R v Cliff (No 3)

[2018] NSWSC 129

Supreme Court

New South Wales

Medium Neutral Citation:	R v Cliff (No 3) [2018] NSWSC 129
Hearing dates:	14 February 2018
Date of orders:	14 February 2018
Decision date:	14 February 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Application for media access to MFI 6 and MFI 7 refused.
Catchwords:	CRIMINAL LAW – application for media access - audio-visual recording - open justice principle - application for access refused
Legislation Cited:	Evidence Act 1995 (Cth), s 66
Cases Cited:	Esso Australia Resources Limited v Plowman [1995] 183 CLR 10; Gately v The Queen (2007) 232 CLR 208; [2005] HCA 55; John Fairfax Publications Pty Ltd & Ors v Ryde Local Court (2005) 62 NSWLR [2005] NSWCA 101; R v NZ (2005) 62 NSWLR 628 [2005] NSWCCA 278; Smith v Harris [1996] 2 VR 335
Category:	Procedural and other rulings
Parties:	Regina (Crown) Bryce Cliff (Accused)
Representation:	Counsel: M Pincott (Crown) E Wilson SC (Accused)   Solicitor: M McFarlane (Office Director of Public Prosecutions) (Crown) A Van der Velde (Matouk Joyner Lawyers) (Accused)
File Number(s):	2016/175505

EX TEMPORE Judgment (revised)

1. I am dealing with an application made by media organisations for access to material used in open court during the course of the trial. Implicit in the application is a right to publish the material or edit excerpts from it. The material consists of audio-visually taped evidence of a Crown witness and a transcript of that recording provided to the jury so they could better follow the recording.

2. In accordance with the invariable practice of the criminal courts in this State, approved by the Court of Criminal Appeal in R v NZ (2005) 62 NSWLR 628 [2005] NSWCCA 278, neither the recording nor the transcript were marked as exhibits. Equally in accordance with that decision and also with the practice approved by the High Court of Australia in Gately v The Queen (2007) 232 CLR 208; [2005] HCA 55 (“Gately”), the jury itself will not be permitted unsupervised access to the recording in the jury room when they retire to deliberate on their verdict. The transcript of the recording, as I have said, in accordance with the invariable practice of courts in this State, was provided purely as a guide or an aid to following the recording. It was withdrawn from the jury immediately at the conclusion of the recording and it will not be re-provided to them and, as I have said, and as I directed the jury, the transcript itself forms no part of the evidence in the trial.

3. I should also record that the trial commenced on 5 February 2018, some eight sitting days ago. The first two days were taken up with evidential rulings in advance of the empanelment of the jury. Since the jury has been empanelled and the evidence in the trial has properly commenced there have been 22 witnesses and 15 exhibits. There has been no previous request for access.

Material the subject of the application

4. The material the subject of the application relates to the evidence of a Mr Wade Garland. It may be that his evidence will be considered by the jury in due course to be of some significance. At the same time, however, he is one of a large number of lay witnesses who have given pertinent evidence about the conduct and behaviour of the accused in the immediate aftermath of the events said to constitute the murder of Mr Cleghorn. MFI 6, which is the audio-visual recording, was made on 21 June 2016. It is what is referred to by police as a ‘walk-through’ recording. I was informed by counsel that it had been edited to some extent, and it was this edited version of the walk-through interview with a duration of 58 minutes that was shown to the jury.

5. By agreement between the learned Crown Prosecutor and learned Senior Counsel for the defence the videotaped recording substantially stands as the evidence-in-chief of Mr Garland. But for the agreement of counsel, evidence in that form in my opinion probably would not have been admissible and would have been excluded under the provisions of s 66 of the Evidence Act 1995 (Cth). However that may be, that was the form in which counsel agreed that this evidence should be put before to the jury.

6. The content, form and purpose of questioning by detectives investigating serious crime is very different from the permissible form, content and purpose of forensic examination of witnesses in court in accordance with the rules of evidence. Moreover the answers of the interviewee are not subject to the same control by counsel and the court as normally occurs when witnesses are called viva voce. Detectives often ask questions in a form which would have been impermissible from counsel. That is not to say their approach is not legitimate for the purpose they are pursuing. Likewise the answers of the witness Mr Garland are given in an impermissible form. They involve, necessarily, speculation and the impermissible expression of opinions and other conclusionary statements.

7. Normally, as is well known, lay witnesses giving evidence in court are restricted. It is only permissible for them to give evidence about matters in issue according to what they have heard, seen or otherwise perceived about the matters in question. There are some exceptions, of course, which I need not elaborate upon. Moreover Mr Garland was cross-examined in some detail about the reliability of the account he gave to the investigating officers. Substantially the cross-examination was based upon the content of an earlier record of interview that he had given on 8 June 2016 when he was a person of interest, or perhaps a suspect, in relation to the demise of young Mr Cleghorn.

8. The jury’s impression of the evidence of Mr Garland as a whole, of course, is a matter for them. Their impression may be very different from mine. However, it seemed to me that the cross-examination laid the foundation for the jury to give serious consideration to the reliability of all of the detail of the account given by Mr Garland in MFI 6. It may be that they will be impressed by the fact that there were material inconsistencies between what he said to the police on 8 June 2016 and the account he gave on 21 July 2016. That is not a matter for me, of course, and, jumping ahead for the moment, the question of whether or not the jury find Mr Garland to be a reliable witness in the end is not a matter that necessarily touches upon the question of whether I should accede to the application made for access to the material.

The application for media access

9. The application has been made by a number of different media organisations and I should say that it is clear that the events leading to Mr Cleghorn’s death, to put it as neutrally as I possibly can for present purposes, were considered shocking by the local community and for that reason have generated a great deal of interest in this community of the largest inland city in Australia since they occurred. There is no doubt that the trial has generated some public interest. This is signified by the daily presence of a variety of journalists from different organisations and also by members of the public attending to observe the proceedings; members of the public extending beyond the friends and relatives of the persons involved.

10. The application for access and publication was, by leave granted by me, ably advanced by two young journalists, Ms Rochelle Brown of Fairfax Media and Mr Andrew Salinas of WIN News. Both informed me that they had the authority of responsible superiors to make the application. There was no objection to me granting them leave to advance the application in court. I also received submissions from counsel for the parties.

11. I hope it does no injustice to the care and persuasiveness with which the arguments of Ms Brown and Mr Salinas were put to summarise them by saying that they very substantially relied upon an invocation of the open justice principle which, of course, is fundamental to the conduct of the business of our courts and to the administration of justice in this State, indeed, throughout Australia.

Applicable principles

12. These matters arise frequently in modern times and have often been the subject of high authority binding upon this Court. In John Fairfax Publications Pty Ltd & Ors v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 (“Ryde Local Court”) Spigelman CJ said this at [51]:

“...the principle of open justice does not confer a freestanding right. The claimants sought access to documents, relevantly, pursuant to the court’s implied power to control its own processes or equivalent power. They carried the burden of establishing that the order they sought ought to be made.”

His Honour had earlier said (at [29]):

“Neither the [media] Claimants, nor the public at large, have a right of access to court documents. The “principle of open justice” is a principle, it is 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”.

His Honour also acknowledged (at [32]) that the use of material in court:

“…will often be determinative when making a decision to give the media access to documents so deployed”.

However, he added:

“That is a long way from saying that the court has no power to deny access”.

13. So far as principles governing the exercise of the power to grant access as an instance of the power of the court to control its own processes, his Honour said (at [60]):

“The principle of open justice is a fundamental axiom of the Australian legal system. It informs and energises numerous areas of the law. (Citations omitted.) It is appropriate for the court to have regard to the principle when determining applications for access under any express or implied power to grant access. In this regard it is, however, pertinent to recognise that the principle has purposes related to the operation of the legal system, its purposes do not extend to encompass issues of freedom of speech and freedom of the press.”

The purpose of the principle of open justice was well stated by Jeremy Bentham, who said: “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial’”. (Citations omitted.)

The learned Chief Justice went on to cite many other similarly important expositions of the high principle involved.

14. It follows from these statements of authority that the fact that the material has been used in open court provides the applicants with a starting point for the success of their application. However, it does not inevitably follow that that factor alone should be regarded as decisive. I acknowledge that some statements of high authority have been to the effect that once a matter is led in open court “it may well be appropriate to speak of a right to publish a report of court proceedings”; see Esso Australia Resources Limited v Plowman [1995] 183 CLR 10 at [43] by Toohey J, albeit in dissent.

15. On the other hand in Ryde Local Court at [75] Spigelman CJ referred with approval to what had been said by Byrne J in the Victorian Supreme Court in Smith v Harris [1996] 2 VR 335 at 341-342. Byrne J said:

“[T]he policy which demands that the judicial process be open to public scrutiny does not demand that the subject matter of that process be available except in so far as this is necessary for the public to scrutinise the process itself”.

Byrne J went on to say that the question may be:

“What good purpose would then be served for (the media) or the public if some reported were permitted to broadcast these matters for the gratification of a curious public? Public interest is not to be equated with public curiosity (Citation omitted).”

Moreover, Spigelman CJ said, at [76]:

“It’s always salutary to bear in mind the commercial interest the media has in maximising its access to private information about individuals”.

16. However, we are not concerned here with private information about individuals, rather we are concerned with fair and accurate reporting of a criminal trial for the most serious offence of murder being conducted in open court.

Other relevant considerations

17. I think it is important to bear in mind that this trial has been conducted in open court. No order has been made for any suppression of any of the evidence led in open court, nor would any such order too readily be made given the importance of the fundamental principle of open justice to the conduct of criminal proceedings. Sometimes, however, I acknowledge, exceptions are appropriate.

18. I have made no order for any part of the proceedings to be conducted in camera. MFI 6 was played in open court and in the presence of the public and the media. The media, of course, have the skill, and the right, to make a record of the evidence as it is given and to publish that evidence in a fair and accurate way, even if only in summary form, in newspapers or broadcast it on radio and TV. That, I understand, has occurred during this trial. There has been no restraint on the media publishing the evidence of Mr Garland in common with the evidence of all witnesses in that fashion. There is no evidence before me as to whether that has been done.

Application opposed by counsel

19. I should say that the learned Crown Prosecutor and Mr Wilson of Senior Counsel for the accused both oppose the order sought invoking the principles discussed in R v NZ and Gately, to which I have already referred.

Decision

20. It seems to me that as the emphasis is not so much on the principle of open justice in this application but rather upon the power of the court to control its own processes, that those principles do have work to do in the decision I have to make. It is fundamental that the jury is the constitutional body called together to form part of the court for the purpose of determining the guilt or innocence of citizens charged with serious criminal offences. Because of this I have been attached to the argument, I must say, with respect, of counsel for the prosecution that the general public, and hence the media, can have no greater right of access to the material the subject of the application than the jury charged with the responsibility of making the important decision in this case.

21. I repeat that authorities binding upon me which have given rise to the invariable practice to which I have referred restrict the access of the jury to material of this type. They will have no further access at all to MFI 7 and nor will they have unsupervised access to the evidence of Mr Garland so far as it is contained in MFI 6. The proper practice to be followed if the jury wish to be reminded of the content of MFI 6, in accordance with the decision of the High Court in Gately, is to play it in court in their presence, the presence of counsel and, of course, in the presence of the accused. And by reading excerpts from the transcript of the cross-examination of Mr Garland by Mr Wilson so that the jury, at all times, will have a balanced view of the evidence of Mr Garland to enable them to evaluate it.

22. For that reason, I propose to refuse the application.

23. However, I should record, in the interests of transparency, that notwithstanding the persuasive and earnest way in which the argument was put to me by the journalists involved, I have an uneasy feeling that access to the audio-visual recording is sought for the purpose of satisfying public curiosity rather than public interest. I have referred previously to the limitations of time and space available to journalists. That is understandable, and I make no criticism. However, it is well-known, I think, that television craves vision, and even print media these days rely heavily upon their online publications which also includes access to video material.

24. It seems to me that the possibility of the public having unrestricted access to only one part of the evidence in the trial, and that part being the evidence-in-chief only of one witness, is inconsistent with the strictures under which the jury will work.

25. I acknowledge that Mr Salinas, in answer to a question of mine, agreed that it would be appropriate that if any part of the video were played that there would be material from the cross-examination also presented, and I have given that matter earnest consideration, but, for the reasons I have fully rehearsed, it does not sway me the other way.

26. I refuse the application for access.

**********

Decision last updated: 28 February 2018