R v Katherine Abdallah (No 7)

[2018] NSWSC 752

Supreme Court

New South Wales

Medium Neutral Citation:	R v Katherine Abdallah (No 7) [2018] NSWSC 752
Hearing dates:	On the papers
Date of orders:	23 May 2018
Decision date:	25 May 2018
Jurisdiction:	Common Law - Criminal
Before:	Lonergan J
Decision:	(1) Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, prohibiting the publication, broadcast, streaming or display of any moving or still images copied from or comprising CCTV footage that show the altercation and aftermath or any part of it between Katherine Abdallah and Suzie Sarkis between the hours of 5.50pm and 6.30pm on 9 February 2013; (2) Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 prohibiting the publication, broadcast or transmission of any of an audio recording or copy of an audio recording or any part of it of the Triple-0 call tendered in evidence and played in open court in the trial by jury of Katherine Abdallah in February 2015 and again in November 2017.
Catchwords:	CRIMINAL PROCEDURE – suppression order – use of CCTV footage by media outlet – CCTV in private residence – interests of family of the deceased – interests of open justice – where application for access to CCTV footage previously refused
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) ss 7, 9
Cases Cited:	R v Abdallah (No 3) [2015] NSWSC 121 R v Abdallah (No 6) [2018] NSWSC 729
Category:	Procedural and other rulings
Parties:	Regina (Crown) Katherine Abdallah (Offender)
Representation:	Counsel: J Bowers (Crown) G Stanton (Offender)   Solicitors: Director of Public Prosecutions (Crown) Bannisters Lawyers (Offender)
File Number(s):	2013/40978

Judgment

1. On Tuesday 22 Mary 2018, I sentenced Katherine Abdallah for the manslaughter of Susie Sarkis: R v Abdallah (No 6) [2018] NSWSC 729.

2. On that evening, Channel 7 News played edited excerpts of what appeared to be a copy of part of a section of CCTV footage that was tendered at both the trial in 2015 before Adamson J and the re-trial over which I presided in November 2017.

3. The footage in question shows a physical fight between the offender and Ms Sarkis. This footage covered the 10 minutes leading up to the death of Ms Sarkis by stabbing.

4. There was also an audio recording of two triple-0 calls tendered and played in open court in both trials. There was an exhibit that comprised the audio of the triple-0 calls superimposed over later CCTV footage showing the aftermath of the stabbing.

5. Media outlets made an application to Adamson J for access to this footage in the first trial in 2015.

6. A fully contested hearing of that application proceeded on 20 February 2015, with the media outlets represented by counsel.

7. Her Honour declined access to the items sought on 25 February 2015 in R v Abdallah (No 3) [2015] NSWSC 121. Her reasons were, with respect, highly persuasive. Of particular ongoing relevance was what was said in [23] and [24]:

[23]   I also consider it to be a relevant matter that the footage was taken in a private residence. There is no evidence that anyone but the accused knew that the cameras were operating. Other persons, including the deceased, are depicted in the footage. Such footage was exposed to public gaze in the courtroom because of the public interest in open justice. However, in my view, to accede to the Media’s application that it be released would be likely to have the effect of encouraging prurient voyeurism and sensationalising the images. This is not to impute such motives to the Media, but rather to foresee the possibility that, if the material is released, some viewers, who have no particular interest in a fair report of the trial, will be attracted to the material.

[24]   I have also weighed the interests of the deceased’s family, to which, as it happens, the accused also belongs, as she and the deceased were cousins. The difficulty of coming to terms with the loss of a 21 year old woman who died as a result of violence cannot be underestimated. The publicity that can be expected to be given to moving images of her last hours of life could not but aggravate their grief and distress.

8. In November 2017, on the first day of the re-trial and before the jury were empanelled, the sensitive nature of this material was raised. At that time, counsel were under the impression that a non-publication order was in place over the material.

9. Discussion ensued between counsel and the Bench to the effect that as the material had not been released to the media in the last trial, and recording in court was not permitted, the issue of a non-publication order over the images and audio had not yet arisen.

10. The exchange proceeded as follows:

CROWN PROSECUTOR: I think your Honour confirmed last week, or possibly at the first mention of this matter, that the non publication orders in relation to that footage are still in force.

HER HONOUR: Yes. The judgment was in the form of a refusal to allow access to any news organisation to uplift the footage and broadcast it. There is no suppression order over a media organisation reporting on what in the opinion of the reporter the footage shows and I don't think that I can entertain an application of the suppression of that material so at the moment that current order by her Honour is in place and I will indicate now I would be minded to make the same order again and on the same bases as her Honour's reasoning before and so if an application is made, I can intimate now, subject to submissions of course, but in the general consideration of the requirements of the relevant legislation, I would not have any qualms at all in making an order in the same terms.

CROWN PROSECUTOR: I think my friend and I would ask your Honour to make that order.

STANTON: That is so.

CROWN PROSECUTOR: We agree your Honour should make the order.

HER HONOUR: It doesn't come into play though, does it, until a media organisation asks to access the footage.

CROWN PROSECUTOR: Yes, your Honour, correct.

HER HONOUR: So at the moment the order of her Honour is in place over the footage as it currently exists. We don't actually have a copy of it, I don't think.

CROWN PROSECUTOR: No.

HER HONOUR: In any event I certainly wouldn't be releasing it and I would be very unlikely to vary her Honour's order but if a fresh application is made, I will re determine it but I will indicate now it will be on almost identical lines. Nothing has changed in terms of the considerations that I would have to take into account on any such application.

CROWN PROSECUTOR: Thank you for that indication, I think that covers the situation for our purposes.

11. It was evident in the exchange that if the court had been made aware that there were copies of the material or parts of it in the hands of a media organisation, or any member of the public for that matter, a non-publication order would have been made. I would expect having regard to the obviously sensitive nature and context of the material it would be surprising if any responsible media organisation would consider it appropriate to broadcast it should it come into their possession. Apparently such a view did not commend itself to Channel 7.

12. A few days later, access was sought by a media organisation to those items. Access was declined by me citing Adamson J’s 2015 judgment as the reasons why the application for access was again declined. The access request was dealt with informally and was not pressed.

13. When the footage was played to the jury later in the trial, there was discussion between counsel and the Bench about the sensitive nature of the material and a formal warning was provided to all those present in court that it was an offence to film or record any evidence played in court.

14. A non-publication order was not requested or made at this time because the requests for access to the footage by media organisations had again been declined.

15. What was broadcast by Channel 7 on 22 May 2017 appears to be a copy of some of that material.

16. It is not known how or when it was obtained.

17. Channel 7 has declined to reveal from where or whom it was obtained but I have been informed that neither the New South Wales Police, the office of the Director of Public Prosecutions nor the Supreme Court of New South Wales were the source.

18. For the reasons set out in paragraph [7] above, I am of the view that it is necessary in the public interest for a non-publication order to be made and that interest significantly outweighs the public interest in open justice. The relevant public interest is the interests of the family of Ms Sarkis to not be subjected to further grief and distress by having the publication of the last moments of the deceased’s life subject to display and potentially, prurient voyeurism.

19. I have been informed by the DPP that the family of Ms Sarkis were extremely distressed and concerned about the publication of the edited footage. I consider that Ms Sarkis’ family have sufficient interest in the making of the order and have determined the application on an urgent basis accordingly. Given the nature of the material, its currency and proximity to the sentence given on Tuesday and the urgency of avoiding further distress to the family of the deceased, I concluded that there was no need for a formal application, evidence or submissions.

20. Section 9(3) of the Court Suppression and Non-publication Orders Act 2010 (NSW) permits me to make such an order even after proceedings have been concluded.

21. I consider it appropriate, given the sensitive nature of the material and the distress its publication and/or broadcast causes to the family of the deceased that the order shall remain in place until further order of this Court.

Orders

22. I make the following orders:

1. Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, prohibiting the publication, broadcast, streaming or display of any moving or still images copied from or comprising CCTV footage that show the altercation and aftermath or any part of it between Katherine Abdallah and Suzie Sarkis between the hours of 5.50pm and 6.30pm on 9 February 2013;

2. Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 prohibiting the publication, broadcast or transmission of any of an audio recording or copy of an audio recording or any part of it of the Triple-0 call tendered in evidence and played in open court in the trial by jury of Katherine Abdallah in February 2015 and again in November 2017.

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Decision last updated: 09 August 2023