Supreme Court New South Wales Medium Neutral Citation: R v Pettiford [2023] NSWSC 1612 Hearing dates: 5 December 2023 Date of orders: 5 December 2023 Decision date: 05 December 2023 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: Access granted to exhibits, L, J, R and T. Catchwords: CRIMINAL TRIAL – murder and attempted murder – application by media for access to trial exhibits – jury retired to consider verdict – submissions made by parties – where accused's case is that he is not criminally responsible on the grounds of mental health impairment – where outstanding charge of murder in Queensland – where certain material sought has a confronting quality – access granted to certain CCTV footage and body worn video of arrest – access denied for police interviews, CCTV at Shortland Correctional Centre, and other material. Legislation Cited: Criminal Procedure Act 1986 (NSW) s 314 Cases Cited: John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 R v Dirani (No 33) [2019] NSWSC 288 Registrar of the Supreme Court (NT) v Nationwide News Pty Ltd & Anor (2018) 41 NTLR 87; [2018] NTSC 22 Texts Cited: Practice Note SC Gen 2 – Access to Court Files Category: Procedural rulings Parties: Crown (Rex) Kevin James Pettiford (Accused) Representation: Counsel: B Campbell with K Biffin (Crown) J Watts (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused) File Number(s): 2019/372723; 2020/6317 Publication restriction: NIL EX TEMPORE JUDGMENT (REVISED) 1. HIS HONOUR: Kevin James Pettiford is on trial in relation to one count of murder alleged to have been committed on or about 21 November 2019 at Tweed Heads and one count of wounding with intent to murder alleged to have been committed at the Shortland Correctional Centre on 28 December 2019. That trial has taken place before me over the last four and a bit weeks. The jury retired to consider its verdict mid-morning yesterday, being Monday 4 December 2023. They are currently deliberating. 2. Applications have been received on behalf of various media outlets seeking access to exhibits. Submissions have been received on behalf of one of the applicants. Submissions have also been received on behalf of the Department of Corrective Services in relation to an exhibit containing footage taken from a closed-circuit television camera within the correctional facility where count 2 is alleged to have occurred. 3. I have been assisted by submissions on behalf of the Crown in the proceedings, albeit that the Crown does not take a position as to what order should be made. Submissions have also been made on behalf of the accused. Those submissions, whilst not opposing the applications in their entirety, oppose the release of certain matters. 4. The applications have been made by, firstly, Ms Tiffiny Genders of Channel 9. That application seeks police body-worn video footage of the bus arrest, which is exhibit L; the accused's ERISP, which is taken to be a reference to exhibit N but possibly also includes other records of interview with police; and closed-circuit television of the accused posting a letter from "THOD", that is a reference to letters posted by the accused signed "THOD", an acronym which he later disclosed referred to "The Hand of Death". That appears to be a reference to exhibit T. Whilst that exhibit does not actually show the accused posting anything, it does include footage of the accused's movements, including, it would seem, footage of him at a post office. 5. Additionally, the application seeks the "letter from THOD". Those are the letters to which I have just referred. They are contained in exhibits O and FF. The application seeks exhibit X, that is a USB of the CCTV footage at the Shortland Correctional Centre showing the act of the accused forming the basis of count 2. Additionally, the application seeks exhibit Z, which is an interview between a police officer and the accused in relation to that event. 6. Ms Sarah McPhee of The Sydney Morning Herald seeks CCTV of the accused's movements before and after the killing of Mr Murray and the attack on Mr Mellows comprising exhibit J, exhibit R, and exhibit X; vision of bus arrest, initial police conversation, and police interviews, those comprising exhibits L, M, N and EE; documents shown during police interviews, including Hand of Death letter contained within exhibits O and FF; and photos of the Goulburn Prison board, that is, exhibit AA. 7. An application has also been made by Ms Leonie Ryan of Channel 7NEWS. She seeks access to the ERISP with the accused, CCTV from inside the gaol, and his arrest on the bus. 8. Ms Emma Rennie of ABC Lismore seeks the recording of police interviews with the accused, CCTV of the accused in custody at Shortland Correctional Centre, and CCTV of the accused at the site around Tweed Heads before and after the death of Andrew Whyte Murray. 9. As can be seen, there is very substantial overlap between the various applications. I do not propose granting access to the interviews with police, in particular exhibits N, CC, EE, GG, or BB, nor do I propose granting access to the footage of the accused at Shortland Correctional Centre, that is exhibit X. Further, I do not propose granting access to the documents shown to the accused during the police interviews including the Hand of Death letter, that is, exhibits O and FF, or the photos of the Goulburn Prison board, exhibit AA. 10. I do propose that access be granted to the CCTV footage of the accused's movements before and after the killing of Andrew Murray, they being exhibits J and R, together with exhibit T. Access to those exhibits will include access to the synopsis provided as part of the exhibits. I further propose to grant access to exhibit L, that being the recording of the accused's arrest on the bus. My reasons for that determination are as follows. 11. Firstly, it is appropriate that the principle of open justice be acknowledged. It has been described as a fundamental axiom of the Australian legal system. It is appropriate that regard be had to that principle when determining applications for access to exhibits. See R v Dirani (No 33) [2019] NSWSC 288 and John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101. 12. The role of our media as part of a functioning democracy must also be acknowledged. As part of that important role, the media, in reporting on court proceedings, promotes public confidence in the administration of justice. That confidence is an aspect of the wellbeing of our community more generally. 13. The principle of open justice is recognised in the manner in which courts generally operate, that is, with doors open, including, within the expression "doors", the modern development of internet links enabling media outlets to view proceedings. But as has also been said, "an open court does not necessarily become "closed" because there is no right to access exhibits or court records, or because a request by a member of the public or media for access to exhibits or court records is refused": see Registrar of the Supreme Court (NT) v Nationwide News Pty Ltd & Anor (2018) 41 NTLR 87; [2018] NTSC 22 at [21]. 14. The determination of applications such as the present is not governed by any particular legislative provision. In particular, I note that s 314 of the Criminal Procedure Act 1986 (NSW), whilst headed "Media access to court documents" does not apply to the present situation, see R v Dirani (No 33) at [44]. I note that reflects the common position of all parties, including Ms McPhee who provided submissions in support of her application. 15. The Practice Note SC Gen 2 – Access to Court Files deals with applications such as the present. It is of course a Practice Note and does not provide any rules of law. Ultimately, the determination is discretionary, a discretion to be exercised having regard to relevant factors including, as I have indicated, the principle of open justice and the interest in facilitating the fair and free report of a court proceeding. 16. There are particular concerns, however, that apply in the present case that militate against the provision of all material sought. In particular, at this stage, the accused has not been found guilty of either offence and may not be found guilty of either offence. The trial has been fought on the basis that he is entitled to a verdict of act proven but not criminally responsible. Three of the four applicants have indicated that they would not press the applications in the event that those verdicts were to be returned. One of the applications, that of Ms Rennie, is not so limited. 17. The second concern of significance is that the accused faces an outstanding charge of murder in Queensland. It is an offence committed in broadly similar circumstances to the offence in count 1 on the indictment. There is a legitimate concern in relation to the release of material that may significantly prejudice that trial. Clearly, any reporting of these proceedings has the capacity to prejudice any future trial in Queensland. No application, however, has been made to close the Court or limit reporting of proceedings in Court. 18. Submissions made on behalf of the accused sought to limit the release of material to that which would limit, without necessarily eliminating, the prejudice to the accused. On that basis, objection was made to the release of the records of interview of the accused, the footage at the Shortland Correctional Centre, various documents shown to the accused in the record of interview, and the pinboard within the accused's cell at the Goulburn Correctional Centre. Each of those items does have a particular quality. 19. In his records of interview, the accused openly admitted to the killing of Mr Murray, and in the case of count 2, the wounding of Mr Mellows. The accused referred to himself as "The Hand of Death". He expressed himself as engaging in killing as a result of homicidal urges. He indicated that he applied a code to select his particular targets. The material shown to him included letters signed by him as "The Hand of Death". The material found in his cell referred to, amongst other things, the time expected to elapse between severing of particular arteries and a victim's death. All of that material has a confronting quality. 20. The nature of the crimes charged against the accused and the evidence led in support can and has been reported in the media. In my view, free and fair reporting will not be assisted with the additional availability of material to which I have referred which, because of its quality, is very likely to stick in the minds of any potential jurors. That has obvious consequences for steps required to ensure a fair trial of the accused with respect to the offences in Queensland. 21. For those reasons, I am of the view that while material showing the accused's movements and his arrest should be released in order to augment any reporting of the proceedings, those matters that have a particular quality to which I have referred should be restricted. For those reasons, the media applications are determined as I have indicated. ********** 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: 18 December 2023