R v Brian Lee (No.3)
[2019] NSWSC 589
•20 May 2019
Supreme Court
New South Wales
Medium Neutral Citation: R v Brian Lee (No.3) [2019] NSWSC 589 Hearing dates: 20 May 2019 Date of orders: 20 May 2019 Decision date: 20 May 2019 Jurisdiction: Common Law - Criminal Before: Garling J Decision: 1. Order, subject to Order 2, that the following material is to be made available for access to those otherwise entitled to access the Court file:
(a) Exh A, but not including the discs entitled “Allegation Video Footage and ERISP”;
(b) Exh B;
(c) Exh 1;
(d) Written submissions of the Crown Prosecutor and counsel for the Accused.
2. Order pursuant to s7 of the Court Suppression and Non-publication Orders Act 2010, that the information specified below which is contained within Exh A, be suppressed and not published on the ground that it is necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.
Specified Information:
The CCTV of the Accused stabbing the deceased, Mr Klaus Petr, being the footage on the disc entitled “CCTV Compilation” and occurring between 1 minute 30 seconds and 2 minutes 7 seconds, and between 2 minutes 42 seconds and 2 minutes 59 seconds as that timing is displayed on the CCTV footage.
3. Grant any interested party liberty to apply with respect to these orders.Catchwords: CRIMINAL TRIAL – media access – application to access CCTV footage and video of the accused interview with police – open justice principle Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 Cases Cited: R v Brian Lee (No.2) [2019] NSWSC 586 Texts Cited: Not Applicable Category: Principal judgment Parties: Regina (Crown)
Brian Lee (Accused)Representation: Counsel:
Solicitors:
A Robertson (Crown)
N Steel (Accused)
Director of Public Prosecutions (Crown)
Sydney Criminal Defence Lawyers (Accused)
File Number(s): 2018/00013154 Publication restriction: Not Applicable
EX TEMPORE Judgment (T.13)
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In this case, the Court has found the Accused not guilty of the murder of Klaus Petr on the grounds of mental illness: R v Brian Lee (No.2) [2019] NSWSC 586.
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The trial was conducted before a judge sitting without a jury. There was an agreement as to the facts of the case. There was no challenge by either party to the expert opinions of two forensic psychiatrists. No witnesses were called to give oral evidence.
Application for Access to Exhibits
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Applications have been made by a number of media organisations for access to the Statement of Agreed facts, the CCTV footage attached to that Statement (which includes some footage of the stabbing of the late Mr Petr) and videos of the Accused being interviewed at the police station.
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No representative of the media sought to be heard orally in support of these applications.
Submissions of the Crown
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The Crown objected to part of the CCTV footage being made available. The part objected to includes a view (from two separate cameras) of the stabbing of the deceased by the Accused, the movements by the deceased immediately after that stabbing and his eventual collapse near the Hurstville Train Station. The Crown drew attention to the obvious sensitivity of that material and submitted that there was no public interest in the broadcast of such graphic and sensitive material. Counsel for the Accused joined in with that submission.
Submissions of the Accused
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Counsel for the Accused submitted that there was no public interest in releasing footage of the Accused being interviewed at the police station. This submission was made relying on the fact that whilst the Accused was at the police station (immediately after the events in question), he was obviously mentally ill and still suffering from, at least, the aftermath of the psychoses which had affected his conduct earlier that morning. Counsel noted that the transcripts of the interviews are contained within Exh A.
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Further, counsel for the Accused submitted that had the proceedings been dealt with in another way, with a contest as to what matters ought be admissible in a trial, objection would have successfully been taken to the content of the ERISP being admitted in proceedings. The Court's attention was drawn to the fact that the Accused sought to obtain legal advice before engaging in the ERISP and that at a time before any relevant statement was made by him, the interviewing police officer recognised that the Accused did not wish to participate in any ERISP, or answer any questions, before obtaining legal advice. The Accused submitted that in those circumstances, the Crown would not have been entitled to lead that material if objection had been taken.
Discernment
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In the absence of any suppression or non-publication order being made under the Court Suppression and Non-Publication Orders Act 2010 ("the Act"), an application for access to exhibits tendered in Court would ordinarily, and as a matter of routine, be granted. The appropriate approach to the application for access and the submissions in opposition to access, in the circumstances here, is for the Court to consider what, if any, suppression or non-publication order ought to be made.
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Section 6 of the Act requires that a court must, in deciding whether to make a suppression or non-publication order, take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. I keep that primary objective firmly in mind in deciding these applications.
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I have concluded that there is no public interest of any kind in making available footage of the stabbing of the deceased by the Accused. That footage is obviously sensitive. It is gruesome and is not essential to be viewed in order to understand the proceedings before the Court. Whilst I have every confidence that responsible media organisations would deal with that footage in an appropriate way, I am naturally concerned that, if copies of it become otherwise available in the absence of a suppression or non-publication order, there is a risk that it might be used inappropriately. That is also not in the public interest.
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I am not persuaded that footage of the deceased falls into that same category which means it is necessary to suppress it, but I do expect that it would not be shown unless absolutely necessary to enable the unfolding of the events leading up to this trial.
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I have been more troubled by the video footage of the Accused responding to police questions. Initially, I was inclined not to allow the footage to be released. Upon further reflection, because it formed a part of the evidence necessary for the findings and opinions of the expert witnesses, I leant towards making it available. However, I think the arguments put forward by counsel for the Accused have particular merit. This material would not have gone before any Court were it a jury trial. In my view, it would have been, if challenged, inadmissible.
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In those circumstances and given that the Accused, entirely appropriately and properly having regard to his plea, has waived his reliance upon the inadmissibility of that material, I do not see why his being shown in a state of continuing mental illness is in the public interest.
Orders
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I will make the following orders:
1. Order, subject to Order 2, that the following material is to be made available for access to those otherwise entitled to access the Court file:
(a) Exh A, but not including the discs entitled “Allegation Video Footage and ERISP”;
(b) Exh B;
(c) Exh 1;
(d) Written submissions of the Crown Prosecutor and counsel for the Accused.
2. Order pursuant to s7 of the Court Suppression and Non-publication Orders Act 2010, that the information specified below which is contained within Exh A, be suppressed and not published on the ground that it is necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.
Specified Information:
The CCTV of the Accused stabbing the deceased, Mr Klaus Petr, being the footage on the disc entitled “CCTV Compilation” and occurring between 1 minute 30 seconds and 2 minutes 7 seconds, and between 2 minutes 42 seconds and 2 minutes 59 seconds as that timing is displayed on the CCTV footage.
3. Grant any interested party liberty to apply with respect to these orders.
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Decision last updated: 21 May 2019
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