Citation: R v Kirkman (No 2) [2019] NSWSC 1861
Court: Supreme Court of New South Wales
Date: 18 December 2019
Judge: Button J
Background
This decision arose from a judge-alone murder trial in which a documentary procedure was adopted, meaning evidence was placed before the court in written form rather than through oral testimony in the witness box. Following the trial, media organisations applied for access to some of the exhibits tendered during the proceedings.
The case involved particularly sensitive circumstances. The deceased's family had deliberately shielded themselves from the precise details of what occurred, to the point of leaving the courtroom during the judge's oral summaries of the written evidence. The deceased was also killed in the presence of a five-month-old baby, a child who would carry the consequences of those events throughout his life.
The Crown prosecutor raised concerns about certain exhibits containing real or apparently real addresses of individuals. No legal representative for the media appeared before the court at the time the application was considered.
Legal Issues
- Whether media organisations should be granted access to exhibits tendered in a judge-alone murder trial
- How the principle of open justice should be balanced against the potential for permanent, freely accessible online publication of highly distressing material
- What discretionary considerations are relevant when a court exercises its power to restrict access to trial exhibits
Decision
Button J confirmed that a broad discretion exists to grant or refuse media access to exhibits, drawing on the earlier decision in R v Wran [2016] NSWSC 1026. His Honour acknowledged the genuine public interest in open justice and noted that the documentary procedure adopted in the trial made it particularly important to consider what material the public could access.
Despite that general principle, Button J identified several compelling reasons to refuse access. Crime scene photographs and a police sketch plan of the scene were immediately excluded from any possibility of release. Exhibits containing what appeared to be real addresses of individuals also raised clear concerns.
His Honour gave particular weight to the permanence of online publication. He noted that, in an earlier era, media coverage faded quickly from public view. In the current environment, material published online remains indefinitely accessible. The knowledge that horrific details of this case would effectively be a permanent and easily retrievable presence on the internet outweighed any basis for granting exhibit access.
Button J also noted that the media remained entirely free to report all that had occurred in open court, including his detailed oral summaries of the documentary evidence. The refusal was framed as applying "at this stage at least," and the court left open the possibility that the media could renew the application in open court with legal representation, requiring urgent responses from both the Crown and the accused.
Orders Made
• Access to exhibits in the murder trial is refused at this stage
• Crime scene photos are not to be made available
• Sketch plan created by police of the scene is not to be made available
• Media are permitted to report in detail all that has occurred in open court, including detailed summaries of the evidence
• The decision remains open to re-agitation in open court by media representatives with proper legal representation
Key Takeaways
- A broad judicial discretion exists to grant or refuse media access to exhibits in criminal proceedings, as confirmed by the Supreme Court applying R v Wran [2016] NSWSC 1026.
- The permanence of online publication is a relevant and weighty consideration when balancing open justice against potential harm. Button J found that indefinite internet accessibility of deeply distressing material meaningfully distinguishes the current media environment from historical print and broadcast coverage.
- Refusing access to exhibits does not itself restrict open justice where the court has delivered detailed oral summaries of the evidence in open court, leaving the media free to report those summaries.
- The interests of individuals who may be identified by information within exhibits, and the long-term welfare of a child present at the time of the offence, were treated as legitimate factors in the discretionary exercise.
- A refusal of media access to exhibits need not be final. Button J expressly left open the possibility of the application being renewed in open court with proper legal representation.
Legislation and Cases Referenced
Cases:
- R v Wran [2016] NSWSC 1026
Legislation:
- No specific legislation was cited in the judgment.