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Supreme Court 30 April 2018

R v Gatt (No 5)

[2018] NSWSC 447

Homicide
CRIMINAL LAW PRACTICE AND PROCEDURE APPLICATION BY MEDIA TO CCTV FOOTAGE OPEN JUSTICE FAIR REPORTING ADMINISTRATION OF JUSTICE

Citation: R v Gatt (No 5) [2018] NSWSC 447
Court: Supreme Court of New South Wales
Date: 30 April 2018
Judge(s): Schmidt J

Background

During an ongoing murder trial, two media organisations sought access to a CCTV exhibit tendered in evidence. The exhibit, Exhibit 34, captured the final moments of the deceased victim as he ran down a road after being shot and collapsed and died. The footage had been played in open court on multiple occasions during witness evidence.

Representatives from Channel 9 and the Sydney Morning Herald each made separate applications to copy the footage, citing the principle of open justice and the media's role in providing fair and accurate reporting of court proceedings. Both the prosecution and the defence opposed the applications.

The trial was proceeding with a jury of 11 members, following the earlier discharge of one juror, making the potential for outside influence on deliberations a live concern.

  • Whether the media should be granted access to CCTV footage that had been tendered as an exhibit in an ongoing criminal trial, permitting it to be copied and broadcast
  • How to balance the open justice principle against the proper administration of justice and the integrity of the jury trial
  • Whether granting access would cause unnecessary distress to the victim's family
  • Whether media access to the exhibit was consistent with the Court's Practice Note SC Gen 2

Decision

Schmidt J refused both applications. Her Honour accepted that the open justice principle is an important consideration but held that it must be weighed against other relevant factors, including the fair administration of justice and the wellbeing of the victim's family.

The CCTV footage, which depicted the last moments of the victim's life, did not fall within the media access provisions of s 314(2) of the Criminal Procedure Act 1986 (NSW). It did, however, fall within the Court's Practice Note SC Gen 2, which expressly contemplates that some access applications will be refused.

A central concern was the risk of jury prejudice. Schmidt J adopted the reasoning of Adamson J in R v Abdallah (No 3), observing that broadcast of vivid footage mid-trial could encourage ill-informed public judgments, potentially placing inappropriate pressure on jurors who had heard the full evidence. That risk was characterised as inimical to the proper administration of justice.

The court also noted that the footage's broadcast would add unnecessarily to the distress already suffered by the victim's family, who had been present in court when the footage was played and whose distress had already required one adjournment. Her Honour observed that the media remained free to report in words what the footage depicted, and that this freedom was sufficient to satisfy the community's interest in open justice and accurate reporting.

Orders Made

• Decline access to Exhibit 34 (CCTV footage of deceased Bassil Hijazi)

Key Takeaways

  • The open justice principle does not automatically entitle the media to copy and broadcast CCTV exhibits tendered during an ongoing criminal trial; it is one consideration to be weighed against others, including the proper administration of justice.
  • CCTV footage of a victim's death fell within the Court's Practice Note SC Gen 2 on access to court files but not within the specific media access provisions of s 314(2) of the Criminal Procedure Act 1986 (NSW), meaning access could be refused in the court's discretion.
  • Refusing access to a CCTV exhibit mid-trial does not prevent fair reporting: the media retains the freedom to report in words what the footage depicts, and Schmidt J held that this was sufficient to satisfy open justice interests in the circumstances.
  • Where broadcast of distressing footage risks encouraging uninformed public commentary that could influence jurors, even unconsciously, courts have treated that risk as a material reason to refuse media access to exhibits.
  • The potential for unnecessary distress to a victim's family formed a distinct, additional basis for refusal, separate from concerns about jury integrity.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 314
- Supreme Court Practice Note SC Gen 2: Supreme Court Access to Court Files

Cases
- R v Abdallah (No 3) [2015] NSWSC 121
- R v Brewer (No 1) [2015] NSWSC 1471
- John Fairfax Publications Pty Limited v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324