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Supreme Court 14 September 2020

R v Wang (No 1)

[2020] NSWSC 1255

Homicide
CRIME SENTENCING CCTV FOOTAGE

Citation: R v Wang (No 1) [2020] NSWSC 1255
Court: Supreme Court of New South Wales
Date: 14 September 2020
Judge: Beech-Jones J

Background

The accused had pleaded guilty to murder and was before the Supreme Court for sentencing. Agreed facts had been tendered, and those facts made reference to CCTV footage capturing the final eleven minutes of the deceased's life. The footage was described as graphic and capable of causing significant distress.

The Crown sought to tender the CCTV footage and have it played in open court. Senior Counsel for the offender objected, arguing that the footage added nothing beyond what was already contained in the agreed facts. In the alternative, the defence submitted the court should view the footage in private, or that a suppression or non-publication order should be made under s 7 of the Court Suppression and Non-Publication Orders Act 2010.

  • Whether the CCTV footage was admissible as evidence in sentencing proceedings, notwithstanding the existence of agreed facts covering the same events
  • Whether the footage, if admitted, should be played in open court or viewed privately by the judge
  • Whether any suppression or non-publication order should be made in relation to the footage
  • Whether media access to the footage was a question to be addressed at this stage

Decision

Beech-Jones J identified three distinct steps requiring separate analysis: admission of the material, whether it should be played in open court, and whether third parties (such as the media) should be granted access to it.

On the first step, the court admitted the footage. Relying on R v Mulligan [2016] NSWCCA 47, the court found no basis to reject the tender. There were genuine issues concerning the accused's demeanour, level of control, and degree of intoxication during the critical period. More broadly, agreed facts describing a crime do not render CCTV footage superfluous: where footage exists, viewing it better informs the court of the full nature and circumstances of the offending.

On the second step, Beech-Jones J held that the open justice principle required the footage to be played in open court. A strong and powerful reason is needed to depart from that principle. The court identified a public interest in the community being reassured that courts have viewed and grappled with the gravity of serious criminal conduct. While the footage might cause distress to those present, that concern yields to open justice, particularly where a warning is given and those present may choose to leave.

On the third step, the court treated media access as an entirely separate question, distinct from whether proceedings are conducted in open court. Beech-Jones J indicated that any such application would be heard in open court, would not proceed until the victim's family had been consulted, and would not be considered until the judge had viewed the material personally. No further orders on media access were made at that stage.

Orders Made

  • The CCTV footage was admitted into evidence.
  • The footage was to be played in open court.
  • A warning was to be given before the footage was played, with those present free to absent themselves.
  • Any future application for media access to the footage would be heard in open court and would not be determined until the victim's family had been consulted and the judge had personally viewed the material.

Key Takeaways

  • Agreed facts describing a crime do not, of themselves, provide a sufficient basis to exclude available CCTV footage from sentencing proceedings; the court held that viewing such footage better informs the sentencing exercise as to the full circumstances of the offending.
  • Consistent with R v Mulligan [2016] NSWCCA 47, CCTV footage tendered in sentencing proceedings is properly admissible where it goes to real issues, including demeanour, control, and intoxication.
  • The principle of open justice ordinarily requires that material admitted in sentencing proceedings be played in open court; a strong and powerful reason is required before a court will depart from that principle.
  • Media access to graphic material is a wholly distinct question from whether proceedings are conducted in open court; the potential for footage to be replayed on broadcast news or preserved indefinitely on social media platforms warrants separate and careful scrutiny of any such application.
  • Before determining any media access application, the court indicated the victim's family should be consulted and the judge should have personally viewed the material.

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

Cases
- R v Mulligan [2016] NSWCCA 47