Supreme Court New South Wales Medium Neutral Citation: R v Karimi; R v Khoury; R v Mir (No. 5) [2013] NSWSC 232 Hearing dates: 20 March 2013 Decision date: 20 March 2013 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Request by media for electronic copies of "000" calls declined Catchwords: CRIMINAL LAW - jury trial - charges of murder in context of home invasion - victim killed as a result of multiple blows struck with meat cleavers - "000" calls made by occupants of house during and immediately after home invasion - media seek electronic copies of "000" calls to broadcast as part of television reports of the trial - discretionary considerations - risk of jury being distracted directly or indirectly by dramatic reporting of trial including "000" calls - application declined for balance of trial Legislation Cited: --- Cases Cited: R v Sam (No. 5) [2009] NSWSC 543 R v Sam (No. 16) [2009] NSWSC 544; 196 A Crim R 138 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) Mohammad Jawad Karimi (Accused) John Khoury (Accused) Mahdi Mir (Accused) Representation: Counsel: Mr E Wasilenia (Karimi) Mr A Radojev; Mr M Juhasz (Khoury) Mr DN Stewart (Mir) Mr K McKay (Crown) Solicitors: Director of Public Prosecutions (NSW) (Crown) Crimlaw (NSW) Pty Limited (Karimi) Macquarie Lawyers Burwood (Khoury) Shiranica Danieli Lawyers (Mir) Director of Public Prosecutions (NSW) (Crown) File Number(s): 2010/223311; 2010/324901 (Karimi) 2010/323677 (Khoury) 2010/244495 (Mir) Publication restriction: --- Judgment (on media application for COPIES OF exhibits l and m to allow them to be broadcast in news reports of the trial - T211) 1JOHNSON J: This is the third day of the jury trial of John Khoury, Mohammed Jawad Karimi and Mahdi Mir on a number of serious charges. 2Included in the indictment are charges alleged by the Crown to arise out of a home invasion carried out on the premises of the Burgess family at Lurnea on 1 July 2010. In the course of that home invasion, the Crown alleges that Kesley Burgess was murdered by means of multiple wounds inflicted by meat cleavers wielded by the invaders. The Crown alleges, as well, that the property of Tracey Burgess, the mother of Kesley Burgess, was stolen during that alleged offence. 3As part of the Crown case, the Crown has called to give evidence today, Kristal McLachlan, who was the girlfriend of Kesley Burgess and was in the Burgess house at the time of these events, and Mrs Burgess who likewise was in the house and witnessed the events leading to the death of her son. 4The Crown has tendered a series of "000" calls. The audio recordings of those calls are in evidence. First is a "000" call made by Ms McLachlan when in the bedroom occupied by her and Kesley Burgess at the Burgess house, at a time when, on her evidence, one of the invaders commanded that she stop the call and hand over the phone (Exhibit L). 5In addition, the Crown has tendered three "000" calls made later, during which (in at least the first call) may be heard the distressed sounds of the voices of Ms McLachlan and Mrs Burgess calling for urgent assistance, given the tragic events that had occurred. 6This evidence is graphic in its content. The graphic effect of the evidence is, of course, heightened by the fact that it is, effectively, contemporaneous with the home invasion (Exhibit L) or occurs very soon after the home invasion (Exhibit M). 7During the course of this afternoon, I was informed that three representatives of the television media sought access to the "000" calls (Exhibit L and Exhibit M) for the purpose of playing them on tonight's news broadcasts. The applications made by the media representatives were directed promptly to the Public Information Officer of the Court, who has brought them to my attention. 8The Court has a discretion whether to release exhibits of this sort during the course of a trial: R v Sam (No. 5) [2009] NSWSC 543 at [6]; R v Sam (No. 16) [2009] NSWSC 544; 196 A Crim R 138 at 141 [12]ff. 9I have called upon counsel to make submissions with respect to the exercise of discretion. 10The Crown position was that this was essentially a matter for the Court, although it was said that if there was concern in the mind of the Court with respect to the impact upon the jury, then a measure of caution may be appropriate. 11Counsel for each of the Accused has opposed the application that the disks be made available at this time for broadcasting by the media. 12I emphasise that no counsel has submitted that there ought be any limitation on the media's ability to make a fair report of what has been said in Court today, including the words and sounds in the "000" calls. The opposition is to the release of the electronic exhibits at this time. 13In R v Sam (No. 5), it was necessary to consider an application, in some respects similar to this, during a jury trial. In that judgment, I emphasised (at [14]-[15]) that the Court should have regard to the open justice principle which is a fundamental axiom of the Australian legal system. In addition, I emphasised in that trial, that the subject matter of the trial (and at least this aspect of the present trial) was emotionally challenging for all concerned. 14I said in that judgment (at [19]) that the principal concern which I had with the media application was the likely tendency of media publicity to distract the jury from their single-minded attention to the evidence adduced in the courtroom. Although I had directed the jury to disregard media coverage and avoid discussion with family and friends (those being orthodox directions in the context of a criminal trial), I observed that there was a risk that a measure of heightened and dramatic publicity may place pressure upon jurors in this respect (at [21]). 15There is a very significant emotional element in this phase of the present trial. So much would be clear to all those who have witnessed the persons who have passed through the witness box today, and in particular Ms McLachlan and Mrs Burgess. 16Should the media be permitted to broadcast the sounds on the "000" calls, there is a real concern, in my view, that the emotional aspects of the trial will dominate the public reporting of the trial, and that this will be heightened substantially (and on an ongoing basis) until the trial is concluded. 17Of course, the jury have heard the "000" calls and they will hear them again. That is not the issue. The concern, in my view, is that the potential distraction of the jury by a heightened emotional level of reporting, accompanied by the sounds contained in the "000" calls, will tend to increase the level of inquiry and scrutiny by family and friends to the jurors, which can only operate to distract, or tend to distract the jurors from their duties and obligations as jurors. 18In R v Sam (No. 5), I made clear that such a position would be a temporary one. When this trial is over, I can see no impediment, subject to any further submission that is put, to the making available of evidence such as this for publication. My concern is the potential negative impact upon this jury, sitting in this trial, if this material is played tonight and (as one might expect) is played thereafter from time to time during the trial, thereby creating constant focal points for discussion with the jurors by friends, family and others. 19The media will in no way be limited in their ability to publish every word spoken in this Court today, in the presence of the jury. In due course, the application for access to these "000" calls may be revived. However, for the moment, the application is 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: 04 October 2013