R v Gatt (No 5) [2018] NSWSC 447

Supreme Court New South Wales

Medium Neutral Citation: R v Gatt (No 5) [2018] NSWSC 447 Hearing dates: 10 April 2018 Date of orders: 11 April 2018 Decision date: 30 April 2018 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Access sought not granted. Catchwords: CRIMINAL LAW – practice and procedure – application by media to CCTV footage – CCTV footage capturing victim's death from gunshot wounds – open justice – fair reporting – administration of justice - potential prejudice to jury members – distress to family members – access denied Legislation Cited: Criminal Procedure Act 1986 (NSW), s 314 Cases Cited: R v Abdallah (No 3) [2015] NSWSC 121 R v Brewer (No 1) [2015] NSWSC 1471 John Fairfax Publications Pty Limited v District Court of NSW (2004) 61 NSWLR 344, [2004] NSWCA 324 Category: Procedural and other rulings Parties: Regina (Crown) Joseph Gatt (Accused) Representation: Counsel: Mr A Robertson (Crown) Mr P Boulten SC (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) The Law Practice (Accused) File Number(s): 2014/186944 Publication restriction: Nil

EX TEMPORE Judgment 1. During the course of the trial various media applications have been made and granted for leave to inspect or access exhibits in the proceedings, as provided for in the Court's Practice Note SC Gen 2, Supreme Court - Access to Court Files. 2. Two further applications for access to Exhibit 34, have been made by Kelly Fedor from Channel 9 and by Angus Thompson from Sydney Morning Herald. That exhibit is CCTV footage which captures Bassil Hijazi's death from gunshot wounds on the road which he ran down, after being shot and where he collapsed and died. That footage has been played in open court on a number of occasions, while different witnesses have given their evidence. 3. The parties opposed the leave sought being granted, such a grant of access permitting the footage to be copied and thereafter used in ways beyond the Court's control, including while the trial continues. 4. Having considered the applications, I am satisfied that the access sought must be refused, noting that both Adamson J in R v Abdallah (No 3) [2015] NSWSC 121 and Bellew J in R v Brewer (No 1) [2015] NSWSC 1471 came to similar conclusions to those which I have reached in this case, which raises similar questions for determination. 5. The exhibit does not fall within s 314(2) of the Criminal Procedure Act 1986 (NSW), which deals with media access to specified documents relating to criminal proceedings, but it does fall within the Practice Note, which envisages that some applications for access will be refused. 6. On these applications the open justice rule is an important consideration, as one matter of public interest which must be weighed in the balance, in determining whether the access sought should be granted. But there are other relevant considerations, which in my view, must also be considered, notwithstanding what was advanced as the reasons for the two applications, in respectively MFI 18 and MFI 19: MFI 18 "I would like to copy the CCTV for broadcast." "The material has been tendered in open court. The media are the eyes and ears of the public and have an obligation to produce fair and accurate reports of matters dealt with in open court. The material should be included in any fair and accurate report. Unless a suppression order exits, the normal procedure is for the media to be granted access to all exhibits tendered in open court. Nine understands the laws of contempt that apply in ongoing court proceedings and of the need for sensitivity when dealing with distressing images." MFI 19 "CCTV footage of deceased Bassil Hijazi running from carpark, show in court on 9/4/18 and 10/4/18. "To allow me to prepare an accurate and balanced report." 1. The footage is filmed from a distance, but it is still distressing viewing, particularly to those members of Bassil Hijazi's family who have been present in court. On one occasion already, the hearing has had to be adjourned because of the distress which was caused to those present when the footage was played. 2. It is a matter of common sense to expect that the media's use of these images of the last moments of Bassil Hijazi's life will attract public attention and potentially discussion, including on social media. 3. As the jury has been directed, jury members have to guard against being influenced, even unconsciously, by any such coverage or discussion of the trial. That is only likely to be made unnecessarily more difficult for the members of the jury, should the access sought to the exhibit be granted. As Adamson J observed in Abdallah at [22]: "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." 1. In this case, because of the discharge of one juror, the trial is proceeding with a jury of 11 and what is depicted in the exhibit is, as I explained, the last moments of Bassil Hijazi's life. 2. In all of these circumstances, I am well satisfied that it would not be consistent with the proper administration of justice to grant the access sought to Exhibit 34. Furthermore, to do so would unnecessarily add to the distress already caused to members of Bassil Hijazi's family, by the repeated playing in open court of these images. 3. As Spigelman J discussed in John Fairfax Publications Pty Limited v District Court of NSW (2004) 61 NSWLR 344, [2004] NSWCA 324 at [20] "Nothing should be done to discourage fair and accurate reporting of proceedings". 4. In this case, despite the refusal of the requests, the media remains free to report what is depicted in the footage. That is, in my view, in the circumstances sufficient to satisfy the community's interest in open justice and the fair and accurate reporting of these proceedings. 5. For these reasons I decline the access sought to Exhibit 34.