Citation: R v Patterson (No 2) [2024] NSWSC 395
Court: Supreme Court of New South Wales
Date: 10 April 2024
Judge(s): Dhanji J
Background
The accused was on trial before a jury on a charge of murder, alleged to have been committed at Deniliquin in November 2021. During the course of the trial, two media outlets applied for access to trial exhibits: a representative from the ABC sought access to exhibits A, B, C and D, while a representative from the Deniliquin Pastoral Times sought access to the indictment and the opening statements of counsel.
The applications arose in a trial that was accessible to media both physically and via an electronic link. Neither applicant sought to make oral submissions beyond their written applications.
Legal Issues
- Whether the media had a right to, or should be granted, access to trial exhibits during an ongoing jury trial
- Whether access to opening statements and the indictment could or should be provided
- How the principle of open justice applies when weighed against the risk of interference with jury deliberation
- Whether the Court of Criminal Appeal's approach in Fenech v Nationwide News Pty Ltd applied to jury trials
Decision
Dhanji J began by confirming that the principle of open justice is a fundamental axiom of the Australian legal system and must be considered in any application of this kind. However, his Honour observed that the principle was already being honoured in this case: the courtroom was open, and media outlets had full access to the proceedings in person and online. A refusal to grant access to exhibits does not close the court or prevent reporting; it affects only the method of reporting.
His Honour distinguished the present application from the situation in Fenech v Nationwide News Pty Ltd, where the material before the court in a bail hearing had not been read onto the record, meaning that access to exhibits was necessary to understand the basis of the court's decision. In a jury trial, all evidence relevant to the jury is heard openly, so the media and the jury are in the same position as observers of the evidence.
The central concern in this case was the potential effect on jury integrity. His Honour reasoned that providing video or audio-visual exhibits to the media would likely prompt public discussion, creating a risk that members of the public, knowing a juror's involvement, would raise what they had seen with that juror. This had the capacity to interfere with a juror's ability to compartmentalise the evidence. On that basis, access to exhibits B and D (which contained video or audio-visual footage) was refused.
Exhibits A and C did not raise the same concerns and access was granted. His Honour also indicated, without making final orders, that he would be inclined to grant access to exhibits E and 1 if applied for, but not to exhibit F, noting that any further application would need to be determined on its merits.
On the Deniliquin Pastoral Times application, access to the indictment was granted without difficulty. The request for opening statements was refused because they are not exhibits and no mechanism existed to provide them, although his Honour noted that nothing prevented the media from reporting on what had been said in open court.
Orders Made
- Access granted to Exhibit A and Exhibit C.
- Access to all other exhibits refused.
Key Takeaways
- Open justice does not automatically entitle media to reproduce trial exhibits; it guarantees access to proceedings and the ability to report on them, not the means by which that reporting is carried out.
- The Supreme Court drew a clear distinction between bail hearings (where exhibits may be the only record of material before the court) and jury trials (where all evidence is heard openly), limiting the reach of Fenech v Nationwide News Pty Ltd to contexts where exhibit access is necessary to understand the court's decision.
- Jury integrity operates as a legitimate countervailing consideration: where providing exhibits to the media would likely generate public discussion that could reach sitting jurors, that risk justifies restricting access to those exhibits.
- No specific legislative provision governs media access to exhibits in criminal trials; the determination is discretionary and guided by relevant principles, including open justice and the facilitation of fair reporting, as well as the Supreme Court's Practice Note SC Gen 2 on access to court files.
- Section 314 of the Criminal Procedure Act 1986 (NSW), despite its heading "Media Access to Court Documents", does not apply to applications for access to trial exhibits, consistent with the approach taken in R v Dirani (No 33).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 314
- Supreme Court Practice Note SC Gen 2 (Access to Court Files)
Cases
- Fenech v Nationwide News Pty Ltd [2022] NSWCCA 235
- 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 and Anor [2018] 41 NTLR 87; [2018] NTSC 22