R v Wang (No 1)
[2020] NSWSC 1255
•14 September 2020
Supreme Court
New South Wales
Medium Neutral Citation: R v Wang (No 1) [2020] NSWSC 1255 Hearing dates: 14 September 2020 Decision date: 14 September 2020 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: CCTV footage admitted and to be played in open court
Catchwords: CRIME – sentencing – CCTV footage – tender of CCTV footage allowed even though where agreed facts
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010
Cases Cited: R v Mulligan [2016] NSWCCA 47
Category: Procedural and other rulings Parties: Regina (Crown)
Zixi Wang (Offender)Representation: Counsel:
Solicitors:
C Taylor (Crown)
A Bellanto QC; C Lin (Offender)
Director of Public Prosecutions NSW (Crown)
Ting Legal (Offender)
File Number(s): 2019/188107
EX TEMPORE Judgment
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These are proceedings for a sentence on a plea of guilty to murder. There has been tendered agreed facts. The agreed facts refer to CCTV footage which recount, as I understand it, the last eleven minutes of the deceased's life.
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I have not yet seen the footage but as I understand it, it is common ground that it is graphic and capable of causing great distress.
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The Crown seeks to tender the CCTV footage, and then have it played in open court. Senior Counsel for the offender, Mr Bellanto QC, objects to that on the basis that it adds nothing to the proceedings given the agreed facts. He otherwise submits that the Court view the footage in private or alternatively it make an order under s 7 of the Court Suppression and Non-Publication Orders Act 2010 in respect of the footage.
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In considering this issue it needs to be understood that there are three distinct steps that have to be addressed. The first is the admission of the material as evidence in the sentence proceedings. The second is whether the material should be played in open court. The third and wholly distinct step is whether access to the CCTV footage should be granted to third parties specifically the media at a later time to view the footage and if necessary replay it.
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In relation to the first step, having regard to the decision in R v Mulligan [2016] NSWCCA 47 (“Mulligan”), I can see no basis for rejecting the tender of the material. There is, on the material that has been provided to me, real issues about the accused's demeanour, level of control and intoxication in those lasts critical minutes.
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More generally, it is one thing to have a description of a crime in a set of agreed facts. However, where there is CCTV footage available, the Court is better informed as to the full nature and circumstances of a particular crime if footage of this kind is viewed. That approach is certainly consistent with Mulligan.
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In relation to the second step, the starting point is the courts must conduct their proceedings in open court. This includes circumstances where material may be revealed which most will find distressing. There needs to be a strong and powerful reason provided why the Court should depart from the principle of open justice. In particular, where CCTV footage of this kind is available, there is a public interest in the community being reassured that the courts have viewed it and understood, as best they can, the circumstances and gravity of particular criminal offending.
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So far as the material is capable of causing distress to parties who may be present in the court, that is understandable, but it must give way to open justice, especially bearing in mind that a warning can, and in this case will, be given before the material is played, and it is open to anyone to absent themselves for the period of time the footage is played.
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As to the third step concerning media access, all that needs to be understood at this point is that I regard that as a very separate decision as to whether proceedings are to be conducted in open court. In this day and age, the playing of graphic material not only has the potential to be replayed on the news that evening, but to subsist forever on the various social media platforms.
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For that reason, I will scrutinise and hear in open court any application for access to this material. I will not say anything further unless and until there is such an application, until I am satisfied the family of the victim has been consulted about any such application, and until I have actually seen the material myself. Accordingly, the material is admitted and it will be played.
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Decision last updated: 17 September 2020