R v Patterson (No 2) [2024] NSWSC 395

Supreme Court New South Wales

Medium Neutral Citation: R v Patterson (No 2) [2024] NSWSC 395 Hearing dates: 10 April 2024 Date of orders: 10 April 2024 Decision date: 10 April 2024 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: (1) Access to granted to exhibit A and exhibit C. (2) Access to other exhibits is refused. Catchwords: CRIMINAL LAW – jury trial – murder – media applications – access to trial exhibits Legislation Cited: Criminal Procedure Act 1986 (NSW) Cases Cited: Fenech v Nationwide News Pty Ltd [2022] NSWCCA 235 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 and Anor [2018] 41 NTLR 87; [2018] NTSC 22 Texts Cited: Practice Note SC Gen 2, Supreme Court - Access to Court Files Category: Procedural rulings Parties: Rex (Crown) Jason Patterson (Accused) Representation: Counsel: K Ratcliffe (Crown) MP King (Accused)

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused) File Number(s): 2021/327813 Publication restriction: Nil

EXTEMPORE JUDGMENT (REVISED) 1. HIS HONOUR: Jason Patterson is presently on trial in relation to a charge of murder. He is alleged to have murdered Jody James on 17 November 2021 at Deniliquin. The trial commenced before me on Monday of this week when a jury was empanelled. The trial has proceeded over the following days. 2. Applications have been received on behalf of two media outlets. There is an application made by Mr Monty Jacka of the ABC and also an application from Zoe McMaugh of the Deniliquin Pastoral Times. Those applications seek access to exhibits in the trial, or at least are expressed as seeking access to exhibits in the trial. 3. I can deal firstly with the application of Ms McMaugh very briefly. She seeks access to the originating process. In this case that is the indictment. There is no reason why the applicant ought not to have access to that document. 4. Further than that, the application seeks "charges, opening statements by defence and prosecution". Insofar as charges are sought, that is the indictment which I have indicated will be provided. Insofar as opening statements by defence counsel and prosecution are concerned, they are not exhibits. There is no means by which I can grant access to those, although I note those opening statements were made in open court and there is no prohibition on reporting what was said by counsel in their opening statements in court. 5. The application of Mr Jacka seeks access to exhibits A, B, C and D. I anticipate that there is likely to be further application for exhibits which have since been tendered subsequent to the making of the application. I propose to make a ruling in relation to exhibits A, B, C and D and provide an indication of the likely ruling with respect to any application for further exhibits, noting that any further application must necessarily be dealt with on its merits and having regard to any submissions that are made, either by the parties or by the applicants themselves. 6. In that regard, I note that neither applicant has sought to be heard on the applications that have been made beyond what has been advanced in the written applications themselves. 7. In determining the applications, it is appropriate to first acknowledge the principle of open justice. That principle has been described as a fundamental axiom of the Australian legal system. Regard must be had to that principle in determining applications such as the present; 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. 8. The principle of open justice is operating in the context of the present case by virtue of the fact that the doors of the court are open. In referring to the doors of the court being open, that is true in both a literal and metaphoric sense, in that media outlets have access to the proceedings through an electronic link. In that way the fundamental principle of open justice is being honoured. It is open to the media outlets, either through their physical presence in court or by their presence online to report on any part of these proceedings, subject to the obvious restriction on reporting matters which take place in the absence of the jury. 9. The request for exhibits does not so much impact the right of the media to report on these proceedings, but rather, the method by which it is reported. That is, where access is sought to exhibits, if that access is not granted that does not create any prohibition on the media reporting on the content of what has been seen, but in the case of, for example, an audio visual exhibit, it will prevent the media from replaying the exhibit or providing access to the footage on an electronic platform. 10. Thus it has 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 and Anor [2018] 41 NTLR 87; [2018] NTSC 22 at [21]. 1. Applications such as the present are not governed by any particular legislative provision. 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]. 2. The Practice Note SC Gen 2, Supreme Court - 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. 3. Ultimately, the determination is discretionary. That discretion is 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. 4. Reference by the applicants has been made to the decision of the Court of Criminal Appeal in Fenech v Nationwide News Pty Ltd [2022] NSWCCA 235. The application in that matter related to a bail application. The considerations in that case were somewhat different in that, as is typical of bail applications before the Supreme Court, the material before the Court was in the form of exhibits which were not themselves read onto the record. That is, in the absence of access to the exhibits, the media would have been prevented from an understanding of what had been presented in Court and the basis for the decision made with respect to bail. These proceedings are quite different. They are taking place in front of a jury. Everything relevant to the jury is heard before the jury. The media are in the same position as the jury in terms of being able to observe and take notes of that evidence. 5. Thus, in the circumstances, it seems to me that the applications are not so much concerned, as I have said, with access to the substance of the evidence itself, but, rather, are concerned with the means by which the evidence can be reproduced for consumers of the news. 6. Given the matter is proceeding before a jury, a particular concern arises. The jury have been warned each day to refrain from discussing what has taken place in court. I have no doubt that the jurors have understood that warning and will endeavour to abide by it. That, however, is not a good reason for making that task harder than it should be. It seems to me that providing certain exhibits will have the likely effect of prompting public discussion with the likely result that members of the public, knowing that a particular juror is sitting on a jury, may be inclined to raise what they have seen through the media with that juror in order to obtain the juror's views as to what has been seen in Court, or simply for the purposes of general discussion. 7. That is likely to lead to discussions between a juror and a person not on the jury, with at least the capacity to impact that juror's ability to compartmentalise what has been heard and seen in Court. That is undesirable. 8. In those circumstances, it seems to me that access should not be given to exhibits B or D which contain video or audio visual footage. 9. As I have said, that ruling does not in a material way impinge on the principle of open justice given that it does not affect the media's ability to report on those matters, it simply affects the manner in which those matters are reported. 10. Exhibits A and C seem to me not to raise concerns of a similar nature and it is appropriate that access be granted to those exhibits. 11. Whilst there is no application at this stage in relation to exhibits E, F and 1, that seems to me likely a matter of timing. Whilst it will be necessary to rule at an appropriate time if an application is received, on the material currently before me I would not be inclined to allow access to exhibit F, but would be inclined to allow access to exhibit E and exhibit 1. 12. Accordingly, I make the following orders: 1. Access is granted to exhibit A and exhibit C. 2. Access to other exhibits is refused.