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District Court 13 July 2018

R v Christos Tsekas (No. 2)

[2018] NSWDC 188

Other
APPLICATION BY NON

Citation: R v Christos Tsekas (No. 2) [2018] NSWDC 188
Court: District Court of New South Wales
Date: 13 July 2018
Judge(s): Mahony SC DCJ

Background

A special hearing was conducted under the Mental Health (Forensic Provisions) Act 1990 in relation to a charge of wounding with intent to murder, with an alternative charge of wounding with intent to cause grievous bodily harm. On 13 July 2018, the accused was found not guilty by reason of mental illness on the primary count. No verdict was required on the alternative count.

During the hearing, two journalists from Channel 7 News Sydney made three separate applications for access to court exhibits. The material sought included the accused's electronically recorded interview with police (ERISP), a transcript of that interview, photographs of the knife used, and other crime scene and victim photographs.

The accused's counsel opposed release of the ERISP DVD and photographs of the victim, while the Crown also withheld consent to media access. The court called for submissions from all parties before resolving the applications.

Legal Issues

  • Whether non-party media organisations have an entitlement to access exhibits held by the court
  • Whether the ERISP DVD of the accused's police interview should be released to the media
  • Whether the transcript of the ERISP interview should be released
  • Whether photographs of the victim, the accused, and the crime scene should be released

Decision

Issue 1: General principles governing access

The court applied the principle confirmed by the NSW Court of Appeal in John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101, that open justice is a principle rather than a right, and no common law right to access court documents exists. Harm to individuals and the risk of publication without the ordinary protections against defamatory statements were identified as relevant considerations. Section 314 of the Criminal Procedure Act 1986 was noted as having some bearing, though the court also recognised that judicial power in this area is not necessarily confined to that provision (at [7]-[8], [13]).

Issue 2: The ERISP DVD

The court refused access to the DVD recording of the accused's police interview. The accused had been interviewed shortly after the incident, with a daughter present as a support person, and had displayed clear signs of delusional thinking during the interview. The court found that releasing the DVD would be detrimental to the accused's interests and welfare and to those of his family (at [14]).

Issue 3: The ERISP transcript

Despite refusing access to the DVD, the court granted access to the written transcript of the same interview, finding that doing so served the interest of open justice (at [15]). The Crown had conceded the transcript should be available, and the accused's counsel did not oppose its release.

Issue 4: Photographs

The court refused access to photographs of the victim and his injuries, finding release would constitute a gross invasion of the victim's privacy and would be detrimental to his wellbeing (at [16]). Photographs of the accused's injuries were also refused on public interest grounds (at [16]). However, the court granted access to photographs of the meat cleaver and crime scene photographs, including images of rooms and clothing, concluding that release of this material was in the public interest (at [17]).

Orders Made

The Registrar of the District Court was directed to grant access to the applicants (Mr Evan Batten and Ms Leonie Ryan) to the following:

  • Exhibit B: the transcript of the accused's ERISP interview
  • Exhibit A.13: photographs, including photographs of the knife
  • Exhibit A.13A: photographs of the crime scene and clothing

Key Takeaways

  • Open justice is a principle rather than a right, and no common law entitlement to access documents held by a court exists, as confirmed in John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101 and applied here (at [7]).
  • The District Court drew a clear distinction between audio-visual recordings and written transcripts of the same interview: the ERISP DVD was withheld to protect the accused's welfare, while the transcript was released in the interest of open justice (at [14]-[15]).
  • Harm to the privacy and wellbeing of victims, and the welfare interests of an accused found not guilty by reason of mental illness, each constituted sufficient grounds to refuse media access to particular exhibits (at [14], [16]).
  • Where photographs depicted the weapon and general crime scene rather than the persons involved, the court was satisfied that the public interest supported release (at [17]).
  • Prior Supreme Court decisions, including R v Abdallah (No. 3) and R v Brewer (No. 1), confirmed that the potential grief and distress of families, as well as the dignity of victims, are legitimate considerations when courts exercise their discretion over media access to exhibits (at [9]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Criminal Procedure Act 1986

Cases
- R v Abdallah (No. 3) [2015] NSWSC 121
- R v Brewer (No. 1) [2015] NSWSC 1471
- R v Elomar (No. 3) [2008] NSWSC 1443