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Supreme Court 15 February 2005

R v Shan Shan Xu [No 1]

[2005] NSWSC 73

Also reported as 152 A Crim R 17
Homicide
CRIMINAL LAW VIDEO SHOWN IN OPEN COURT POTENTIAL HARM TO ACCUSED INTERESTS OF OPEN JUSTICE INTERESTS OF PERSON WITH MENTAL ILLNESS

Citation: R v Shan Shan Xu [No 1] [2005] NSWSC 73
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 15 February 2005
Judge(s): Kirby J

Background

The accused faced a murder charge in a judge-alone trial involving the death of her four-year-old son. CCTV footage from a wharf had been tendered as Exhibit A, showing the accused and her son walking to the end of the wharf before both entered the Parramatta River. The child died. The accused raised the defence of mental illness, supported by expert psychiatric evidence from both the Crown and defence.

The ABC applied to the court for access to the CCTV footage exhibit. The ABC indicated it did not seek to broadcast the final moments captured on the tape, but sought access to other portions of the footage that had been played in open court.

The court was required to determine whether to release the footage, set against the principles of open justice and the potential harm that publication might cause to the accused, who suffered from a serious mental illness.

  • Whether the CCTV footage, having been tendered and played in open court, should be released to a media organisation (the ABC) under the court's access rules
  • Whether "exceptional circumstances" existed within the meaning of Practice Note 97, Rule 2 justifying the refusal of access
  • How to balance the principle of open justice against the potential harm to an accused person suffering from a mental illness
  • Whether the risk of harm from publication of the footage was sufficiently concrete to justify withholding exhibit material from the media

Decision

Kirby J refused the application. His Honour acknowledged the foundational importance of open justice and recognised that media organisations have a legitimate role in reporting court proceedings. The fact that the footage had been played in open court, and that journalists present had observed it directly, was a significant starting point. Under Practice Note 97, material admitted into evidence is normally accessible to non-parties unless the court considers it should be kept confidential.

A forensic psychiatrist, Dr Nielssen, gave evidence that depictions of suicide attempts in the media can lead to imitative behaviour, and that widespread broadcast of footage of this nature carried a risk of harm beyond the accused herself. His Honour took this expert evidence into account, alongside the particular vulnerability of the accused as a person with a serious mental illness.

Kirby J weighed the likely harm to the accused's rehabilitation and wellbeing against the degree of compromise to open justice involved in withholding the footage. His Honour concluded the sacrifice to open justice was comparatively small: journalists had seen the footage and could describe what occurred in words. The only additional element that release of the footage would provide was the visual image itself, together with the risk of broad republication by other outlets. In those circumstances, his Honour found the circumstances were "wholly exceptional" and that the harm to the accused outweighed the public interest in release.

The refusal applied even to the more limited form of access the ABC had proposed.

Orders Made

  • Application by the ABC for access to Exhibit A (CCTV video footage) refused.

Key Takeaways

  • The Supreme Court held that, even where exhibit material has been played in open court, a court retains a discretion to refuse media access where "wholly exceptional circumstances" exist.
  • Open justice does not require the release of visual exhibit material in every case; the principle is adequately served where journalists present in court are able to report on what they saw and heard.
  • Psychiatric evidence about the risk of harm to an accused with mental illness, including the risk of imitative behaviour in the broader community, is a relevant consideration when courts assess applications for access to exhibits.
  • The potential for footage to be republished widely beyond the original applicant is a factor that can be weighed against release, even where the applicant itself proposes a limited use.
  • In balancing competing interests, the court assessed the concrete harm to the accused's rehabilitation against the marginal gain to open justice from releasing images rather than permitting verbal reporting alone.

Legislation and Cases Referenced

Practice Note:
- Practice Note 97 (Supreme Court of NSW), Rule 2 (access to court files by non-parties)

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