Supreme Court New South Wales Medium Neutral Citation: R v Abdallah (No. 3) [2015] NSWSC 121 Hearing dates: 20 February 2015 Decision date: 25 February 2015 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: 1.Decline access to CCTV footage and audio recording of Triple-0 call sought by media outlets. 2.Vacate non-publication order made on 20 February 2015 in relation to this application. Catchwords: CRIMINAL LAW – practice and procedure – application by media for access to CCTV footage and audio recording of Triple-O call played in open court during trial by jury of accused indicted for murder – CCTV in private residence – interests of open justice – administration of justice - potential prejudice to jury members – evidence classified as 'sensitive' – interests of family of the deceased – fair reporting – ability to capture and replay footage would place public in substantially different position to those in courtroom Legislation Cited: Criminal Procedure Act 1986 (NSW), s 314 Cases Cited: John Fairfax Publications Pty Limited v District Court of NSW [2004] NSWCA 324 R v Jovanovic [2014] ACTSC 98, 285 FLR 108 R v O'Grady [2000] NSWSC 1256 R v Kerr [2004] NSWSC 75 R v Xu (No 1) [2005] NSWSC 73 Texts Cited: Practice Note No. SC Gen 2 Category: Procedural rulings Parties: Regina Katherine Abdallah (Accused) Nine Network Australia Pty Ltd, the Australian Broadcasting Corporation, and Nationwide News Pty Ltd (Applicants) Representation: Counsel: T Maltz (Applicants) SP Herbert (Crown) GJ Stanton (Accused) Solicitors: M O'Connor (Nine Network Australia Pty Ltd) (Applicants) Director of Public Prosecutions (Crown) Bannisters Lawyers (Accused) File Number(s): 2013/00040978 Publication restriction: nil JUDGMENT Introduction 1. Nine Network Australia Pty Ltd, the Australian Broadcasting Corporation and Nationwide News Pty Ltd (the Media) applied for access to CCTV footage and an audio recording of the Triple-0 call tendered in evidence and played in open court in the trial by jury of Katherine Abdallah for the murder of Suzie Sarkis, which commenced on 4 February 2015. 2. The CCTV footage was recorded by cameras that the accused had arranged to be installed inside her townhouse at Brighton-Le-Sands less than a fortnight before she fatally stabbed Suzie Sarkis on Saturday 9 February 2013. Parts of the CCTV footage were tendered by the Crown, and other parts were tendered on behalf of the accused. The audio recording of the Triple-0 call was synchronised to the visual footage and played in open court in the trial. 3. The Media applied for the CCTV footage and the audio recording to be released. Mr Maltz of counsel, who appeared on behalf of the Media, accepted that any such release be subject to a condition that access to the material be deferred until the Court adjourns following the jury's verdict and subject to further order prior to that adjournment. On 23 February 2015 the jury returned majority verdicts of not guilty of murder but guilty of manslaughter. Parties' submissions 1. Mr Maltz submitted that the principles of open justice ought operate to permit the material to be released. He contended that the public had a right to know what evidence had been adduced and that members of the public would have seen the footage had they come to court to watch the proceedings. He submitted that concerns about the dignity of the deceased could be adequately accommodated by limiting the footage that was released to exclude certain scenes, such as the act of stabbing or scenes of the deceased on the ground or where her body was exposed. 2. Mr Maltz contended that concern about the conduct of this trial could be met by ordering that any order for access be stayed until further order and that the making of a release order could be deferred until, depending on the verdict reached, the time for an appeal had elapsed. 3. Mr Maltz cited other instances in which graphic moving images taken by CCTV cameras or other film had been released to the media and submitted that the release was consistent with a robust approach to the principles of open justice. He instanced the following cases where access had been granted to audio-visual material: 1. R v Jovanovic [2014] ACTSC 98: access granted to CCTV footage of infliction of grievous bodily harm on a person at a bus interchange; 2. R v Kerr [2004] NSWSC 75: access granted to a video of a person killed by a moving train after being intimidated by an aggressive juvenile into walking across train tracks: discussed in R v Xu (No. 1) [2005] NSWSC 73 (Xu) at [27]-[31] (Kirby J); 3. Access granted to an electronic record of interview with a 16 year old child, following the jury verdict, and subject to suppression of the image of an unrelated friend in the room: R v O'Grady [2000] NSWSC 1256. 1. Mr Maltz distinguished Xu, where Kirby J refused access to footage that showed Ms Xu and her son disappearing from the end of a wharf in circumstances that gave rise to the inference that she jumped into the Parramatta River below. Ms Xu was subsequently rescued but attempts to revive her child were unsuccessful. Kirby J considered that the public interest in open justice was outweighed by the risk that the accused's rehabilitation could be compromised by such images being given wide publicity if the footage were released. His Honour considered at [44]: "Compared to that potential harm, the sacrifice to open justice is, in my view, small." 1. Mr Maltz submitted that the facts of Xu were wholly exceptional and distinguishable from the instant case. He contended that a refusal to release the material would tend to reduce confidence in the system and render any verdict returned by the jury the subject of ill-informed discussion. He submitted that to refuse release would leave a void in the discussion about the case which would inevitably be filled by speculation. 2. Mr Stanton, on behalf of the accused, opposed any access being granted. He submitted that release of the material would tend to affect this trial and any retrial because it would have the effect of converting the public into judges, who would judge the guilt of the accused and assess any conduct of the deceased by reference to the footage rather than to the evidence as a whole. The presence of this second tier of triers of fact might place undue pressure on any future jury or expose those who constituted the jury at trial to adverse comment or debate of a personal kind. He submitted that the playing of the footage would have the effect that the images of his client's conduct in the hours prior to the stabbing of the deceased would remain in the public domain for longer than such images could be expected to remain in the memory of those who saw them in open court. He contended that this would have an unduly adverse and wholly disproportionate effect on his client's future. He also submitted, on behalf of the accused, that although the Media could be expected to report the matter responsibly and fairly, no such assumption could be made about others who would have access to the material once it was available on the internet. 3. The Crown opposed the release of the footage. Madam Crown adopted Mr Stanton's submission about the potential prejudice to the members of the jury, and submitted that the pressures on the jury would tend to be amplified by the release. She also relied on the following three bases. 4. First, she said that the Director of Public Prosecutions had classified the footage as "sensitive" because it showed the moribund body of the deceased and also revealed an exposed breast. By reason of this classification, the footage had been released to the accused's legal representatives and to experts only upon their giving undertakings not to copy or disseminate it. 5. Secondly, the Crown submitted that the interests of the deceased's family ought be taken into account. The deceased's parents had not seen the footage and had no desire to do so. I was informed by Madam Crown (who was unable to obtain evidence to establish this, having regard to the shortness of the notice given of the application) that the deceased's sister, who is in her twenties, suffered a stroke as a result of her sister's death and her psychological condition is unstable. She submitted that the deceased's family opposed release of any such footage and that the mental and physical well-being of members of the deceased's family could be compromised by its release. 6. Thirdly, the Crown submitted that the interests of open justice could be amply accommodated by the fact that the footage has been shown in court at least once and, in respect of some clips, a number of times. The Crown observed that it is open to the Media to describe the images and construct a narrative of how the images fit with the other evidence. Relevant legislation 1. Section 314 of the Criminal Procedure Act 1986 (NSW) provides for media access to court documents, including the indictment, witness statements tendered in evidence and transcripts of evidence. It was common ground that the CCTV footage and audio recording do not fall within the document identified in s 314(2). The Media relied on Practice Note No. SC Gen 2, which applies to both divisions of this Court as well as the Court of Criminal Appeal and the Court of Appeal. Accordingly it covers a wide range of situations. It relevantly provides: Access 6. Access to material in any proceedings is restricted to parties, except with the leave of the Court. 7. Access will normally be granted to non-parties in respect of: - pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential; - documents that record what was said or done in open court; - material that was admitted into evidence; and - information that would have been heard or seen by any person present in open court, unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist. 1. As the material sought was played in open court, access ought be granted unless I consider that the material, or portions of it, should be kept confidential. 2. There are, in my view, several reasons why access to the CCTV footage and the audio recording of the Triple-0 call ought not be granted. 3. Although the interests of open justice are particularly important in criminal trials, so too is the need for some circumspection with respect to the release of information, having regard to the need to protect the administration of justice. Judges who make decisions alone in civil trials are thought to be capable of putting out of their minds extraneous matters and of suspending judgment until the time for decision arrives. However, press coverage and commentary may influence those members of the public who may be called upon to be jurors and give rise to pressure being placed on those who are jurors, notwithstanding the safeguards built into the system to prevent this occurring. 4. It is an important aspect of open justice that the press be permitted to report on court proceedings. The media become the eyes and ears of the public, who are entitled to be in the court room, which is why fair and accurate reporting of court proceedings is protected and why, as Spigelman CJ said in John Fairfax Publications Pty Limited v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344 at [20]: "Nothing should be done to discourage fair and accurate reporting of proceedings." 1. There is, of course, no impediment to the Media describing the CCTV footage or the tone of the accused's voice on the audio recording of the Triple-0 call, since these were played in open court and could be the subject of report. 2. Although the CCTV footage and audio recording formed part of the evidence in the trial, those who saw the footage and heard the recording can be expected to carry only a fleeting recollection of them. A person paying a visit to the courtroom in the course of the trial, including one who remained throughout, would have seen most of the footage but once. Even the crucial 10 minutes before the deceased was stabbed and the 10 minutes afterwards have been played at most 5 times in the course of a trial that lasted in the order of three weeks. 3. If the material were released, it would put the public who viewed it in a substantially different position to someone who has been in the courtroom throughout the trial. The images would be posted on the internet and could be captured and replayed. This circumstance, when coupled with the graphic nature of the evidence, would tend to place undue significance on it. In my view, release of the footage and the audio recording would have a tendency to distort fair reporting of the trial and reduce the assessment of the accused's conduct to what can be seen on the CCTV footage, rather than to the whole of the evidence. 4. Trial by jury is an integral part of the administration of justice in New South Wales. For the duration of the trial, twelve members of the community, randomly selected and not identified, become, collectively, judges of the facts. They deliberate and return a verdict on behalf of the public. The public has a right to know of what occurs in the trial because of the system of open justice. The release of this material would tend, in my view, to compromise this process by facilitating, if not encouraging, the making of quick, ill-informed judgments by viewers of the internet who have neither heard the whole of the evidence nor read reports of the trial. Members of the jury might feel that they have to justify any verdict which does not accord with the summary judgment to which the public has come by reference to a momentary perusal of moving images of the conflict. I regard these potential consequences as inimical to the proper administration of justice. 5. I also consider it to be a relevant matter that the footage was taken in a private residence. There is no evidence that anyone but the accused knew that the cameras were operating. Other persons, including the deceased, are depicted in the footage. Such footage was exposed to public gaze in the courtroom because of the public interest in open justice. However, in my view, to accede to the Media's application that it be released would be likely to have the effect of encouraging prurient voyeurism and sensationalising the images. This is not to impute such motives to the Media, but rather to foresee the possibility that, if the material is released, some viewers, who have no particular interest in a fair report of the trial, will be attracted to the material. 6. I have also weighed the interests of the deceased's family, to which, as it happens, the accused also belongs, as she and the deceased were cousins. The difficulty of coming to terms with the loss of a 21 year old woman who died as a result of violence cannot be underestimated. The publicity that can be expected to be given to moving images of her last hours of life could not but aggravate their grief and distress. 7. For these reasons I decline the access sought. ********** Amendments 11 February 2021 - Publication restriction removed – judgment published 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: 11 February 2021