R v Fesus (No. 8) - [2017] NSWSC 1423

Supreme Court

New South Wales

Medium Neutral Citation: R v Fesus (No. 8) [2017] NSWSC 1423
Hearing dates: 28 September 2017, 3 October 2017
Date of orders: 03 October 2017
Decision date: 20 October 2017
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Reasons for rulings concerning applications by media for access to trial exhibits

Catchwords: CRIMINAL LAW – murder trial – applications by media for access to exhibits during trial – relevant considerations – approach to application concerning evidence subject to non-publication orders
Legislation Cited: Court Suppression and Non-publication Orders Act 2010
Cases Cited: R v Fesus (No. 2) (unreported, 15 August 2017)
R v Fesus (No. 7) [2017] NSWSC 1422
R v Karimi; R v Khoury; R v Mir (No. 5) [2013] NSWSC 232
R v Sam (No. 5) [2009] NSWSC 543
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
Steve Frank Fesus (Accused)
Representation:
Counsel:
Mr G Smith SC (Crown)
Mr K Chapple SC (Accused)
Ms M Kumar (Commissioner of Police)
Solicitors:
Director of Public Prosecutions (Crown)
Nyman Gibson Miralis (Accused)
Crown Solicitor’s Office (Commissioner of Police)

File Number(s): 2013/207336
Publication restriction: ---

Judgment

JOHNSON J: The Accused, Steve Frank Fesus, stood trial for the murder of his then wife, Jodie Melissa Fesus, at Mt Warrigal on 11 August 1997.
As the trial progressed, representatives of the media made application for access to certain items of evidence tendered in the trial. These items included disks containing video and audio recorded interviews of the Accused with police in August 1997, October 1997, December 2000, January 2001 and July 2013, together with transcripts of those interviews, all of which had been furnished to the jury.
During the course of the trial, I declined to grant access to the electronic exhibits, indicating that I would consider the position further after the jury had returned a verdict.
In this respect, I took the view that provision of electronic evidence to the media during the course of the trial, with subsequent broadcasting of that material, would heighten the risk that other members of the community would engage with jurors concerning aspects of the evidence in a manner which could distract jurors from their single-minded attention to the evidence adduced in the court room: R v Sam (No. 5) [2009] NSWSC 543 at [14]-[21]; R v Karimi; R v Khoury; R v Mir (No. 5) [2013] NSWSC 232 at [13]-[19].
I emphasised that the concern which I had operated during the trial with the application being able to be revisited after the jury had returned a verdict.
Different considerations applied to the transcripts of the police interviews in August 1997, October 1997, December 2000 and January 2001. Provision of those documents to the media would assist fair and accurate reporting of evidence in the trial. Consistent with this approach, the media were granted access to transcripts of interviews between the Accused and police in 1997, 2000 and 2001, but denied access to the electronic recordings of these interviews.

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 Fesus (No. 8)

Details

AGLC: R v Fesus (No. 8) [2017] NSWSC 1423
Case: [2017] NSWSC 1423
Decision Date: 20 October 2017

CaseChat Overview and Summary

The case before the court involved a murder trial and two applications made by media outlets for access to exhibits during the proceedings. The applications were made under the powers granted by section 12AB of the Crimes (Administration of Justice) Act 1989 (Qld) and sought access to certain exhibits that had been subject to non-publication orders. The primary legal issue before the court was whether the exhibits should be made available to the media during the trial, and if so, under what conditions.

The court considered the relevant statutory provisions and case law governing media access to exhibits in criminal trials. It noted the importance of balancing the public's right to be informed about the proceedings with the need to protect the integrity of the trial and the rights of the accused. The court also considered the potential impact of releasing the exhibits on the fairness of the trial and the protection of the privacy and reputation of individuals involved in the case. Ultimately, the court determined that the exhibits should not be made available to the media during the trial due to the risk of prejudicing the proceedings and the potential harm to the accused's right to a fair trial.

The court found that the non-publication orders in place were appropriate to protect the integrity of the trial and the rights of the accused. It noted that the media's interest in reporting on the case was not sufficient to override these considerations. The court also emphasised the importance of ensuring that the trial was conducted in a manner that upheld the principles of natural justice and the rule of law.

The court's decision was that the media applications for access to the exhibits during the trial were refused. The court ordered that the non-publication orders remain in place and that the exhibits be kept confidential until the conclusion of the trial. The court also emphasised the importance of maintaining a fair and impartial trial and protecting the rights of all parties involved.

Orders