THE mother of the man who killed baby Zayden Veal-Whitting was put on probation during her son’s trial after ignoring a judge’s order not to publish photos that depicted Harley Hicks in custody.
Wendy Clark photographed her son, Harley Hicks, in the dock of the Supreme Court on April 4 and made it her Facebook profile image – leading to her being put on probation until the end of the court proceedings.
The photograph could have resulted in three contempt of court charges: taking a photo in court, breaching a suppression order and publishing material calculated to prejudice the accused's fair trial.
Justice Stephen Kaye, who prohibited the publication of any image depicting Hicks being held in custody throughout the trial, said the matter was “extremely serious’’.
“This court is not Hollywood. This is serious business and photographs are not permitted in court,’’ he said.
Mrs Clark was asked in court on the Saturday following the Facebook post why she had published the photo, to which she replied “I thought it was only media’’.
“I regard that as a contempt in the face of the court and secondly as a contempt of my order,’’ Justice Kaye said.
“Mrs Clark you're in contempt of court … I have power to jail you immediately, do you understand that?
“I will not do that, but what I will do is I will firstly make an order that you immediately take it down from your Facebook account.
“Secondly, because I want that confirmed, you will be excluded from attending this court until it's taken down.
“Thirdly I will make an order that you attend before me at 10 o'clock on Monday morning, and I suggest you get legal advice, in order to make submissions why I should not direct the Prothonotary to start contempt proceedings against you. This is a very serious matter.
“I suggest strongly that you go and get legal advice. It was both a foolish thing to do, it was in direct contempt of my order, and you are not permitted to take photographs in court, whether I'm here or not.
“This is a very, very, serious criminal trial, I cannot believe you've done this.’’
Representing Mrs Clark the following Monday morning, lawyer Megan Aumair told the court Mrs Clark acknowledged she was “incredibly foolish’’ and was deeply sorry for what she had done.
Ms Aumair said Mrs Clark’s actions were not of wilful disobedience, but rather she wanted her family to be able to see her son as they had not done so for a long time.
“The intention of the photograph was to show a picture of her son Harley to her close family members who've not been able to have any contact with him or see him since he was remanded in custody in May of 2012,’’ Ms Aumair said.
“She has three young children … who've not seen him in that time, have not been able to visit him and she thought this was a way for her to be able to show a picture of him albeit in his prison greens in the dock.
“It was foolish and she acknowledges the folly in that conduct.
“She spent the last five weeks in court listening to the evidence. It's been for many, many people involved in this court a harrowing experience … and she's come to the end of it just about at the end of her tether also and she made a very foolish decision but it was not a deliberate defiance of the court order. ‘’
But Justice Kaye said while he accepted Mrs Clark was sorry, carefully edited pictures of Hicks were circulating in the media so there was no reason why she needed to put her own image on Facebook.
“There are photographs of the accused in the media which have been very carefully doctored out any implication that he was in custody and that was the whole intent to protect her son's rights to a fair trial,’’ he said.
“So she did not need to do it. Anyone who looked at the newspaper would have seen a very recent photograph of Harley Hicks.
“The court has to think hard before it makes an exception in Mrs Hicks' favour because the normal course automatically is to send this to the Prothonotary, have proceedings brought for contempt … and in 99 per cent of the cases they go to the jail,’’ he said.
“One more step out of line and I'll ban her.’’
Justice Kaye said he had problems with the behaviour of certain people in the court room throughout the trial, but Mrs Clark was not one of them.