Director of Public Prosecutions v Bracken (Ruling No 16)

[2014] VSC 96

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2013 0123

DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
PHILLIP PAUL BRACKEN	Defendant

---

JUDGE:	MAXWELL P
WHERE HELD:	Melbourne
DATE OF HEARING:	4-28 February 2014
DATE OF RULING:	28 February 2014
CASE MAY BE CITED AS:	DPP v Bracken (Ruling No 16)
MEDIUM NEUTRAL CITATION:	[2014] VSC 96

---

CRIMINAL LAW – Trial – Fair trial – Murder – Self-defence – Family violence – Acquittal – Publication of exhibits after verdict – CCTV footage showed accused shooting victim – Whether publication of footage would create misunderstanding of verdict – Whether possible for media to explain family violence defence – Public confidence in jury system – Risk of hostility to accused – Publication contrary to public interest – Release of exhibit refused – Crimes Act 1958 (Vic) s 9AH, Open Courts Act 2013 (Vic).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Rose SC with Ms T Saville	Mr C Hyland, Solicitor for Public Prosecutions
For the Defendant For Nine Network Australia Pty Ltd For The Age Company Ltd	Ms R Shann with Ms K Argiropoulos Mr JP Cashen Ms T Ryan	Galbally Rolfe Kelly Hazell Quill Lawyers Minter Ellison

---

HIS HONOUR:

1. In the course of the trial, a request was conveyed to me on behalf of various media organisations for access to certain exhibits in the trial.  Those were, respectively, exhibits 3 and 4, being photos of the deceased woman, Helen Curtis, and exhibit C, being the closed circuit TV footage (CCTV) of the events of 19 November 2012, which culminated in the death of Helen Curtis. 

1. At the time I indicated that I would not contemplate releasing the exhibits until after verdict.  At lunchtime today, after four and a half days’ deliberation, the jury found the accused man, Mr Bracken, not guilty on all charges.  The request for access remains on foot and it is necessary that I deal with it now as a matter of urgency. 

1. The defence have no objection to the release of Exhibit 3 and 4, the photographs, and I order that they be released. 

1. The request for access to the CCTV footage is supported by senior counsel for the Director of Public Prosecutions.  Submissions have been heard in support of the request by counsel acting, respectively, for Nine Network Australia Pty Ltd and The Age Company Ltd.  The request for access is opposed by counsel for Mr Bracken.  I have been much assisted by the submissions made by all counsel. 

1. In my opinion, the CCTV footage should not be released.  For reasons which follow, I consider that it would be contrary to the public interest for it to be released. 

1. I have borne steadily in mind the force of s 4 of the Open Courts Act 2013 (Vic), which establishes a statutory presumption in favour of disclosure of information in order ‘to strengthen and promote the principles of open justice and free communication of information.’

1. The conduct of this trial has exemplified the principles of open justice.  The hearing has been open to the public from beginning to end.  The transcript of evidence and of my directions to the jury has been, as I understand it, available to all media outlets on request. There have been regular press reports about what has gone on in the course of the trial.  That is exactly as it should be. 

1. The prosecutor, in his submissions on this application, said that it was in the public interest that the community should be aware of ‘what has gone on.’  As I have just noted, there has been no obstacle to community awareness at any stage of this trial.  That there has been only limited reporting of the trial, given what is said to be the public interest in knowing ‘what has gone on’, is a matter for others to consider. 

1. Such reportage as there has been demonstrates, in my opinion, that responsible journalists are capable, even in a complex case like this, of providing fair and accurate reporting.  The assumption on which I base this ruling is that any media organisation to which the CCTV footage was released would, in good faith, seek to use the CCTV footage as part of a fair and accurate report. 

1. The question, however, is not whether appropriate efforts would be made to report fairly.  I accept, unreservedly, that they would be.  The question I have to decide is whether it is now possible, following Mr Bracken's acquittal, for any news report which included the CCTV footage to present fairly what has taken place in the trial and what has informed the verdicts which the jury have delivered. 

1. In my opinion, notwithstanding the best efforts which I accept would be made by media outlets, that is simply not possible.  The impossibility is a function of two things in particular.  The first is the nature of the footage itself.  The relevant portion between the arrival of Mr Bracken and the death of Ms Curtis is brief and graphic.  Taken by itself, the footage provides no proper basis on which any viewer of it could make a judgment about whether the verdicts of acquittal were justified or not.  On the contrary, in my opinion, the showing of the footage would be calculated — by that I mean ‘would have the tendency’ — to invite serious questions about the verdicts. 

1. That risk is eloquently demonstrated, in my view, by the manner in which — quite properly — the prosecution case was presented to the jury.  The prosecutor told the jury that the footage was, in essence, the Crown case against Mr Bracken.  The footage demonstrated, it was said, that Mr Bracken was guilty of murdering Ms Curtis;  he had ‘executed her’.

1. The second — and related — point is that the footage gives no indication of the matters relied on by the defence.  The defence contended that what happened on that day, and why it happened, could only be understood by the jury after it heard detailed evidence about the history of the relationship between Mr Bracken and Ms Curtis, and about events which had taken place earlier on the day of Ms Curtis's death. 

1. Moreover, the defence submitted, the evidence about the history of the relationship, and its impact of Mr Bracken's state of mind on the day of the death, could only be understood by the jury in the light of expert evidence about the dynamics of relationships affected by family violence and about the cumulative effect of sustained abuse on a victim of family violence. I pause to point out that s 9AH of the Crimes Act 1958 (Vic) (‘the Crimes Act’) specifically makes evidence of that kind admissible in a case like the present, where family violence is alleged in connection with a defence of self-defence. I will refer again to those provisions in a moment.

1. The jury heard evidence of both those kinds.  First, there was evidence from friends, workmates and family on both sides — that is, on the Bracken side and the Curtis side — as to the history of their relationship.  They also heard expert evidence as to the general character and consequences of abusive relationships.  That evidence took many days.

1. Having heard that evidence and the respective submissions of the prosecution and the defence in final address, the jury have acquitted Mr Bracken.  By their verdicts, the jury have declared that the Crown failed to persuade them beyond reasonable doubt of Mr Bracken’s guilt of murder or defensive homicide or manslaughter. 

1. It was not in issue in this trial that Mr Bracken had caused Ms Curtis's death, nor that he had done so consciously and voluntarily.  The key issue for the jury, as I explained to them in some detail in my charge, was what the evidence showed about Mr Bracken's state of mind at the time he fired the fatal shot.  The body of evidence about family violence, both particular and general, was directly relevant — and in its entirety — to the jury's consideration of that question. 

1. Moreover, as the Crimes Act makes clear, the ordinary rules governing self-defence are altered in a case where family violence is alleged. Specifically, s 9AH(1) says (relevantly):

… for the purposes of murder, defensive homicide or manslaughter, in circumstances where family violence is alleged a person may believe, and may have reasonable grounds for believing, that his or her conduct is necessary—

(a)     to defend himself or herself or another person; …

even if—

(c)     he or she is responding to a harm that is not immediate; or

(d)    his or her response involves the use of force in excess of the force involved in the harm or threatened harm.

1. These subtleties about the legal framework had a direct bearing on the way in which this jury had to approach the defence of self-defence, but they would be impossible to convey in any report of which the CCTV footage formed part, in my opinion.

1. The jury performed its onerous responsibilities in this trial to the highest standard, as I told them before I discharged them.  The Victorian community is entitled to have the highest confidence in the quality of the work that juries do.  That is the invariable experience of trial judges in this Court and in the County Court, and it has certainly been my experience in this trial.  This was a trial of very great difficulty and, as I said to the jury, the community could not have asked more of them than they gave, in their conscientious discharge of their duty and their conscientious attention to the evidence and the submissions.

1. It would be inimical to the public interest for information to be disclosed if that disclosure carried a substantial risk of creating in the public mind a misunderstanding, or a misapprehension, of the task which the jury had to undertake, or of the basis upon which they were asked to consider the facts of the case. 

1. Because of the exceptional complexity of the family violence issues and the related legal issues about self-defence, I consider that release of the CCTV would carry a substantial risk of creating misunderstanding or misapprehension of that kind.  That constitutes, in my opinion, a real and substantial risk of prejudice to the proper administration of justice.  Given the very particular circumstances of this case, that risk cannot be prevented by any other means than by refusing this request.[1]

   [1]See Open Courts Act 2013 (Vic) s 18(1)(a).

1. A related risk concerns the implications for Mr Bracken of such a misunderstanding or misapprehension of the verdicts.  He has been prosecuted by the state and has been exposed to the full rigours of a jury trial.  Having been acquitted, he is entitled to return to the community and to be left alone. 

1. In my opinion, given the complexities I have already described, the graphic nature of the footage, and the risk of misapprehension or misunderstanding of the verdicts, there is an associated risk of unjustified hostility towards Mr Bracken.  His counsel informed me that they share that concern and that it extends to his parents.  Mr Bracken Snr gave evidence in the trial and was present on the day of the death.  In the circumstances of this case, that concern is, in my opinion, well-founded.

1. It was submitted on behalf of the media that it would be ‘a dangerous precedent’ for the court to withhold release of this material.  I am not persuaded by that submission.  This decision creates no precedent;  on the contrary, as I have endeavoured to explain, these are quite exceptional circumstances.  Not only is the case affected by the unusual complexity of family violence being alleged, and by the scope of the evidence which became relevant as a result, but we have the almost unique circumstance of there being real-time footage of the killing of the victim.  It must be doubted whether that collocation of circumstances is likely to repeat itself.

1. But, so far as this decision might be said to create a precedent, it is sufficient to say this.  My reasons are intended to demonstrate that the public interest has a number of dimensions, each of which needs to be considered in relation to an application of this kind.  For the reasons I have given, those dimensions of the public interest which count against disclosure clearly outweigh those favouring it.

- - -