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Supreme Court 6 October 2015

R v Brewer (No 1)

[2015] NSWSC 1471

Homicide
CRIMINAL LAW PRACTICE AND PROCEDURE ACCUSED CHARGED WITH MURDER TRIAL BEFORE JUDGE ALONE APPLICATION FOR ACCESS DENIED

Citation: R v Brewer (No 1) [2015] NSWSC 1471
Court: Supreme Court of New South Wales
Date: 6 October 2015
Judge(s): Bellew J

Background

The accused stood trial before Bellew J, sitting without a jury, on a charge of murder arising from a fatal stabbing at Pendle Hill in March 2014. The Crown's case included CCTV footage of two distinct events: an altercation between the accused and the deceased in an arcade near the deceased's business premises, and the subsequent arrest of the accused.

The altercation footage captured what the Crown alleged were the final moments of the deceased's life, consistent with a fatal stab wound to the heart. The arrest footage recorded the accused giving his account of events, during which he made disparaging comments about the deceased.

Three commercial television stations applied through the court's media officer for access to the CCTV footage. Neither the Crown nor the defence had notice of the specific scope of the applications, and none of the media organisations were legally represented before the court.

  • Whether the court should grant media access to CCTV footage tendered in evidence, pursuant to section 314 of the Criminal Procedure Act 1986 and the Supreme Court Practice Note SC Gen 2
  • Whether the footage depicting the final moments of the deceased's life should be withheld to protect the grief and privacy interests of the deceased's family
  • Whether the accused's personal embarrassment at the content of the arrest footage constituted a sufficient basis to refuse media access, particularly in a judge-alone trial

Decision

Bellew J considered the applicable framework under section 314 of the Criminal Procedure Act 1986 and Practice Note SC Gen 2. Because the footage had been played in open court, the starting position was that access should be granted unless there was good reason to treat the material as confidential.

His Honour drew on the reasoning of Adamson J in R v Abdallah (No 3) [2015] NSWSC 121, where access to similar footage was refused in part because the trial was before a jury, and in part because of the impact on the deceased's family. Bellew J distinguished the jury-related concern entirely, as the present proceedings were before a judge alone. However, he adopted and applied the family grief consideration from Abdallah without qualification.

On the altercation footage, his Honour was satisfied that broadcasting images of the deceased's final moments would significantly aggravate the grief and distress already suffered by the deceased's family, including his young children. That conclusion was sufficient to treat this portion of the footage as confidential, and access was refused.

On the arrest footage, the accused's submission rested solely on personal embarrassment. Bellew J accepted that some embarrassment might result from release, but held that this did not outweigh the principles of open justice, particularly given the absence of any jury to be influenced. Access to the arrest footage was granted.

Orders Made

  • Application for access to the CCTV footage depicting the altercation and the final moments of the deceased's life: refused
  • Application for access to the CCTV footage of the accused's arrest: granted

Key Takeaways

  • The Supreme Court confirmed that CCTV footage played in open court is subject to the access framework under Practice Note SC Gen 2 and section 314 of the Criminal Procedure Act 1986, with access the default position absent good reason for confidentiality.
  • Likely aggravation of grief and distress to a deceased's family, including young children, can constitute sufficient grounds to withhold evidentiary footage from media access, consistent with the approach taken in R v Abdallah (No 3).
  • The concern in Abdallah about jury influence does not carry across to judge-alone trials, meaning that factor cannot support restrictions on media access in that context.
  • Personal embarrassment on the part of an accused about the content of evidence does not, on its own, outweigh the principles of open justice in a judge-alone criminal trial.
  • Where media organisations seek access to court material, their failure to appear and make submissions is a relevant practical consideration, though it does not necessarily preclude the court from ruling on the application.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), section 314
- Supreme Court Practice Note SC Gen 2

Cases
- R v Abdallah (No 3) [2015] NSWSC 121 (Adamson J)