Supreme Court New South Wales Medium Neutral Citation: R v Dawson [2022] NSWSC 620 Hearing dates: 18 May 2022 Date of orders: 19 May 2022 Decision date: 19 May 2022 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: The application to view or hear a record of evidence held in camera is refused. Catchwords: CRIMINAL LAW – murder trial – significant public interest in the trial proper – proceedings held in camera – application by a media representative for access to view or hear a record of that evidence – whether it is in the interests of justice to grant such an application Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 291, 291C Cases Cited: R v Dawson [2022] NSWSC 555 Category: Procedural rulings Parties: Regina (Crown) Christopher Michael Dawson (Accused) Representation: Counsel: C M Everson SC and E Blizard (Crown) P David (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Greg Walsh & Co Solicitors (Accused) Thomson Geer Lawyers (Media intervenors) File Number(s): 2018/372527 Publication restriction: Nil Judgment 1. HIS HONOUR: Section 291C of the Criminal Procedure Act 1986 provides as follows: 291C Media access to proceedings held in camera (1) If a complainant gives evidence in proceedings in respect of a prescribed sexual offence from a place other than the courtroom by means of closed-circuit television facilities or other technology that enables communication between that place and the courtroom (whether under section 289V or 294B or Part 6), and the proceedings, or the part of the proceedings concerned, are held in camera under this Division, a media representative may, unless the court otherwise directs, enter or remain in the courtroom while the evidence is given from that other place. This subsection does not apply to proceedings in respect of an offence under section 78A or 78B of the Crimes Act 1900 . (2) The fact that proceedings in respect of a prescribed sexual offence, or any part of such proceedings, are held in camera under this Division does not prevent the court from making such arrangements as the court considers reasonably practicable to allow media representatives to view or hear the evidence while it is given, or to view or hear a record of that evidence, as long as the media representatives are not present in the courtroom or other place where the evidence is given during the in camera proceedings. Note : For example, the court may permit media representatives to view the proceedings from a place other than the courtroom by means of closed-circuit television facilities. (3) In this section-- "media representative", in relation to any proceedings, means a person engaged in preparing a report of the proceedings for dissemination through a public news medium. 1. In the course of evidence given by a witness referred to as "JC", I directed pursuant to s 291(3) of the Criminal Procedure Act that certain parts of her evidence be given in camera. That section is relevantly in these terms: 291 Proceedings must be held in camera when complainant gives evidence (1) Any part of any proceedings in respect of a prescribed sexual offence in which evidence is given by a complainant, or an audio visual or audio recording of evidence of the complainant is heard by the court, is to be held in camera, unless the court otherwise directs. (2) This section applies even if the complainant gives evidence by means of closed-circuit television or other technology or under any alternative arrangements available to the complainant under section 289V or 294B or under Part 6. (3) The court may direct that the part of proceedings in which evidence is given by the complainant be held in open court only at the request of a party to the proceedings and only if the court is satisfied that-- (a) special reasons in the interests of justice require the part of the proceedings to be held in open court, or (b) the complainant consents to giving his or her evidence in open court. (4) The principle that proceedings for an offence should generally be open or public in nature, or that justice should be seen to be done, does not of itself constitute special reasons in the interests of justice requiring the part of the proceedings to be held in open court. (5)… 1. An application has now been made by a media representative for access "to view or hear a record of that evidence". 2. On the first day of the trial, I refused an application by the Crown and the accused for an order suppressing all publication of these proceedings: see R v Dawson [2022] NSWSC 555. The application proceeded upon the basis that there was a prospect that the evidence in the trial, if it were not suppressed, might possibly imperil the integrity of different proceedings faced by the accused in the District Court later this year. 3. In the course of that application, I was asked to give separate consideration to an order suppressing all of the evidence of JC or alternatively all evidence in which any reference were made to matters possibly affecting or influencing the course of the District Court proceedings. As will be apparent, I declined to make such an order, principally because of the impracticalities associated with doing so. 4. However, no part of my decision foreclosed the Crown's entitlement to make an application to hear part of JC's evidence in camera. That application is a discrete sub-set of the earlier broader application and as such considerably more limited and correspondingly easier to accommodate. 5. Without descending into the detail of the evidence given by JC in camera, it is sufficient to observe that it was potentially of direct relevance to the District Court proceedings. Having regard to the anticipation that those proceedings will be heard by a jury, I consider that it is not in the interests of justice to permit the media representative to view or hear a record of that evidence. Any prospect that the evidence might be given public attention would in my view be unfair to the accused and carries with it the possibility of irremediable prejudice. 6. It was drawn to my attention that the media representative was prepared to refrain from publication of the evidence until after the completion of the District Court proceedings. Two things may be said about that. First, if there were no current imperative to utilise the evidence for commercial purposes, there could be no complaint about any interference with the concept of open justice that any order refusing access to the evidence might appear to cause. Secondly, it is highly likely that the evidence in question will in any event be given in or to the same effect by JC in the District Court, at which time it will be in the public domain and available for publication without limitation. Accordingly, an order permitting the media representative to view or hear the in camera evidence before then does not appear to me to have significant or obvious utility. 7. In my opinion, the media representative's application to view or hear a record of JC's evidence in camera should be refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 September 2022