R v Fesus (No. 8) [2017] NSWSC 1423

Supreme Court New South Wales

Medium Neutral Citation: R v Fesus (No. 8) [2017] NSWSC 1423 Hearing dates: 28 September 2017, 3 October 2017 Date of orders: 03 October 2017 Decision date: 20 October 2017 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Reasons for rulings concerning applications by media for access to trial exhibits Catchwords: CRIMINAL LAW – murder trial – applications by media for access to exhibits during trial – relevant considerations – approach to application concerning evidence subject to non-publication orders Legislation Cited: Court Suppression and Non-publication Orders Act 2010 Cases Cited: R v Fesus (No. 2) (unreported, 15 August 2017) R v Fesus (No. 7) [2017] NSWSC 1422 R v Karimi; R v Khoury; R v Mir (No. 5) [2013] NSWSC 232 R v Sam (No. 5) [2009] NSWSC 543 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) Steve Frank Fesus (Accused) Representation: Counsel: Mr G Smith SC (Crown) Mr K Chapple SC (Accused) Ms M Kumar (Commissioner of Police)

Solicitors: Director of Public Prosecutions (Crown) Nyman Gibson Miralis (Accused) Crown Solicitor's Office (Commissioner of Police) File Number(s): 2013/207336 Publication restriction: ---

Judgment 1. JOHNSON J: The Accused, Steve Frank Fesus, stood trial for the murder of his then wife, Jodie Melissa Fesus, at Mt Warrigal on 11 August 1997. 2. As the trial progressed, representatives of the media made application for access to certain items of evidence tendered in the trial. These items included disks containing video and audio recorded interviews of the Accused with police in August 1997, October 1997, December 2000, January 2001 and July 2013, together with transcripts of those interviews, all of which had been furnished to the jury. 3. During the course of the trial, I declined to grant access to the electronic exhibits, indicating that I would consider the position further after the jury had returned a verdict. 4. In this respect, I took the view that provision of electronic evidence to the media during the course of the trial, with subsequent broadcasting of that material, would heighten the risk that other members of the community would engage with jurors concerning aspects of the evidence in a manner which could distract jurors from their single-minded attention to the evidence adduced in the court room: R v Sam (No. 5) [2009] NSWSC 543 at [14]-[21]; R v Karimi; R v Khoury; R v Mir (No. 5) [2013] NSWSC 232 at [13]-[19]. 5. I emphasised that the concern which I had operated during the trial with the application being able to be revisited after the jury had returned a verdict. 6. Different considerations applied to the transcripts of the police interviews in August 1997, October 1997, December 2000 and January 2001. Provision of those documents to the media would assist fair and accurate reporting of evidence in the trial. Consistent with this approach, the media were granted access to transcripts of interviews between the Accused and police in 1997, 2000 and 2001, but denied access to the electronic recordings of these interviews. 7. Thereafter, a further application was made on behalf of media interests to have access to the electronic exhibits upon an undertaking being given that their content would not be published or broadcast until the jury had returned a verdict in the trial. Having heard the parties, I granted the application upon the condition that media applicants provide a written undertaking that the material would not be published or broadcast until a verdict had been returned. 8. A separate class of evidence arose from a covert operation concerning the Accused which was authorised in late 2012 and undertaken between February and July 2013. Consistent with the approach taken in other trials in this State with respect to this category of evidence, non-publication orders were made in 2013. Those orders, which continue to operate, prohibit publication of the identity of the undercover officers who gave evidence during the trial in closed court. 9. After hearing counsel for the Commissioner of Police on 15 August 2017, I varied an earlier order of the Court and made orders, pursuant to the Court Suppression and Non-publication Orders Act 2010 and public interest immunity principles, that there by no publication of details of the specific techniques utilised in the covert police operation that resulted in the alleged confession of the Accused (including by reference to other cases where the technique had been used) and a location where police officers were deployed during part of the covert police operation: R v Fesus (No. 2) (unreported, 15 August 2017). 10. The orders made on 15 August 2017 remain in force and will continue to operate unless varied by further order of this Court. 11. I indicated that I would hear counsel for the Commissioner of Police, after the jury had retired to consider its verdict, with respect to the media application for access to certain exhibits which are affected by orders made by the Court. 12. These exhibits were the video and audio recording of a conversation between an undercover police officer and the Accused on 8 July 2013 (Exhibit BU) and the transcript of that conversation (Exhibit BV). Also in this category was the electronically recorded interview between investigating police and the Accused on 8 July 2013 (Exhibit BW) and the transcript of that interview (Exhibit BX). In this police interview, there was detailed reference to what had been said in the recorded conversation between the undercover officer and the Accused which had taken place earlier that day. 13. On 28 September 2017, I heard submissions on the media application from Ms Kumar, counsel for the Commissioner of Police, the Crown Prosecutor and Mr Chapple SC, for the Accused (Summing Up T126-127, 133-138). 14. In light of the orders made on 15 August 2017, the Commissioner of Police opposed access being granted to the media to the electronic recording of the conversation between the undercover officer and the Accused on 8 July 2013 (Exhibit BU) and the electronically recorded interview between police and the Accused later that day (Exhibit BW). The Commissioner of Police also opposed access being granted to the complete transcript of the conversation of 8 July 2013 (Exhibit BV) and the complete transcript of the recorded interview (Exhibit BX). 15. Ms Kumar submitted that, if the Court determined that access should be granted to any part of the evidence which was contained in these exhibits, then it should be confined to a heavily redacted version of the recorded conversation between the undercover officer and the Accused (MFI118) and a heavily redacted version of the transcript of that conversation which contained certain extracts only (MFI119). Ms Kumar submitted that, if the Court was to grant access to any part of the transcript of the police interview, it ought be confined to a redacted copy of the transcript of that interview (MFI122). 16. In light of the orders made by the Court with respect to the covert operation, including the orders made on 15 August 2017, I ruled on 3 October 2017 that I did not propose to grant access to the electronic recording of the conversation between the undercover officer and the Accused on 8 July 2013 nor the electronic recording of the interview between police and the Accused undertaken later that day. Nor did I propose to grant access to the disk containing the heavily redacted version of the conversation between the undercover officer and the Accused (MFI118) nor the redacted version of the later record of interview with police (MFI122). 17. I accepted the submission of Mr Chapple SC that a grant of access to the severely confined parts contained in MFI118 (and as transcribed in MFI119) would provide an unduly limited and artificial understanding of this evidence. 18. I considered that there was a balance to be struck by the Court. The orders made by the Court prohibiting publication of aspects of evidence concerning the covert operation must restrict what can be said publicly on this aspect. At the same time, there was an entitlement for the public to be informed, as part of the open justice principle, as to what was alleged against the Accused by the Crown in this trial arising from this covert operation and what the Accused's broad response was to that allegation. 19. As foreshadowed by me during submissions (SU137-138), I was satisfied that the appropriate way forward was to for the Court to release a document which included the extracts from the conversation as contained in MFI119, but with some broader explanation as to how they were said to fit in the Crown case against the Accused and what the Accused's response was to that part of the case. This would necessarily be expressed in general terms only. 20. For this purpose, the Court prepared a document (MFI125) which was furnished to counsel for the parties and for the Commissioner of Police to permit the making of further submissions with respect to it. 21. Having heard counsel with respect to these proposed steps, I granted access to the media to the summary document (a copy of which is annexed to this judgment). I declined the media application for access to the other exhibits (and MFIs) specified in this judgment which related to the covert operation. 22. This judgment contains my reasons for this ruling. 23. I note that some additional parts of the conversation between the undercover police officer and the Accused on 8 July 2013 are contained in my judgment, R v Fesus (No. 7) [2017] NSWSC 1422. That judgment contains my reasons for declining to leave provocation manslaughter to the jury in this case. I am satisfied that what is contained in that judgment is necessary for the purpose of the Court giving reasons for that ruling. I do not consider that any part of the judgment in R v Fesus (No. 7) compromises the non-publication orders made by the Court or the approach otherwise expressed in the present judgment.