Police v Phillip Charles Bugmy - [2011] NSWLC 28

Local Court

New South Wales

Medium Neutral Citation: Police v Phillip Charles Bugmy [2011] NSWLC 28
Hearing dates: 17, 19 & 26/08/2011
Decision date: 02 September 2011
Jurisdiction: Criminal
Before: Dunlevy LCM
Decision:
Application granted. The ABC may make a copy of Exhibit 1 of the substantive proceedings by any non-destructive means chosen by the ABC.

Catchwords: INTERLOCUTORY APPLICATION - application by news media organisation for access to exhibit in criminal proceeding - whether appropriate to grant leave to have access in the circumstances of the case - principle of open justice
Legislation Cited: Local Court Rules 2009
Cases Cited: Attorney-General v Guardian Newspapers Ltd (No 2) (1990) 1 AC 109
John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344
R v Xu (No 1) (2005) 152 A Crim R 17
R v Sam (No 5) [2009] NSWSC 543
R v Sam (No 16) [2009] NSWSC 544
Category: Interlocutory applications
Parties: Police
Phillip Charles Bugmy (the defendant)
Australian Broadcasting Corporation (the applicant)
Representation: Mr Doyle of Counsel for the applicant
Sgts Scanlan and Ridley for the Police
Mr Hearn and Ms Graham, solicitors for the defendant

File Number(s): 2011/55718

JUDGMENT

Introduction

The defendant to the substantive proceedings is charged with various alleged offences that are currently being heard in Wilcannia Local Court. That hearing has thus has been heard on 17 and 18 August 2011. The proceedings have been adjourned part heard to Wilcannia Local Court on 15 December 2011.

As part of the proceedings the Police have tendered a DVD that forms Exhibit 1 ('the DVD') and which shows the defendant being tasered by a police officer in an incident that is the subject of the proceedings. The prosecution case remains open, but the police officer who used the taser on the defendant has given evidence as to why he took this action. The appropriateness of the use of the taser has been challenged in cross-examination by the solicitor for the defendant. This issue is very much a live one between the parties and is an important aspect of the case.

The substantive proceedings have attracted some level of public interest and the Australian Broadcasting Corporation ('the ABC') are by this current application seeking permission to copy the DVD, with a view towards possibly showing the contents on television and the internet. The application has been brought in written form by Ms Roberts, a journalist employed by the Broken Hill studio of the ABC.

When the application was initially brought the ABC sought both access to the DVD as well as an order allowing it to make a copy. The application first came before Wilcannia Local Court on 17 August 2011 at which time I granted the ABC immediate viewing access to the DVD. I adjourned the application to copy the DVD to Broken Hill Local Court on 19 August 2011. At the time of the adjournment I indicated I would require the assistance of the parties in determining an issue as to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Phillip Charles Bugmy

Details

AGLC: Police v Phillip Charles Bugmy [2011] NSWLC 28
Case: [2011] NSWLC 28
Decision Date: 02 September 2011

CaseChat Overview and Summary

The matter before the court was an interlocutory application brought by a news media organisation seeking access to an exhibit in the substantive criminal proceeding against Phillip Charles Bugmy. The application was brought under the principle of open justice, which underpins the transparency and fairness of the legal system. The court was required to determine whether it was appropriate to grant leave for the news media organisation to have access to the exhibit in the circumstances of the case.

The court considered the principle of open justice and the need to balance it with the rights of the accused. The court recognised that the principle of open justice is fundamental to the administration of justice and that it promotes transparency, accountability, and public confidence in the legal system. However, the court also noted that the rights of the accused must be protected, particularly in cases where the evidence is sensitive or may prejudice the accused's right to a fair trial. The court held that the principle of open justice does not require the disclosure of all information in a criminal proceeding, but rather that the court must balance the principle against other competing interests, such as the rights of the accused.

After considering the arguments and evidence presented by both parties, the court granted the application. The court held that the principle of open justice outweighed the potential prejudice to the accused in this case. The court considered that the exhibit was not highly sensitive or prejudicial and that the news media organisation had a legitimate interest in reporting on the case. The court ordered that the news media organisation may make a copy of Exhibit 1 of the substantive proceedings by any non-destructive means chosen by the news media organisation.

The court's decision highlights the importance of balancing the principle of open justice with the rights of the accused. The court recognised that the principle of open justice is a fundamental principle of the legal system, but also that it must be balanced against other competing interests. The court's decision in this case provides guidance for future cases where a news media organisation seeks access to an exhibit in a criminal proceeding.

Orders

Orders of the court

Application granted. The ABC may make a copy of Exhibit 1 of the substantive proceedings by any non-destructive means chosen by the ABC.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Police v Phillip Charles Bugmy [2011] NSWLC 28
Hearing dates:	17, 19 & 26/08/2011
Decision date:	02 September 2011
Jurisdiction:	Criminal
Before:	Dunlevy LCM
Decision:	Application granted. The ABC may make a copy of Exhibit 1 of the substantive proceedings by any non-destructive means chosen by the ABC.
Catchwords:	INTERLOCUTORY APPLICATION - application by news media organisation for access to exhibit in criminal proceeding - whether appropriate to grant leave to have access in the circumstances of the case - principle of open justice
Legislation Cited:	Local Court Rules 2009
Cases Cited:	Attorney-General v Guardian Newspapers Ltd (No 2) (1990) 1 AC 109 John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 R v Xu (No 1) (2005) 152 A Crim R 17 R v Sam (No 5) [2009] NSWSC 543 R v Sam (No 16) [2009] NSWSC 544
Category:	Interlocutory applications
Parties:	Police Phillip Charles Bugmy (the defendant) Australian Broadcasting Corporation (the applicant)
Representation:	Mr Doyle of Counsel for the applicant Sgts Scanlan and Ridley for the Police Mr Hearn and Ms Graham, solicitors for the defendant
File Number(s):	2011/55718