R v Christos Tsekas (No. 2)

[2018] NSWDC 188

District Court

New South Wales

Medium Neutral Citation:	R v Christos Tsekas (No. 2) [2018] NSWDC 188
Hearing dates:	9-10 July 2018
Decision date:	13 July 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Access granted to transcript of ERISP interview and some crime scene photographs. For Orders see [18].
Catchwords:	Application by non-parties for access to material held by the court
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	R v Abdallah (No. 3) [2015] NSWSC 121 R v Brewer (No. 1) [2015] NSWSC 1471 R v Elomar (No. 3) [2008] NSWSC 1443
Category:	Consequential orders (other than Costs)
Parties:	Director of Public Prosecutions (Crown) Christos Tsekas (Accused)
Representation:	Counsel: A Hawkins (Crown) S Fraser (Accused)
File Number(s):	16/286965
Publication restriction:	Nil

Judgment ON APPLICATION by a non-party for access to material held by the court

1. On 9 and 10 July 2018, a special hearing was held pursuant to the Mental Health (Forensic Provisions) Act 1990 in respect of a charge pursuant to s 27 of the Crimes Act 1900, that on 25 September 2016 the accused did wound Paul Raymond Jay with intent to murder the said Paul Raymond Jay. An alternative Count was brought against the accused pursuant to s 33(1)(a) of the Crimes Act 1900 of wound with intent to cause grievous bodily harm.

2. During the hearing, three applications were received from the same media organisation, being Channel 7 News Sydney. The first two applications were brought by a journalist, Mr Evan Batten. The first sought access to the ERISP interview of the accused. The second sought access to both the ERISP interview and “still photos of the knife, plus any other photos”.

3. The third application was brought by Ms Leonie Ryan. It sought access to first, the Police Facts Sheet (in case of a guilty plea), and secondly, the Police interview and transcript. As there was no plea of guilty, no Police Facts Sheet existed. The police interview and transcript comprised the accused’s ERISP interview DVD (Ex A.9), and the transcript of that interview (Ex B).

4. The three applications therefore relate to the ERISP interview of the accused, the transcript of that interview and photographs of the knife, plus any other photographs.

5. On Friday 13 July 2018, I delivered my verdict on the special hearing of not guilty by reason of mental illness, in respect of Count 1. No verdict was required on the Alternative Count 2.

6. At the conclusion of the special hearing, I sought submissions from the parties in respect of the applications for access brought by the non-parties referred to above. Learned counsel for the accused opposed access being given to the media organisation to the DVD of the accused’s ERISP interview, however, access to the transcript of that interview was not opposed. In respect of the photographs, those of the victim contained in the brief, were very graphic and counsel opposed access to those photographs. The balance of photographs fell into two categories. First, the photographs of the meat cleaver or knife, and secondly, the crime scene photographs, which included photographs of the rooms of the victim and the accused, the reception area and clothing worn by the victim.

7. Counsel referred the court to a decision of the New South Wales Court of Appeal in John Fairfax Publications Pty Limited & 2 Ors v Ryde Local Court & 3 Ors [2005] NSWCA 101. In that case, Spigelman CJ (with whom Mason P and Beasley JA, as her Honour then was, agreed) held that open justice is a principle rather than a right, and there is no common law right to obtain access to a document filed in proceedings and held as part of a court record. At [29] his Honour said:

“Neither the claimants nor the public at large, have a right of access to court documents. The “principle of open justice” is a principle, is it not a freestanding right. It does not create some form of freedom of information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access. However, it remains a principle and not a right.”

8. His Honour went on to hold, at [73] and [74], that where access could cause harm to individuals, or where publication given to allegations may be “without protections that are normally provided and afforded against defamatory statements”, these were relevant considerations for the court to take into account.

9. The court was also referred to R v Brewer (No. 1) [2015] NSWSC 1471, a murder trial in which the Crown relied on CCTV footage for a period up to and including the death of the deceased. Counsel for the accused in that case made no submissions in relation to the release of that footage, rather, an objection was made to the release of footage of the accused’s arrest, based on instructions that the accused was concerned at the embarrassment that he may suffer if that footage was released. Bellew J referred to the 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. The application was refused on the basis of the interests of the deceased’s family, who were coming to grips with the loss of a young woman who died as a result of violence. The ensuing publicity could only be expected to aggravate their grief and distress. Bellew J went on to hold that the likelihood was that the grief and distress 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. He therefore refused access to that part of the footage.

10. The Crown informed the court that the Office of the Director of Public Prosecutions did not consent to the media having access to the material it sought. Otherwise, the Crown referred to s 314 of the Criminal Procedure Act 1986, and supported the submission made by counsel for the accused in respect of the ERISP interview. It was conceded that the transcript (Ex B) should be made available.

11. In respect of the photographs that formed part of the brief, the Crown submitted that those contained in Ex A.10 displayed the victim, who was of a vulnerable age and whose identity would need to be protected.

12. The Crown submitted that photographs of the accused behind Tab A.11 were not in the same category, and photographs of the crime scene in Exs A13 and A.13A were in a category such that the Crown did not wish to be heard.

13. In reply, counsel for the accused acknowledged that s 314 of the Criminal Procedure Act may have some bearing on the matter. However, Whealy J, in R v Elomar (No. 3) [2008] NSWSC 1443, held that the power of the Supreme Court was not limited to the terms of that section.

Determination

14. The accused has been held to be not guilty by reason of mental illness to Count 1 on the Indictment. On the evening of 25 September 2016, a short time after the incident took place, the accused was interviewed by police through an interpreter at the St George Police Station. He was accompanied in that interview by his daughter as a support person. He was clearly delusional, as evidenced by a number of the answers given by him, set out in my judgment on verdict. In my view, it would be detrimental to both his interests and welfare, and that of his supportive family, if access was given to the media to that DVD.

15. In the interest of open justice, however, I am satisfied that the applicants should have access to the transcript of the accused’s interview, and that the Registrar may make available, a copy of Ex B in the proceedings.

16. I find that it is not in the public interest to grant access to the media to photographs taken of the victim and his injuries following this incident. It would be a gross invasion of his privacy, and would no doubt be detrimental to his well-being if such photographs were aired publicly. Nor is it in the public interest for the photographs of the accused’s injuries to be released.

17. I am, however, satisfied that it is in the public interest for photographs of the meat cleaver or knife, together with the photographs of the crime scene referred to above, should be the subject of access. I therefore will direct the Registrar to grant access to the applicants to Exs A.13 and A.13A.

Orders

18. I make the following orders:

1. I direct that the Registrar of the District Court grant access to the applicants, Mr Evan Batten and Ms Leonie Ryan, to the following:

1. Copy of Exhibit B, the transcript of the accused’s ERISP interview.

2. Copy of Exhibit A.13, photographs, including photographs of the knife.

3. Copies of Exhibit A.13A, being photographs of the crime scene and clothing.

**********

Decision last updated: 13 July 2018