Local Court New South Wales Medium Neutral Citation: Police v Phillip Charles Bugmy [2011] NSWLC 28 Hearing dates: 17, 19 & 26/08/2011 Decision date: 02 September 2011 Jurisdiction: Criminal Before: Dunlevy LCM Decision: Application granted. The ABC may make a copy of Exhibit 1 of the substantive proceedings by any non-destructive means chosen by the ABC. Catchwords: INTERLOCUTORY APPLICATION - application by news media organisation for access to exhibit in criminal proceeding - whether appropriate to grant leave to have access in the circumstances of the case - principle of open justice Legislation Cited: Local Court Rules 2009 Cases Cited: Attorney-General v Guardian Newspapers Ltd (No 2) (1990) 1 AC 109 John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 R v Xu (No 1) (2005) 152 A Crim R 17 R v Sam (No 5) [2009] NSWSC 543 R v Sam (No 16) [2009] NSWSC 544 Category: Interlocutory applications Parties: Police Phillip Charles Bugmy (the defendant) Australian Broadcasting Corporation (the applicant) Representation: Mr Doyle of Counsel for the applicant Sgts Scanlan and Ridley for the Police Mr Hearn and Ms Graham, solicitors for the defendant File Number(s): 2011/55718 JUDGMENT Introduction 1The defendant to the substantive proceedings is charged with various alleged offences that are currently being heard in Wilcannia Local Court. That hearing has thus has been heard on 17 and 18 August 2011. The proceedings have been adjourned part heard to Wilcannia Local Court on 15 December 2011. 2As part of the proceedings the Police have tendered a DVD that forms Exhibit 1 ('the DVD') and which shows the defendant being tasered by a police officer in an incident that is the subject of the proceedings. The prosecution case remains open, but the police officer who used the taser on the defendant has given evidence as to why he took this action. The appropriateness of the use of the taser has been challenged in cross-examination by the solicitor for the defendant. This issue is very much a live one between the parties and is an important aspect of the case. 3The substantive proceedings have attracted some level of public interest and the Australian Broadcasting Corporation ('the ABC') are by this current application seeking permission to copy the DVD, with a view towards possibly showing the contents on television and the internet. The application has been brought in written form by Ms Roberts, a journalist employed by the Broken Hill studio of the ABC. 4When the application was initially brought the ABC sought both access to the DVD as well as an order allowing it to make a copy. The application first came before Wilcannia Local Court on 17 August 2011 at which time I granted the ABC immediate viewing access to the DVD. I adjourned the application to copy the DVD to Broken Hill Local Court on 19 August 2011. At the time of the adjournment I indicated I would require the assistance of the parties in determining an issue as to the copyright attached to the DVD. Those issues were resolved on 19 August 2011 and I further adjourned the application so that the Police could obtain legal advice. 5The balance of the application was heard by me on 26 August 2011 in Broken Hill Local Court. I reserved on the issue and adjourned the application to Wentworth Local Court on 2 September 2011 so that I could consider the submissions of the parties and prepare a written judgment. Just in case it need be said, the reason why the matter has been before so many different courts is that I am a circuit magistrate and am required to sit in a number of different places throughout the month. 6Having reviewed the evidence in this matter, along with the submissions of the parties and the case law referred to therein, I am now able to hand down this judgment. The Local Court Rule 7The starting point for my reasoning is the rule under which the application is being brought, namely rule 8.10 of the Local Court Rules 2009, which reads: 8.10 Copies of court records (1) This rule applies to committal proceedings, summary proceedings and application proceedings. (2) A party to the proceedings is entitled to: (a) access to a copy of the court record or transcript of evidence taken at the proceedings, or (b) on payment of any fee prescribed by regulations made under the Criminal Procedure Act 1986 or the Local Court Act 2007, obtain a copy of the court record or transcript of evidence taken at the proceedings. (3) A person who is not a party to the proceedings may, with the leave of the Magistrate or registrar: (a) have access to a copy of the court record or transcript of evidence taken at the proceedings, or (b) on payment of the prescribed fee, obtain a copy of the court record or transcript of evidence taken at the proceedings. (4) The Magistrate or registrar may grant leave for the purposes of subrule (3) if of the opinion that it is appropriate to do so in the circumstances. (5) In determining whether it is appropriate to grant a person leave for the purposes of subrule (3), the Magistrate or registrar is to have regard to the following matters: (a) the principle that proceedings are generally to be heard in open court, (b) the impact of granting leave on the protected person or victim of crime, (c) the connection that the person requesting access has to the proceedings, (d) the reasons access is being sought, (e) any other matter that the Magistrate or registrar considers relevant. 8Thus the remaining issue to be determined is whether I should grant leave to the ABC to copy the DVD pursuant to subrule (3)(b). The test to be applied is that created by subrule (4), namely whether it is appropriate to grant leave given the circumstances of the case. In determining this issue I am required to take into account all of factors referred to in subrule (5) that are relevant to this application. 9During the course of submissions the ABC has asked me to consider the factors referred to in paragraphs (a), (d) and (e) of subrule 5. The solicitor for the defendant has effectively joined in these submissions with the addition of some further points of argument. For reasons that will become apparent later in this judgment it is not necessary to deal with those further points. The Police by way of written submissions prepared by Messers Blake Dawson have submitted that I should also take into account the factor contained within paragraph (b). Their position is that ultimately an order should be made that the ABC be allowed to copy the DVD, but that the order should not be made until after the conclusion of the proceedings. The ABC's Arguments 10The factor referred to in rule 8.10(5)(a) is commonly referred to as the principle of open justice. The fundamentally important nature of this principle was aptly stated in the Court of Appeal judgment of Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 at 352, which I respectfully quote: It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of the proceedings in public including, relevantly, the taking of the verdicts after a criminal trial, is an essential quality of an Australian court of justice. 11Spigelman CJ then went on to observe at 353 that an important aspect of this principle of openness is the ability of the media to report on court proceedings: The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. 12During submissions for the ABC I was also referred to other cases where this reasoning had been applied in similar circumstances to the current application. Relevantly I have been asked to consider that in the case of an item marked as a public exhibit there is a prima facie right of the public to have access to such material which should only be refused in wholly exceptional circumstances: R v Xu (No 1) (2005) 152 A Crim R 17 at 21 per Kirby J. 13The ABC has also submitted that the media are ' the eyes and ears of the general public ' (a term referred to in Attorney-General v Guardian Newspapers Ltd (No 2) (1990) 1 AC 109 at 183) and that this is an important factor as not all members of the public can attend court proceedings (as observed by Johnson J in R v Sam (No 16) [2009] NSWSC 544 at [16]). In this regard the ABC submits that them being granted access to the DVD is not enough to give effect to this principle and that in order for them to be the eyes and ears of the public, the public needs to be able to see the contents of the DVD. 14This last issue segues neatly into the issues to be considered pursuant to rule 8.10(3)(d) which requires me to consider the purpose for which the ABC are seeking to copy the DVD. In that regard the ABC have submitted that the copy is sought so that it can be broadcast as part of a fair and accurate report of the proceedings. There is no reason whatsoever to query that position - if indeed I am even permitted to. 15Finally, pursuant to rule 8.10(3)(e) I have been asked to consider a number of other factors including that the Defendant supports the application and there is no risk of his suffering mental harm such as that which was of concern to Kirby J in R v Xu (No 1). It has also been submitted to me that the subject imagery contained within the DVD is not just something that would interest the public but in fact touches upon a matter of significant public interest. The Police Arguments 16As alluded to above the Police do not oppose the ABC eventually being able to obtain a copy of the DVD but have argued that this should be deferred until the conclusion of the substantive proceedings. 17In furtherance of their position the Police have first referred to rule 8.10(3)(a) and submitted that the principle of open justice is subject to exceptions and limitations. It was pointed out to me that in R v Sam (No 16) Johnson J did not grant access to the relevant exhibit until after the subject trial was concluded and in a previous application dealt with in R v Sam (No 5) [2009] NSWSC 543 the media were refused access to the relevant exhibits. The Police also referred to R v Xu (No 1) , a case where access to exhibits was denied by Kirby J on the basis that the public airing of their contents carried a measurable possibility of causing mental harm to the accused. 18In relation to rule 8.10(3)(b) and (e) the Police have submitted that I should take into account the impact that releasing the footage will have upon the police who are the alleged victims in this matter as well as other factors that may affect the Wilcannia community. In that regard, the Police have presented sworn evidence in the form of an affidavit made by Inspector David Gallagher which forms Exhibit 1 in this application. Inspector Gallagher is an experienced police officer who is familiar with Wilcannia through his duties. He has an interest in community relations with Aboriginal people, is the chairman of the local Rugby League and is a member of the Broken Hill City Council. He is therefore well qualified to give evidence in relation to practical policing issues as well as broader community relations issues. 19In his affidavit Inspector Gallagher refers to the fact that in recent years there has been a marked reduction in the number of assaults committed on police in Wilcannia. He attributes this drop to the efforts made by the police and broader community to reconcile past differences. There has also been an overall reduction in the amount of crime in Wilcannia, which has allowed the police to reduce the number of officers stationed in Wilcannia. 20Notwithstanding the abovementioned improvements, for a town its size Wilcannia still has a very high number of assaults on police - 64 in the 12 months leading up to the making of the affidavit. Inspector Gallagher therefore has concerns that the broadcasting of the DVD may lead to an increase in the level of crime in Wilcannia in general, and more particularly crimes being committed against the police involved in this matter. He also has concerns that the premature broadcasting of the footage without the proper context may lead to rifts within the Wilcannia community with some people coming out in support of the police but others being angry with the police. Analysis of the arguments 21The principle that court cases should be conducted publicly is one the hallmarks of the Australian court system. It allows the activities of the courts and the parties to proceedings to be subjected to public scrutiny and commentary. This principle is so fundamental to our justice system that it should be departed from only on the rarest of occasions. 22Similarly, an unrestrained and properly informed media is one the hallmarks of Australian democracy. As stated above nothing should be done to restrict the fair and accurate reporting of proceedings subject to very rare exceptions. Such exceptions include the publication of details that might affect the objective deliberations of a jury, which is not a concern here. 23I also think it relevant that the DVD has now been played in open court at Wilcannia on a number of occasions and in that regard is squarely in the public domain. In terms of the footage being taken out of context, it has been confirmed by police witnesses that the video footage shows virtually the entire relevant incident and there is thus no reason to conclude that the footage cannot speak for itself. 24In this case there are also no concerns as to the effect that the broadcasting of the DVD may have on the defendant. Rather, he wholeheartedly supports the ABC's application. I do however accept that there may be legitimate concerns as to the wellbeing of the police who are involved in this matter and I have taken that into account in coming to my decision. 25It is tempting to allow concerns over the Wilcannia community's reaction to the broadcasting of the DVD overwhelm the other factors at play in this matter. There is no doubt that there has been a substantial reduction in crime in Wilcannia in recent years, one that I have been able to observe as its Magistrate and as a long-time resident of Broken Hill. There is the possibility that the airing of the DVD may set back some of the progress that has been made. However, I accept the ABC's argument that we should not be overly presumptuous as to the potential wrongdoings of unknown people. 26As referred to above I have some doubts as to whether it is for me to judge the public importance of the subject matter of the DVD; the media are just as entitled to report on the trivial as they are on matters of great importance. However, to the extent that I am allowed, I take into account that the ABC are seeking to broadcast footage the contents of which would be of significant public interest. As put by counsel for the ABC, the contents of the footage are not something of only prurient value. 27One need only recall the public reaction to the findings of the Royal Commissions into Police Corruption and Aboriginal Deaths in Custody to realise that there are many members of the community concerned about the alleged misuse of police powers and alleged mistreatment of Aboriginal people at the hands of police. There are also many people who query whether tasers should be used at all by police. 28I should also state that there are no doubt many people in the community who feel that the police do not have enough powers to deal with alleged criminals. We should not simply assume that members of the public who view the footage will react adversely. Such contrasting positions illustrate that the public viewing of the DVD may enliven public discourse on a number of important issues. Conclusion 29With the DVD being a public exhibit there is a prima facie right for the public to gain access to and view the relevant footage. In order to give practical effect to that right the ABC should be allowed to copy and broadcast the footage. Whilst I accept that the broadcasting of the footage may cause some disquiet within certain portions of the community it may also be a catalyst for discussion on issues of public interest. The circumstances surrounding this case would not appear to be wholly exceptional and would not rebut the prima facie presumption in favour of allowing access. There is also no reason to delay the potential broadcasting of the footage as the broadcasting will not cause an injustice to the parties. I will therefore grant the application forthwith. 30Consequently I order that the ABC may make a copy of Exhibit 1 of the substantive proceedings by any non-destructive means chosen by the ABC. Magistrate G.J. Dunlevy Wentworth Local Court 2 September 2011 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: 13 September 2011