R v Dawson

HIS HONOUR: Section 291C of the Criminal Procedure Act 1986 provides as follows:

In the course of evidence given by a witness referred to as “JC”, I directed pursuant to s 291(3) of the Criminal Procedure Act that certain parts of her evidence be given in camera. That section is relevantly in these terms:

An application has now been made by a media representative for access “to view or hear a record of that evidence”.

On the first day of the trial, I refused an application by the Crown and the accused for an order suppressing all publication of these proceedings: see R v Dawson [2022] NSWSC 555. The application proceeded upon the basis that there was a prospect that the evidence in the trial, if it were not suppressed, might possibly imperil the integrity of different proceedings faced by the accused in the District Court later this year.

In the course of that application, I was asked to give separate consideration to an order suppressing all of the evidence of JC or alternatively all evidence in which any reference were made to matters possibly affecting or influencing the course of the District Court proceedings. As will be apparent, I declined to make such an order, principally because of the impracticalities associated with doing so.

However, no part of my decision foreclosed the Crown’s entitlement to make an application to hear part of JC’s evidence in camera. That application is a discrete sub-set of the earlier broader application and as such considerably more limited and correspondingly easier to accommodate.

Without descending into the detail of the evidence given by JC in camera, it is sufficient to observe that it was potentially of direct relevance to the District Court proceedings. Having regard to the anticipation that those proceedings will be heard by a jury, I consider that it is not in the interests of justice to permit the media representative to view or hear a record of that evidence. Any prospect that the evidence might be given public attention would in my view be unfair to the accused and carries with it the possibility of irremediable prejudice.

It was drawn to my attention that the media representative was prepared to refrain from publication of the evidence until after the completion of the District Court proceedings. Two things may be said about that. First, if there were no current imperative to utilise the evidence for commercial purposes, there could be no complaint about any interference with the concept of open justice that any order refusing access to the evidence might appear to cause. Secondly, it is highly likely that the evidence in question will in any event be given in or to the same effect by JC in the District Court, at which time it will be in the public domain and available for publication without limitation. Accordingly, an order permitting the media representative to view or hear the in camera evidence before then does not appear to me to have significant or obvious utility.

In my opinion, the media representative’s application to view or hear a record of JC’s evidence in camera should be refused.