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Supreme Court 14 December 2020

R v Camilleri

[2020] NSWSC 1945

Homicide
CRIMINAL LAW PROCEEDINGS AFTER CONVICTION MANSLAUGHTER VERDICT PUBLIC INTEREST TRIAL PROCEEDINGS NON

Citation: R v Camilleri [2020] NSWSC 1945
Court: Supreme Court of New South Wales
Date: 14 December 2020
Judge(s): Wilson J

Background

Following a high-profile murder trial, a jury returned a verdict of not guilty of murder but guilty of manslaughter on 10 December 2020. The proceedings generated significant public interest, reflected in multiple media applications for access to exhibits tendered during the trial.

Two pieces of footage were at issue. The first was body-worn camera footage recorded by a police officer on the night of the offence, which had already been the subject of a non-publication order made during the trial. The second was footage of the offender's interview with police in the early hours of the following morning, which had not been the subject of any such order, prompting media outlets to seek its release.

When the court proposed to release the interview footage, the offender applied for a non-publication order covering that material as well. Wilson J listed the matter for oral submissions so that the competing public interests could be properly assessed.

  • Whether a non-publication order should be made over footage of the offender's police interview under the Court Suppression and Non-Publication Act 2010 (NSW)
  • Whether the relevant grounds under s 8 of that Act, specifically s 8(1)(c) (protection of a person's safety) and s 8(1)(e) (public interest significantly outweighing open justice), were established
  • How to reconcile the public interest in open justice with the public interest in protecting a vulnerable offender in custody

Decision

Wilson J acknowledged the strong default position in favour of open justice under s 6 of the Act, noting that an individual's privacy or dignity interests have repeatedly been held by superior courts to be insufficient on their own to outweigh transparency in criminal proceedings. The COVID-19 restrictions, which had limited both public and media access to the courtroom during trial, heightened the court's concern that suppressing the footage would leave the public without any adequate record of the proceedings.

On the safety grounds under s 8(1)(c), the court accepted that publication of the footage, which showed the offender covered in blood with her hands in paper evidence bags, could plausibly compromise her physical safety in custody, for example if another inmate reacted adversely to the material. The court was less persuaded on psychological safety, finding that the evidentiary basis for inferring psychological harm was considerably more tenuous.

A practical resolution emerged during the hearing. Counsel for the offender tendered transcripts of both pieces of footage, which thereby became exhibits in the proceedings and part of the public record. This meant the content of what the offender said was available to the public and the media through the transcripts, even if the footage itself was suppressed. Wilson J found that this compromise satisfied both competing interests: the footage could be protected, while the public's interest in understanding the verdict and the nature of the proceedings could be met through access to the full written transcripts.

The court accordingly extended the non-publication order to cover the police interview footage of 21 July 2019, while making clear that the order applied to the footage only and did not extend to either transcript.

Orders Made

  • A non-publication order was made over the footage of the police interview between Detective Sergeant Gilbert and the offender in the early hours of 21 July 2019.
  • The transcripts of both the body-worn footage (Exhibit VD1) and the police interview (Exhibit VD2) were not subject to any non-publication order and were made available to any member of the public or media who sought access.

Key Takeaways

  • Under the Court Suppression and Non-Publication Act 2010 (NSW), a court may make a non-publication order to protect a person's physical safety under s 8(1)(c), even where no direct evidence of risk is before it, provided the inference of risk is reasonably available on the facts.
  • The primary obligation under s 6 of the Act is to safeguard open justice, and an individual's privacy or dignity interests alone will not ordinarily suffice to override that principle.
  • Where footage of a vulnerable offender in distressing circumstances is sought by media, a practical compromise can exist in making transcripts of that footage publicly available rather than suppressing the content entirely.
  • COVID-19 access restrictions were treated as a relevant contextual factor that increased the weight to be given to ensuring some form of public access to trial material, given that ordinary courtroom attendance had been curtailed.
  • Non-publication orders must be construed precisely: the orders in this case applied to footage only, leaving the corresponding transcripts fully accessible as part of the public record.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-Publication Act 2010 (NSW), ss 6, 7, 8(1)(c), 8(1)(e)

Cases cited: No cases were cited in the judgment.