R v Cliff (No 3) [2018] NSWSC 129

Supreme Court New South Wales

Medium Neutral Citation: R v Cliff (No 3) [2018] NSWSC 129 Hearing dates: 14 February 2018 Date of orders: 14 February 2018 Decision date: 14 February 2018 Jurisdiction: Common Law Before: Campbell J Decision: Application for media access to MFI 6 and MFI 7 refused. Catchwords: CRIMINAL LAW – application for media access - audio-visual recording - open justice principle - application for access refused Legislation Cited: Evidence Act 1995 (Cth), s 66 Cases Cited: Esso Australia Resources Limited v Plowman [1995] 183 CLR 10; Gately v The Queen (2007) 232 CLR 208; [2005] HCA 55; John Fairfax Publications Pty Ltd & Ors v Ryde Local Court (2005) 62 NSWLR [2005] NSWCA 101; R v NZ (2005) 62 NSWLR 628 [2005] NSWCCA 278; Smith v Harris [1996] 2 VR 335 Category: Procedural and other rulings Parties: Regina (Crown) Bryce Cliff (Accused) Representation: Counsel: M Pincott (Crown) E Wilson SC (Accused)

Solicitor: M McFarlane (Office Director of Public Prosecutions) (Crown) A Van der Velde (Matouk Joyner Lawyers) (Accused) File Number(s): 2016/175505

EX TEMPORE Judgment (revised) 1. I am dealing with an application made by media organisations for access to material used in open court during the course of the trial. Implicit in the application is a right to publish the material or edit excerpts from it. The material consists of audio-visually taped evidence of a Crown witness and a transcript of that recording provided to the jury so they could better follow the recording. 2. In accordance with the invariable practice of the criminal courts in this State, approved by the Court of Criminal Appeal in R v NZ (2005) 62 NSWLR 628 [2005] NSWCCA 278, neither the recording nor the transcript were marked as exhibits. Equally in accordance with that decision and also with the practice approved by the High Court of Australia in Gately v The Queen (2007) 232 CLR 208; [2005] HCA 55 ("Gately"), the jury itself will not be permitted unsupervised access to the recording in the jury room when they retire to deliberate on their verdict. The transcript of the recording, as I have said, in accordance with the invariable practice of courts in this State, was provided purely as a guide or an aid to following the recording. It was withdrawn from the jury immediately at the conclusion of the recording and it will not be re-provided to them and, as I have said, and as I directed the jury, the transcript itself forms no part of the evidence in the trial. 3. I should also record that the trial commenced on 5 February 2018, some eight sitting days ago. The first two days were taken up with evidential rulings in advance of the empanelment of the jury. Since the jury has been empanelled and the evidence in the trial has properly commenced there have been 22 witnesses and 15 exhibits. There has been no previous request for access.