Citation: R v Brian Lee (No.3) [2019] NSWSC 589
Court: Supreme Court of New South Wales
Date: 20 May 2019
Judge(s): Garling J
Background
The accused was found not guilty of murder on the grounds of mental illness in related proceedings (R v Brian Lee (No.2) [2019] NSWSC 586). The trial proceeded before a judge alone, without a jury, on the basis of agreed facts and uncontested expert psychiatric evidence. No oral witnesses were called.
Following the verdict, several media organisations applied for access to exhibits tendered in court. Those exhibits included a statement of agreed facts, CCTV footage (including footage of the stabbing of the deceased), and video recordings of the accused being interviewed by police at the station after the events in question.
The Crown and counsel for the accused both opposed aspects of the media applications. No media representative appeared orally to support the applications. Garling J treated the appropriate vehicle for resolving the competing interests as a consideration of whether suppression or non-publication orders should be made under the Court Suppression and Non-Publication Orders Act 2010.
Legal Issues
- Whether suppression or non-publication orders should be made over CCTV footage depicting the stabbing of the deceased
- Whether the video recordings of the accused's police interview (ERISP) should be made available to the media
- How to balance the open justice principle against other public interest considerations in the context of sensitive exhibits
Decision
Issue 1: CCTV footage of the stabbing
Garling J concluded there was no public interest of any kind in releasing footage showing the stabbing itself (at [10]). The footage was described as obviously sensitive and gruesome, and not essential to understanding the proceedings. The judge also expressed concern that, once copies were made available without a suppression order, the material could be used inappropriately even if responsible media organisations handled it carefully (at [10]). A suppression order was made over the specific segments of the CCTV compilation depicting the stabbing and the deceased's collapse.
Issue 2: Other CCTV footage of the deceased
The court declined to suppress footage of the deceased more broadly, though it noted an expectation that such footage would not be broadcast unless absolutely necessary to explain the sequence of events leading to trial (at [11]).
Issue 3: Police interview footage (ERISP)
Garling J initially leaned toward releasing the police interview footage because it had formed part of the evidentiary foundation for the forensic psychiatrists' opinions (at [12]). However, the judge accepted the arguments advanced by counsel for the accused. The court found the interview would likely have been inadmissible in a jury trial had objection been taken, because the accused had sought legal advice before participating and the interviewing officer recognised that wish before any relevant statement was made (at [7], [12]). The accused had waived reliance on inadmissibility only because of the agreed-facts procedure adopted in this trial. In those circumstances, releasing footage showing the accused in a state of ongoing mental illness was not in the public interest (at [13]). The ERISP footage was withheld from media access.
Orders Made
- The following material was made available to those entitled to access the court file: Exhibit A (excluding the discs entitled "Allegation Video Footage and ERISP"), Exhibit B, Exhibit 1, and the written submissions of both parties.
- A suppression and non-publication order was made under s 7 of the Court Suppression and Non-Publication Orders Act 2010 over the CCTV footage of the accused stabbing the deceased, being specific time segments of the "CCTV Compilation" disc (between 1 minute 30 seconds and 2 minutes 7 seconds, and between 2 minutes 42 seconds and 2 minutes 59 seconds), on the ground that the public interest in suppression significantly outweighs the public interest in open justice.
- Liberty to apply was granted to any interested party.
Key Takeaways
- Under s 6 of the Court Suppression and Non-Publication Orders Act 2010, a court must treat the public interest in open justice as a primary objective, but that interest can be outweighed where the material is sufficiently sensitive or its release carries a meaningful risk of inappropriate use (at [9]-[10]).
- Graphic footage of a fatal stabbing was held to warrant suppression where it was not necessary for public understanding of the proceedings and carried a risk of misuse if made generally available (at [10]).
- The admissibility status that material would have carried in a conventional jury trial remained relevant to whether releasing it to the media served the public interest, even where the accused had waived inadmissibility objections for the purpose of an agreed-facts procedure (at [12]-[13]).
- A court approaching media access applications for exhibits should frame the question as whether a suppression or non-publication order is warranted under the Act, rather than treating release as discretionary in the absence of such an order (at [8]).
- The accused's mental state at the time of a police interview, and the circumstances in which that interview was conducted, can constitute a public interest consideration weighing against release of that footage, separate from any formal inadmissibility ruling (at [13]).
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-Publication Orders Act 2010
Cases
- R v Brian Lee (No.2) [2019] NSWSC 586