R v Camilleri

[2020] NSWSC 1945

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Camilleri [2020] NSWSC 1945
Hearing dates:	14 December 2020
Date of orders:	14 December 2020
Decision date:	14 December 2020
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1) Pursuant to s 7 of the Courts Suppression and Non-Publication Act 2010 (NSW), on the grounds given in s 8(1)(c) and (e), order that there be no publication of Exhibit J from the proceedings R v Jessica Camilleri. For clarity, it is noted that this order does not prevent publication of Ex’s. VD1 and VD2, being the transcripts of Ex. C (to which a separate Non-Publication Order applies) and Ex. J respectively.
Catchwords:	CRIMINAL LAW – proceedings after conviction – manslaughter verdict – public interest – trial proceedings – non-publication orders - media application – exhibits on voir dire – media – public interest in access to material – public interest in protecting vulnerable offender
Legislation Cited:	Court Suppression and Non-Publication Act 2010 (NSW)
Category:	Principal judgment
Parties:	Regina (Crown) Jessica Camilleri (Offender)
Representation:	Counsel: T McCarthy (Crown) N Steel (Offender) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2019/00225633
Publication restriction:	Nil

EX TEMPORE Judgment

1. HER HONOUR: Following the trial of Jessica Camilleri on an indictment charging her with the murder of her mother, a verdict of not guilty of murder but guilty of manslaughter was returned by the jury last Thursday 10 December 2020.

2. Both during the course of the trial and subsequent to it, there has been a significant amount of public interest in the trial proceedings expressed in one way by the large number of applications to the Court by various media outlets for access to exhibits.

3. During the course of proceedings, a non-publication order was made with respect to Exhibit C, that being footage taken from a body worn recording device utilised by Senior Constable D'Agostino to record his conversation with the offender on the night of 20 July 2019. Miss Camilleri made an application for that material to be the subject of a non-publication order because of the manner in which she is shown and the possibility that depicting her in that way in the public via media outlets could lead to some detriment to her. That proposition was accepted and the Court made an appropriate non-publication order. That non-publication order did not apply to and nor was it sought to be applied to the footage of the offender in an interview with police officers later into the early morning of 21 July 2019.

4. Applications were received for access to that exhibit. There being no non-publication order, it had been proposed to release the material. The parties were advised and given an opportunity to be heard should they have wished to be heard and, as a consequence of that, a further application was received from the offender for that material also to be the subject of a non-publication order.

5. I listed the matter for hearing today so that I could have the benefit of submissions from counsel as to where the public interest in this matter lay. During the course of the hearing, counsel for the offender has tendered transcripts of the body worn footage, Exhibit C, and of the interview with police of 21 July 2019, the transcript having been formally marked for identification 12 at trial. Now being exhibits in the Court proceedings, those transcripts are a matter of public record and they are available to be released to any media outlet that would seek it, subject to the Court having made any non-publication order which applied to the content.

6. The relevant law is the Court Suppression and Non-Publication Act 2010 (NSW). Section 7 provides a power to the Court to make a suppression or non-publication order on grounds provided by s 8 where what is sought is the prohibition or restriction of the publication of information that comprises evidence or information about evidence given in proceedings before the Court.

7. Initially, the offender identified s 8(1)(e) as the relevant ground for making a non-publication order. That provides that a Court may make a suppression order or a non-publication order on one or more of the enumerated grounds, with (1)(e) being that it is otherwise necessary in the public interest for the order to be made and that the public interest significantly outweighs the public interest in open justice.

8. In support of the application, counsel for the offender referred to the public interest in protecting vulnerable individuals. The offender, as a young woman with a number of psychological and psychiatric disorders, could well be regarded as a vulnerable individual and it was submitted that it is not in the public interest to release footage which depicts her not just speaking about the events of 20 July 2019 but doing so when she presents as covered in blood and with her hands protected by paper evidence bags applied by police.

9. When I queried with Mr Steel in what way the protection of the interests of an individual might be regarded as a public interest, Mr Steel referred to the need to protect a vulnerable individual as being an interest that the public shares, but further pointed to s 8(1)(c) as another basis upon which it is necessary to make an order. That provides that an order is necessary to protect the safety of any person. What is said to be at jeopardy is both the physical and psychological safety of the offender if the footage were to be released.

10. Although there is no specific evidence before the Court to go to either of those, I accept that it is possible for the Court to reason that Miss Camilleri's physical safety could be compromised by the publication of this material if, for example, another inmate at the facility in which she is held were to see the footage, take a negative view of the offender because of what is shown in the footage, and thereafter physically target her. It is not unknown for such things to happen, and although the Court has no information as to the conditions of custody in which the offender is held, I think it's perhaps available as an inference that her physical safety could be compromised.

11. As to her psychological safety, I think the evidence is very thin for a psychological risk. It was argued that there is the likelihood or at least possibility of some psychological harm to the offender if the footage were to be released. Again, I suppose it's possible that one could draw that as an inference, although I think that the basis upon which that inference could be drawn is much more tenuous.

12. In making any non-publication order, the Court must always be mindful of s 6 of the Act which provides that a Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. Ordinarily, the public interest in open justice is a sufficient rationale for the release of any exhibit which has become, by virtue of having been exhibited, part of the public record.

13. An individual's sense of dignity, their privacy, those things can be readily compromised or adversely affected by the release of exhibits in a criminal trial, but as an ordinary rule, that feature has been held repeatedly in the superior Courts to be insufficient to outweigh the public interest in the administration of the criminal justice system being entirely open, so that persons who have not been able to be present physically in Court can still be in a position to follow the proceedings before a Court and to maintain the public's interest in those proceedings being completely transparent.

14. To some extent, the COVID-19 restrictions have had an impact upon the capacity of the public to follow proceedings. It is no longer possible for any member of the public to simply attend a Court and be able to sit and view the proceedings.

15. In the present matter, for example, there was a restriction on the number of people who could be present in Court at any one time and, as a matter of common humanity, the Court made it plain that family members of the deceased and the (then) accused would be given priority in access to the Court. That restricted access for both members of the public and access for the press. Audio visual links were made available to members of the press who sought them during the course of the trial, and that is one means of overcoming the limitations upon access to the courtrooms, but it is not an ideal means of overcoming the difficulties with access, not least because of the imperfections in the audio visual systems. The Court's experience is that those systems drop out on a relatively regular basis or that sound quality varies from system to system, and I have no doubt that at any given time during the course of the trial one or more media outlets may have had their access to the proceedings limited or restricted by virtue of the nature of the technology.

16. Those things gave rise in my mind to a real issue as to which public interest ought to take priority in determining the non-publication order in circumstances where no transcript of the material that had been sought to be released was part of the evidence and therefore part of the public record which the Court could make available. In those circumstances, I had a real concern that the public interest in making available to scrutiny Court proceedings would outweigh the interests of the public in protecting a vulnerable person with disabilities or an offender in custody who could be the subject of physical risk.

17. The solution has come about by virtue of the transcripts of the most frequently sought after material being tendered as part of the proceedings today. The transcript of the body worn footage is now available as Exhibit voir dire 1 (Ex. VD1). The transcript of the police interview is now available as Exhibit voir dire 2 (Ex. VD2). Those documents are now part of the public record and as long as they are not subject to any non-publication order, they can be released to persons who wish to view them. By the tender of those transcripts, it seems to me that both interests can now be met. If the Court makes a non-publication order over the footage of the police interview, there already being such an order in relation to Exhibit C, the body worn footage, Miss Camilleri's interests can be protected, and also the public interests in a vulnerable woman being protected can also be met; but also the public interest in understanding the jury's verdict and the nature of the proceedings against the offender can be met by members of the public or members of the press having access to the content of the footage, by access to the transcript.

18. That means that members of the press can have access to a full record of what was said, a full and accurate record of the offender's account of what occurred, albeit one that she no longer maintains as entirely truthful, and in that sense the needs of open justice can be properly met.

19. With that compromise in mind, I propose to make a non-publication order for the footage of the interview between Detective Sergeant Gilbert and the offender in the early hours of the morning of 21 July 2019, but I note that that order applies to footage only. It does not capture the transcript of that exhibit and, indeed, nor does the earlier order capture the transcript of the body worn footage. Both of those exhibits can now be made available to any member of the public or the media who seeks access to them.

20. An order is made in those terms.

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Amendments

15 April 2021 - Typographical error corrected at paragraph [1]

Decision last updated: 15 April 2021