Citation: R v Pettiford [2023] NSWSC 1612
Court: Supreme Court of New South Wales
Date: 5 December 2023
Judge(s): Dhanji J
Background
An accused stood trial on one count of murder alleged to have occurred at Tweed Heads in November 2019, and one count of wounding with intent to murder alleged to have occurred at Shortland Correctional Centre in December 2019. The accused ran his case on the basis that he was not criminally responsible due to mental health impairment. The jury had retired to deliberate when the applications were heard.
Four media outlets applied for access to a range of trial exhibits, including police body-worn video of the accused's arrest, CCTV footage of his movements before and after the alleged killing, records of police interview, CCTV footage from inside the correctional facility, and documents including letters signed by the accused as "The Hand of Death." There was substantial overlap across the four applications.
The accused opposed release of certain material. The Department of Corrective Services made submissions opposing release of footage from inside the correctional facility. The Crown assisted but did not take a position on the outcome.
Legal Issues
- Whether media outlets should be granted access to trial exhibits while the jury was still deliberating
- How the principle of open justice should be balanced against the risk of prejudice to a pending murder trial in Queensland
- Whether the confronting nature of particular exhibits justified restricting their release
- Which, if any, of the exhibits sought should be made available to the media
Decision
Dhanji J confirmed that the principle of open justice is a fundamental axiom of the Australian legal system and that the media plays an important role in promoting public confidence in the administration of justice. However, his Honour emphasised that an open court does not automatically translate into an unrestricted right of access to exhibits or court records, citing the Northern Territory Supreme Court's observation that a court does not become "closed" simply because access to exhibits is refused.
The determination was not governed by any specific legislative provision. Section 314 of the Criminal Procedure Act 1986 (NSW), though headed "Media access to court documents," did not apply on the facts, a position accepted by all parties. The court exercised its discretion by reference to Practice Note SC Gen 2 and relevant principles, including the interest in facilitating fair and free reporting of court proceedings.
Two particular concerns weighed against releasing all the material sought. First, the accused had not been found guilty and may not be found guilty of either charge, including in circumstances where most applicants indicated they would not press their applications if verdicts of act proven but not criminally responsible were returned. Second, the accused faced an outstanding murder charge in Queensland arising from broadly similar circumstances, and release of highly prejudicial material carried a real risk of compromising that future trial.
His Honour drew a distinction between material showing the accused's movements and his arrest, which was suitable for release to augment fair reporting, and material with a particular confronting quality, including the records of police interview in which the accused admitted to both acts, referred to himself as "The Hand of Death," described homicidal urges and a code for selecting targets, and discussed the time for victims to die after arterial severance. That latter category of material was considered very likely to remain in the minds of potential jurors and was therefore withheld.
Orders Made
- Access granted to CCTV footage of the accused's movements before and after the alleged killing (exhibits J, R, and T), including the synopses provided as part of those exhibits
- Access granted to the body-worn video recording of the accused's arrest on the bus (exhibit L)
- Access refused for police interview records (exhibits N, CC, EE, GG, and BB)
- Access refused for CCTV footage from inside Shortland Correctional Centre (exhibit X)
- Access refused for documents shown to the accused during police interviews, including the "Hand of Death" letters (exhibits O and FF)
- Access refused for photographs of the Goulburn Prison cell pinboard (exhibit AA)
Key Takeaways
- Open justice is a fundamental principle in Australian courts, but that principle does not confer an automatic right on the media to access trial exhibits; the decision remains a discretionary one.
- A pending trial in another jurisdiction is a legitimate and significant factor in the exercise of the discretion to grant media access to exhibits, even where no suppression order or reporting restriction has been made.
- The confronting or prejudicial nature of exhibit content, assessed by its likely effect on potential jurors in future proceedings, can justify withholding that material while still permitting release of other exhibits from the same trial.
- Section 314 of the Criminal Procedure Act 1986 (NSW), despite its heading, does not govern media applications for access to exhibits tendered in criminal trials; the court's discretion is exercised under general principles and applicable practice notes.
- A verdict of not guilty has not been recorded before access is refused; the fact that the accused had not yet been convicted was treated as a relevant consideration in the balancing exercise.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 314
- Supreme Court Practice Note SC Gen 2: Access to Court Files
Cases
- John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101
- R v Dirani (No 33) [2019] NSWSC 288
- Registrar of the Supreme Court (NT) v Nationwide News Pty Ltd & Anor (2018) 41 NTLR 87; [2018] NTSC 22