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Supreme Court 25 May 2018

R v Katherine Abdallah (No 7)

[2018] NSWSC 752

Homicide
CRIMINAL PROCEDURE SUPPRESSION ORDER USE OF CCTV FOOTAGE BY MEDIA OUTLET CCTV IN PRIVATE RESIDENCE INTERESTS OF FAMILY OF THE DECEASED INTERESTS OF OPEN JUSTICE

Citation: R v Katherine Abdallah (No 7) [2018] NSWSC 752
Court: Supreme Court of New South Wales
Date: 25 May 2018
Judge(s): Lonergan J

Background

The accused had been convicted of manslaughter following a re-trial in November 2017 and was sentenced on 22 May 2018. The proceedings involved CCTV footage from a private residence showing a physical altercation between the offender and the deceased in the ten minutes leading up to a fatal stabbing, as well as audio recordings of two triple-0 calls made around the time of the incident.

Access to this material had been sought by media organisations during the original 2015 trial. Adamson J refused that application, finding that releasing the footage risked encouraging prurient voyeurism, sensationalising the images, and causing serious distress to the deceased's family. Access was also declined informally during the 2017 re-trial on the same basis.

On the evening of the sentencing, a television network broadcast edited excerpts of what appeared to be a copy of that CCTV footage. The source of the copy was not established, though the court was informed that NSW Police, the Director of Public Prosecutions, and the Supreme Court were not the source. The network declined to identify how it had obtained the material.

  • Whether a suppression or non-publication order should be made under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) over the CCTV footage and triple-0 audio recordings, notwithstanding that the criminal proceedings had concluded
  • Whether the public interest in protecting the deceased's family from further grief and distress outweighed the public interest in open justice
  • Whether the court had power to make such an order after the conclusion of proceedings

Decision

Lonergan J found that the reasoning of Adamson J in the 2015 refusal decision remained fully applicable and described it as "highly persuasive." Two considerations from that earlier judgment were given particular ongoing weight: the footage had been taken in a private residence without the knowledge or consent of all those depicted, and its wider publication risked causing serious additional grief and distress to the family of the deceased.

Her Honour noted that, had the court been aware during the re-trial that copies of the material were in the possession of any media organisation or member of the public, a non-publication order would have been made at that point. The broadcast by the television network without any application to the court was characterised as contrary to what a responsible media organisation would be expected to do, given the obviously sensitive nature of the material.

Lonergan J was satisfied that it was necessary in the public interest to make a non-publication order, and that this interest significantly outweighed the public interest in open justice. The relevant public interest was identified specifically as protecting the family of the deceased from further distress caused by the display of footage depicting the final moments of her life.

The court also noted the power under s 9(3) of the Court Suppression and Non-publication Orders Act 2010 to make such an order after proceedings have concluded. Given the urgency arising from the recent broadcast and its proximity to sentencing, Lonergan J proceeded without requiring a formal application, evidence, or submissions, and ordered that the suppression remain in place until further order of the Court.

Orders Made

  • An order under s 7 of the Court Suppression and Non-publication Orders Act 2010 prohibiting the publication, broadcast, streaming, or display of any moving or still images copied from or comprising the CCTV footage showing the altercation and its aftermath between 5.50pm and 6.30pm on 9 February 2013.
  • An order under s 7 of the Court Suppression and Non-publication Orders Act 2010 prohibiting the publication, broadcast, or transmission of any audio recording or copy, or any part, of the triple-0 call tendered in evidence and played in open court in the trials of February 2015 and November 2017.
  • Both orders to remain in place until further order of the Court.

Key Takeaways

  • Under s 9(3) of the Court Suppression and Non-publication Orders Act 2010, a court may make a suppression or non-publication order after criminal proceedings have concluded, not only during them.
  • The Supreme Court held that the interests of a deceased victim's family in being protected from further grief and distress can constitute a sufficient public interest to justify a suppression order, capable of outweighing the public interest in open justice.
  • CCTV footage obtained without the knowledge of those depicted, and originally shown in open court only because of the interests of open justice in a criminal trial, does not thereby become material that media organisations are entitled to publish or broadcast freely.
  • A prior judicial refusal to grant media access to trial exhibits does not automatically generate a formal non-publication order, but Lonergan J made clear that such a refusal reflects the same underlying considerations that would inform one.
  • Sufficient urgency can justify a court proceeding to make a suppression order without formal application, evidence, or submissions, particularly where the material is of an obviously sensitive character and is causing immediate distress to identified persons.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 9

Cases:
- R v Abdallah (No 3) [2015] NSWSC 121 (Adamson J)
- R v Abdallah (No 6) [2018] NSWSC 729 (Lonergan J)