This trial commenced before me earlier today, an order having been previously made that it proceed without a jury. The accused has pleaded not guilty to a charge that on 13 March 2014, at Pendle Hill in the State of New South Wales, he murdered Visakesvaran Velupillai ("the deceased").
Much of the Crown case is not in dispute and has been dealt with by the agreed tender of a number of statements. I am informed that leaving aside any expert psychiatric evidence which might be adduced, there will only be one other witness called in the Crown case. The focus of the proceedings today has been upon the Crown's playing of excerpts of CCTV footage of the period up to and including the death of the deceased.
I indicated to the Crown earlier today that I anticipated, given the nature and extent of that footage, that there would be an application for access to it by one or more media outlets. I have since been informed by the Court's media officer that in fact three commercial television stations have sought access to the footage. Whilst the information made available to me has not identified, with complete precision, the particular footage to which access has been sought, it is not unreasonable to anticipate that the focus is upon two particular areas.
The first concerns what footage of what is, on the Crown case, an altercation between the accused and the deceased in an arcade near the deceased's business premises. In summary, that footage shows (inter alia) the deceased in possession of a broom, one inference being that he may have sought to use it as a weapon. A physical altercation follows between the deceased and the accused during which both disappear from view. The deceased is then seen to come back into view. On the Crown case the cause of death was a stab wound to the heart. The deceased's movements when he comes back into view are consistent with a fatal injury having been inflicted upon him a short time before. Putting it bluntly, that footage depicts the final moments of the deceased's life.
The second part of the footage in which I anticipate media outlets may be interested concerns the arrest of the accused. In the course of his arrest the accused gave his account of what had occurred. In doing so, he referred to the deceased in quite disparaging terms.
The Crown has opposed the release of that part of the footage which shows the altercation and its immediate aftermath. The Crown's objection is based principally upon the likely distress that public dissemination of the footage would cause members of the deceased's immediate and extended family. Although not specifically stated, I infer that the Crown had in mind not only publication in the media, but the possibility of wider dissemination of the footage via the internet. I am told by the Crown, and I accept, that the deceased had young children. It is not hard to imagine the stress, anguish and grief which the deceased's death has already caused his family. I am satisfied that such emotions would be exacerbated, to a not insubstantial degree, if footage of the final moments of the deceased's life were to be made public.
Mr Skinner of counsel, who appears for the accused, has made no submissions in relation to the release of the footage leading up to the deceased's death. However he has objected to the release of the footage of the accused's arrest. Mr Skinner made it clear that such opposition was based on his instructions that the accused was concerned at the embarrassment that he may suffer if that footage was released. The Crown did not oppose such release.
Section 314 of the Criminal Procedure Act 1986 provides for media access to Court documents including the indictment, witness statements, transcripts as well as the police brief of evidence. There is no suggestion by either party that the CCTV footage to which access has been sought falls outside the provisions of s 314(2).
There is also a Practice Note (No. SC Gen 2) which governs access to material of this nature. It provides that such access is restricted to parties to the proceedings, except with the leave of the Court. Para (7) of the Practice Note provides that access will normally be granted to non-parties in respect of (inter alia) material admitted into evidence, unless the judge dealing with the application considers that the material, or portions of it, should be kept confidential.
In the present case, the CCTV footage has been played in open court. Access to the footage should, in terms of the Practice Note, be granted unless I come to the conclusion that it should be kept confidential.
I have been referred to a decision of Adamson J in R v Abdallah (No 3) [2015] NSWSC 121 in which application was made by a media outlet for access to CCTV footage, and to an audio recording of a 000 call. Her Honour refused that application. It is evident from the judgment that her Honour had the benefit of considered submissions from counsel for the applicant in that case. In the present case, none of the media organisations who seek access to the footage have been represented.
It is apparent that in refusing the application in Abdallah Adamson J had regard to the fact that the proceedings were before a jury. In particular, her Honour made reference (at [17]) to the necessity to balance the interests of open justice against the need for circumspection with respect to the release of information. Her Honour also made reference to the associated need to protect the administration of justice.
Her Honour observed that judges who make decisions alone in civil trials are thought to be capable of putting out of their mind extraneous matters, and of suspending judgment until the time for decision arrives. However, her Honour also observed that press coverage and commentary may influence members of the public who may be called upon to be jurors, and may give rise to pressure being placed on those who are jurors, notwithstanding the safeguards built into the system to prevent this from occurring.
It is evident that the circumstances in [12] and [13] above played a part in her Honour coming to the conclusion that the application should be refused. The present proceedings before me are not a trial by a jury. It follows that at least part of the factual basis of her Honour's decision is distinguishable.
However, her Honour also made the following relevant observation (at [24]):
"I have also weighed the interests of the deceased's family to which, as it happens the accused also belongs, as she and the deceased were cousins. The difficulty of coming to terms with the loss of a 21 year old woman who died as a result of violence cannot be overestimated. The publicity that can be expected to be given to moving images of her last hours of life could not but aggravate their grief and distress."
In the present case there is no suggestion that the accused and the deceased belong to the same family. However in my view, the difficulty to which her Honour referred also arises in the present case, and is no less important. In my view, the likelihood is that the grief and distress obviously felt by the members of the accused's family would be significantly aggravated if images of the last moments of the deceased's life were to be broadcast to the public at large.
For those reasons I refuse the application for access to that part of the CCTV footage which depicts the altercation between the deceased and the accused in the arcade, and which also depicts the last moments of the deceased's life in the way in which I have described it.
The considerations which lead me to refuse access to that part of the footage do not apply to the footage of the accused's arrest. In my view, given that the trial is not before a jury, the accused would suffer no prejudice if that footage were made available. I accept that the accused may feel some embarrassment as a consequence of some of the things he said when he was arrested. However in the circumstances of the present case that does not, in my view, justify refusing an application for access to the footage. The principles of open justice weigh in favour of that application being granted.
Accordingly, I grant the application for access to the footage of the accused's arrest.
[2]
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Decision last updated: 07 October 2015