was brought to Australia on the Pong Su, which he submits will be a significant issue in dispute at trial and furthermore, that it asserts that the North Korean government was involved in the transaction in circumstances where the prosecution does not so contend.  He submits that these assertions clearly have the capacity to prejudice the fair trial of the accused persons. 

1. The material before me demonstrates that the Australian Broadcasting Commission was requested by the Commonwealth DPP to provide a copy of the video tape and a transcript of the program to it on 22 July 2004.  That request was ignored by the ABC, and by letter of 26 July 2004 the DPP again sought the opportunity to have some input into the matter.  On the same day a written response to the request of the Commonwealth DPP and signed by the Executive Producer of “Foreign Correspondent” was made whereby the ABC rejected the request from the DPP on the basis that legal advice had been taken, and that such advice was to the effect that the report would not affect the fair trial of the accused men.  This morning the ABC offered to provide a transcript of the program to the DPP and to the other parties, but on condition that it not be used in any application before me.  Counsel, not surprisingly, did not accept that offer.  It is regrettable that the ABC did not, as in my experience has happened in the past, check with the DPP to endeavour to ensure that any concerns could be resolved.  Those advising the ABC are highly unlikely to have the detailed knowledge of the nature of the case that the DPP has of it.  On any view, the responsibility of the media to take care not to publish prejudicial material, increases considerably after committal, and particularly after the commencement of the trial by way of arraignment of the accused, as has happened in this case. 

1. As submitted by Mr Champion SC the court has power to suppress publication either under s.18(1)(c) of the Supreme Court Act 1986 or under its inherent jurisdiction to protect its own curial processes. The power under s.18(1)(c) is that the court, in the circumstances set out in s.19, to which I will refer, may “make an order prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding”.

1. Section 19(b) of the Supreme Court Act provides that the court may make an order under s.18 if “in its opinion it is necessary to do so in order not to prejudice the administration of justice”.

1. The proposed publication is not the publication of any part of a proceeding, nor is it apparent to me that the information proposed to be published is necessarily derived from a proceeding, save that it is apparent from the promotional material shown on ABC last night that the ABC has possession of at least one video tape, if not more, which was taken by Federal police and which was tendered at the committal proceeding in this matter.  Those videotapes have been provided to me as part of the depositions.  Furthermore, it is apparent from the web‑site material that the basis of the assertion that the North Korean government was involved in the events the subject of this trial is certainly not derived from the proceeding.  Indeed, there is no evidence to this effect before the court and as I understand it, the evidence before the learned Magistrate who conducted the hearing of the committal was to the contrary.  Notwithstanding that I am not satisfied that the proposed broadcast is a publication of a proceeding or part thereof, I am satisfied that the inherent power of the court to protect its own curial processes and to protect the fair trial of persons enlivens the jurisdiction so as to have the matter properly brought before me by the Commonwealth DPP. 

1. The test to be applied by me is whether there is a real risk of serious interference with the administration of justice.[1]  In order to consider this question it is necessary to look at the point the proceedings have reached, the nature of the proposed interference with the administration of justice, which is alleged, together with other factors.  In so far as the state of the proceeding is concerned, the position is that each of the eight accused persons was arraigned on 15 July 2004.  At that time each of the accused pleaded not guilty to the charges alleged against him.  There are a number of pre‑trial issues to be determined and it is apparent that the empanelment of a jury will not take place before January 2005. 

   [1]John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-7.

1. The leading authority which gives guidance in this matter is Hinch v Attorney‑General for the State of Victoria[2].  At p.19 of that report Mason CJ cited with approval the following statement in the judgment of Jordan CJ in Ex parte Bread Manufactures Limited v Truth and Sports Limited[3]which stated:

“It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a court of justice from having his case tried free from all manner of prejudice.  But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party and the conduct of the law suit, it does not follow that a contempt has been committed.  The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and to superior considerations.”

[2](1987) 164 CLR 15.

[3](1937) 37 SR (NSW) 242 at pp.249-250.

1. Furthermore, at p.28, Mason CJ said:

“In assessing whether a particular publication presents a real risk of serious prejudice to a fair trial, that is serious injustice, it is necessary to ascertain whether the references to the subject matter of the litigation are central or merely incidental to the topic of public discussion.  If the references to an issue in the litigation are essential to the discussion the likelihood of prejudice or serious prejudice is all the stronger.  If however the references to the litigation are merely incidental, in the majority of cases there is unlikely to be a real risk of prejudice to the litigation.

Whether a particular publication amounts to a contempt in the sense just discussed depends upon a number of factors.  They include the nature and extent of the publication, the mode of trial (whether by judge or jury) and the time which will elapse between publication and trial.  The significance of these matters has been examined in the decided cases so that they need no elaboration.”

1. In Ex parte Telegraph PLC and other appeals Lord Taylor CJ, in giving the judgment of the court, stated:

“In determining whether publication of a matter would cause a substantial risk of prejudice to a future trial, a court should credit the jury with the will and ability to abide by the judge’s direction to decide the case only on the evidence before them.  The court should also bear in mind that the staying power and detail of publicity, even in cases of notoriety, are limited and that the nature of a trial is to focus the jury’s minds on the evidence put before them rather than on matters outside the court room … “

1. In the matter before me there are a number of issues of concern which arise by reason of the promotional material.  First, the references to issues the subject of the trial and which would appear to be proposed to be made in the program tonight, and to which reference is made on the web‑site, are central to a discussion which appears to be the principal topic dealt with by the program.  For instance, the web-site asserts not by way of allegation, but directly, that 150 kilograms of heroin was offloaded from the Pong Su and brought to shore by two men in a small boat which at one point capsized, drowning one man and resulting in the loss of 25 kilograms of heroin.  This matter is an issue of central dispute in the proceedings before the court.  If, as pointed out by Mason CJ in Hinch, the references to an issue in the proceedings are central to the media discussion, the likelihood of prejudice or serious prejudice is all the stronger.  Accordingly, there are concerns which in my view have foundation that the program to be aired tonight may have the capacity to affect the administration of justice. 

1. However, I am required to balance matters of legitimate public discussion with the necessity to avoid the risk of serious interference with the administration of justice. 

1. I do not propose to express an opinion as to whether what currently appears on the “Foreign Correspondent” web-site is at the present time a contempt of court save to say that it  is, in my view, a matter of substantial concern to the administration of justice that some parts of the media are now commencing to give significant publicity to cases which are well past the committal stage, and in which arraignments have taken place.[4]  I have little doubt that were such material to be placed upon the ABC web-site either shortly prior to the empanelment of a jury, or to remain upon the web site during the trial, a strong argument could be mounted that it would be a serious interference with the administration of justice and a serious contempt.  However, I propose to make no finding at this time. 

   [4]At the handing down of this ruling Mr Quill who appears for the ABC informed me that the material on the ABC "Foreign Correspondent" web site "has been removed from the web site" and "no longer appears on the web site". (Transcript p.32)

1. I turn to the question of whether the program to be broadcast throughout Australia should be suppressed in Victoria tonight.  I have concerns that the publicity proposed will state a set of facts, and make assertions, which may remain in the minds of some jurors even up to the point of trial early next year.  It is, as I have said, a matter of concern that the web-site discussion of the forthcoming program does not refer to the fact that at this stage allegations only, are made against the crew of the Pong Su and others, and that such issues have not been determined by a court. 

1. As I have said, had the ABC chosen to permit the DPP to view the video tape the DPP would be able to give advice to the ABC as to the more contentious aspects of it.  The approach which the ABC has taken in this regard may render any contempt which may arise by reason of the broadcast tonight to be all the more egregious.  It appears to me, on the material before me, that there is at least a possibility that the program which is to be aired tonight has some risk of interfering with the administration of justice and in circumstances where these proceedings today have ventilated the matter, it may well be argued that any contempt which is committed will be all the more contumelious. 

1. However, that said, the authorities do not permit me to interfere with matters of legitimate public discussion unless a real risk of serious interference with the administration of justice arises.  I am not satisfied on the material before me that such a real risk of serious interference with the administration of justice does arise.  Significant in my consideration of this issue is the fact that the trial of this proceeding will not commence before a jury until at least late January of 2005.  Furthermore, I do not consider the material, such as it is known to be at present, is such as to render it probable that a fair trial of the accused persons, or the appearance of a fair trial of the accused persons, is at risk.  As stated by Cummins J in DPP v Carl Williams [204] VSC 209 “ …  The experience of the courts is that juries are both responsible and robust and are well able to judge cases solely on the evidence led in court.”  The principal issue raised by the learned prosecutor before me and relied upon by Mr Faris by implication is that the thrust of the program about to be broadcast appears to be that drug running and importation into Australia of heroin is an activity sponsored by the State of North Korea.  At an early stage in the trial it will, no doubt, become apparent to the jury, that there is no evidence whatsoever before them of such an assertion.  I have little doubt that a jury empanelled some six months away from now, will comply with appropriate directions which undoubtedly will be given to them in relation to extravagant reporting by the media.  Likewise, the assertions which appear on the web-site that the Pong Su did bring heroin to the shores of Australia is an assertion which has been the subject of significant publicity in the past.  Certainly it should not be the subject of continued assertion now that this trial is moving towards empanelment of a jury, but as currently informed I do not consider that that issue raises a real risk of interference with the administration of justice at this time. 

1. On the material before me I am unable to judge whether the material to be broadcast tonight will prove to be a contempt.  I acknowledge the weight of Mr Faris’ submission to me that it will not assist his client if the ABC is dealt with for contempt if the program affects his client’s right to a fair trial.  That factor is a relevant factor for all eight accused, each of whom I note has now been in custody for a period approaching 15 months.  Obviously the adjournment of this trial by reason of irresponsible reporting on the part of the media would cause a serious detriment to each of the accused and no doubt to the prosecution who relies upon the recent memory of a large number of witnesses.  However, on balance I am not satisfied that there is a real risk of serious interference with the administration of justice on the basis of the material which has been put before me and I do not propose to make any order.

1. However, the fact that I do not make any such order in the circumstances now before me should not be interpreted by any section of the media as an indication of a lack of resolve on the part of the Court to protect the administration of justice.  Clearly the period between arraignment and empanelment of a jury is particularly relevant to my conclusion.  An entirely different view of the matter might be taken at a point of time closer to the empanelment of a jury, and of course a different view altogether might be taken after the airing of the program tonight.

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