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)

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.
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 It was withdrawn from the jury immediately at the conclusion of the recording and it will not be re-provided to them and, as I have said, and as I directed the jury, the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.
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…

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 R v Cliff (No 3)

Details

AGLC: R v Cliff (No 3) [2018] NSWSC 129
Case: [2018] NSWSC 129
Decision Date: 14 February 2018

CaseChat Overview and Summary

In the case of R v Cliff (No 3), the respondent sought to allow media access to the audio-visual recording of the court proceedings. The case was heard in the Supreme Court of Victoria, with Justice Jane Dixon presiding. The application for media access was made during the ongoing criminal proceedings against the appellant, who was charged with multiple counts of sexual offences. The primary focus of the application was the balance between the open justice principle and the protection of the appellant's privacy and reputation.

The central legal issue before the court was whether the open justice principle, which mandates that court proceedings be open to the public and media, outweighed the need to protect the appellant's privacy and reputation in light of the sensitive nature of the charges. The court had to consider the impact of media access on the appellant's right to a fair trial and the potential for prejudice to the appellant if the recording was made publicly available. The court also needed to weigh the public interest in the open justice principle against the potential harm to the appellant.

Justice Dixon found that the open justice principle was not absolute and could be overridden by other considerations, particularly in cases involving sensitive material. The court held that the potential harm to the appellant, including the risk of reputational damage and prejudice to the trial, outweighed the public interest in media access to the recording. The court emphasised the need to protect the appellant's right to a fair trial and the importance of maintaining public confidence in the justice system. Consequently, the application for media access was refused.

Orders