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Supreme Court 19 May 2022

R v Dawson

[2022] NSWSC 620

Sexual offencesHomicide
CRIMINAL LAW MURDER TRIAL PROCEEDINGS HELD IN CAMERA

Citation: R v Dawson [2022] NSWSC 620
Court: Supreme Court of New South Wales
Date: 19 May 2022
Judge(s): Harrison J

Background

This decision arose during a murder trial with significant public interest. In the course of the trial, a witness referred to as "JC" gave evidence touching on matters potentially relevant to separate District Court proceedings the accused faced later that year. Harrison J directed that portions of JC's evidence be given in camera (meaning in a closed, non-public hearing) pursuant to s 291(3) of the Criminal Procedure Act 1986 (NSW).

A media representative subsequently applied under s 291C of the same Act for access to view or hear a record of that in camera evidence. That section permits a court to make arrangements allowing media representatives to access evidence given in closed proceedings, provided the representative is not physically present in the courtroom during those proceedings.

Earlier in the trial, Harrison J had already refused a broader application by both the Crown and the accused to suppress all publication of the proceedings, with reasons given in the related decision R v Dawson [2022] NSWSC 555. The present media access application was a narrower, discrete question arising out of that earlier context.

  • Whether it was in the interests of justice to grant a media representative access to view or hear a record of evidence given in camera in proceedings involving a prescribed sexual offence, under s 291C of the Criminal Procedure Act 1986 (NSW)
  • Whether the prospect of prejudice to pending District Court proceedings provided sufficient grounds to refuse such access
  • What weight, if any, should be given to the media representative's offer to delay publication until after the District Court proceedings concluded

Decision

Harrison J refused the application. The in camera evidence was potentially of direct relevance to the accused's pending District Court proceedings, which were to be heard by a jury. Permitting media access to that evidence carried a real risk of public attention being drawn to it before the jury trial, which his Honour considered unfair to the accused and productive of potentially irremediable prejudice.

The media representative offered to withhold publication until after the District Court proceedings concluded. Harrison J addressed this offer on two grounds. First, if there was no immediate commercial imperative to use the evidence, there was no meaningful interference with the principle of open justice in refusing access for the time being. Second, JC was likely to give the same or substantially similar evidence in the District Court proceedings in any event, at which point it would enter the public domain without restriction.

Taken together, those considerations meant that granting access to the in camera record had no significant or obvious utility. The interests of justice did not favour disclosure, and the application was refused.

Orders Made

  • The media representative's application to view or hear a record of JC's evidence given in camera was refused.

Key Takeaways

  • Under s 291C of the Criminal Procedure Act 1986 (NSW), a court retains a discretion to refuse media access to in camera evidence even where the statutory framework otherwise permits such arrangements to be made.
  • The existence of pending jury proceedings involving the same accused, and the risk of prejudice to those proceedings from premature publication, constituted sufficient grounds for refusing media access to in camera evidence.
  • A media representative's undertaking to delay publication does not automatically resolve the interests-of-justice question; where no immediate publication is proposed, the court found the open-justice concern to be correspondingly diminished.
  • Where the evidence in question is likely to be given again in subsequent proceedings and will then be publicly available, an order granting earlier access carries little practical utility and that factor weighs against making it.
  • Refusing a broader suppression order in related earlier proceedings does not foreclose a narrower in camera direction over specific evidence; the two applications are treated as legally distinct.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 291, 291C

Cases:
- R v Dawson [2022] NSWSC 555 (related earlier decision refusing broader suppression order)