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Supreme Court 14 February 2018

R v Cliff (No 3)

[2018] NSWSC 129

Other
CRIMINAL LAW APPLICATION FOR MEDIA ACCESS AUDIO VISUAL RECORDING OPEN JUSTICE PRINCIPLE APPLICATION FOR ACCESS REFUSED

Citation: R v Cliff (No 3) [2018] NSWSC 129
Court: Supreme Court of New South Wales
Date: 14 February 2018
Judge: Campbell J

Background

During an ongoing murder trial, several media organisations applied for access to an audio-visual "walk-through" recording made by police of a Crown witness, along with an accompanying transcript provided to the jury as a listening aid. The recording had been played in open court and, by agreement between the Crown and defence, served substantially as the witness's evidence-in-chief.

The recording was not formally marked as an exhibit, consistent with established New South Wales criminal court practice. The transcript was withdrawn from the jury immediately after the recording was played and formed no part of the evidence. The media application was advanced in court by two journalists representing Fairfax Media and WIN News, with submissions also received from counsel for the parties.

The trial involved events described as having shocked the local community in Wagga Wagga, and the proceedings had attracted consistent media and public attendance.

  • Whether the open justice principle confers a freestanding right on media organisations to access material used in open court
  • Whether the court should exercise its implied power to control its own processes to grant the media access to the audio-visual recording and transcript
  • What weight should be given to the restrictions already placed on the jury's own access to the same material

Decision

Campbell J began by confirming the applicable legal framework drawn from the Court of Appeal's decision in John Fairfax Publications Pty Ltd v Ryde Local Court. The open justice principle, while fundamental to the Australian legal system, is a principle rather than a freestanding right. It does not automatically entitle the media or the public to access court documents or recordings, and the burden rests on the applicants to demonstrate that access ought to be granted.

His Honour acknowledged that the use of material in open court will often weigh in favour of granting access, but emphasised that this factor is not determinative. The court retains the power to refuse access where the circumstances warrant it.

A central consideration was the restricted access that the jury itself had to the material. In accordance with the invariable practice of New South Wales criminal courts, confirmed by both the Court of Criminal Appeal in R v NZ and the High Court in Gately v The Queen, the jury would have no further unsupervised access to the recording. If they wished to revisit it, the proper procedure required replaying it in court in the presence of all parties, accompanied by relevant cross-examination material, so the jury would always have a balanced view of the evidence.

Campbell J reasoned that the public could have no greater right of access to the material than the jury responsible for deciding the case. Granting unrestricted media access to the evidence-in-chief of one witness, without the cross-examination that challenged its reliability, would be inconsistent with the controlled conditions under which the jury was required to consider that evidence. His Honour also recorded an impression, without making any formal finding, that the application appeared more directed at satisfying public curiosity than serving a genuine public interest in the administration of justice. The application was refused.

Orders Made

  • The application by media organisations for access to the audio-visual recording (MFI 6) and accompanying transcript (MFI 7) was refused.

Key Takeaways

  • The open justice principle does not create a freestanding right of access to materials used in court proceedings; it functions as a guiding principle in the court's exercise of its discretion, and the burden falls on the applicant to make out the case for access.
  • Consistent with the Court of Appeal's decision in John Fairfax Publications v Ryde Local Court, the fact that material was used in open court weighs in favour of access but does not compel it, and the court retains the power to refuse.
  • Where established criminal procedure restricts the jury's own access to evidentiary material, the public and media can be in no stronger position than the jury charged with deciding the case.
  • Granting access to only one part of a witness's evidence, specifically the evidence-in-chief recorded by police, without the cross-examination that tested its reliability, was found to be inconsistent with the balanced framework under which the jury considers the same material.
  • Audio-visual recordings admitted in criminal proceedings under agreed arrangements, rather than through the ordinary rules of evidence, may contain content, including speculation, opinions, and conclusions, that would not have been permitted in conventional witness examination, a factor informing the court's approach to access applications.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (Cth), s 66

Cases
- Esso Australia Resources Limited v Plowman (1995) 183 CLR 10
- Gately v The Queen (2007) 232 CLR 208; [2005] HCA 55
- John Fairfax Publications Pty Ltd & Ors v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101
- R v NZ (2005) 62 NSWLR 628; [2005] NSWCCA 278
- Smith v Harris [1996] 2 VR 335