Citation: R v Tabbah; R v Tiriaki (No 3) [2014] NSWSC 566
Court: Supreme Court of New South Wales
Date: 11 April 2014
Judge: Schmidt J
Background
Two accused persons were on trial in the Supreme Court. During the proceedings, it came to light that photographers had taken, or attempted to take, photographs of the accused while they were in handcuffs and accompanied by Corrective Services staff.
The defence raised visual identification as a live issue in the trial, contending that the identities of the accused were not clearly established by the available CCTV footage. The Crown disputed this characterisation, arguing the CCTV images lacked sufficient clarity for reliable identification either way.
Against that backdrop, the accused applied for a non-publication order to prevent photographs of them from being published, on the basis that such publication could prejudice their right to a fair trial.
Legal Issues
- Whether a non-publication order should be made under s 8 of the Court Suppression and Non-Publication Orders Act 2010
- Whether publication of photographs identifying the accused in custody would prejudice the proper administration of justice, given that visual identification was in dispute at trial
Decision
Schmidt J acknowledged the application was "somewhat finely balanced" but concluded that a non-publication order was the better course given the circumstances that had arisen. The central concern was the potential for photographs of the accused to influence or contaminate the visual identification issue before the jury.
The Court was satisfied that, given the live dispute between the parties about visual identification, the order was necessary to prevent prejudice to the proper administration of justice. The order was also found to serve the public interest by ensuring the accused received a fair trial.
During submissions, defence counsel raised an additional concern: photographs could be cropped so that the accused appeared without Corrective Services staff in frame, yet still show them in handcuffs. Schmidt J accepted this concern and extended the order's terms to cover both scenarios, prohibiting publication of photographs showing the accused either accompanied by Corrective Services staff or in handcuffs.
Orders Made
- No photograph identifying, or tending to identify, either accused while being accompanied by members of Corrective Services staff, or in handcuffs, is to be published.
- The order was made on the ground that it is necessary to prevent prejudice to the proper administration of justice and is in the public interest to ensure a fair trial.
Key Takeaways
- Under s 8 of the Court Suppression and Non-Publication Orders Act 2010, a non-publication order may be made where publication of material would prejudice the proper administration of justice, including by undermining a fair trial.
- Where visual identification is a live and contested issue at trial, the Supreme Court found that photographs of the accused in a custodial setting could constitute a real risk of prejudice warranting suppression.
- The court's reasoning treated fair trial rights as a matter of public interest, not merely a private interest of the accused, satisfying the statutory requirement that any order serve the public interest.
- Practical details of how media might present photographs, such as cropping to remove contextual elements, were taken into account in framing the scope of the order.
- The decision was delivered ex tempore (on the spot, without a written reserved judgment), reflecting the urgency of the publication risk during an ongoing trial.
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8
Cases cited: None cited in the judgment.