R v Kirkman (No 2)

[2019] NSWSC 1861

Supreme Court

New South Wales

Medium Neutral Citation:	R v Kirkman (No 2) [2019] NSWSC 1861
Hearing dates:	18 December 2019
Date of orders:	18 December 2019
Decision date:	18 December 2019
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	No media access to the file
Catchwords:	CRIMINAL LAW – judge-alone murder trial – application by media for access to exhibits – open justice principle – broad discretion – application for access refused
Cases Cited:	R v Wran [2016] NSWSC 1026
Category:	Procedural and other rulings
Parties:	Regina (Crown) Bhanu Alan William Kirkman (Accused)
Representation:	Counsel: D Scully (Crown) M Betts, Solicitor (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2018/307148

EX TEMPORE JUDGMENT – REVISED

Application by media for access to exhibits in murder trial

1. An application has been made by the media for access to, as I understand it, some but not all of the exhibits in this murder trial. I believe there is a broad discretion reposed in me in that regard: R v Wran [2016] NSWSC 1026.

2. Speaking generally, undoubtedly there is an interest in open justice. And the fact is that a “documentary” procedure was adopted in this judge-alone trial, as opposed to witnesses giving oral evidence in the witness box.

3. Having said that, the Crown prosecutor has explained not only that there are real addresses (or at least seemingly real addresses) of persons contained in some of the material, but also members of the family of the deceased have deliberately kept from themselves the precise details of what occurred; indeed, to the extent of leaving the courtroom when I was orally summarising the written evidence that was being placed before me.

4. Another aspect is that the deceased was killed in the presence of a five-month-old baby boy. I think it is incumbent upon me, to the extent that I am able, to reduce the trauma that he is going to suffer for the rest of his life as a result of all of this.

5. The fact is that, years ago, if something was in the media it was simply on the television news for 30 minutes or so, and thereafter very largely disappeared. If it was in a newspaper, it was only to be found after the next day in a public library. In other words, one would rarely be able to track it down.

6. Things have changed. It is well known that, by way of YouTube and other websites, once something is transmitted or promulgated nowadays it is there forever, and furthermore one lives with the knowledge that it is there forever.

7. There is no question of the crime scene photos being available, let alone them being transmitted or promulgated.

8. The same applies to the sketch plan created by the police of the scene of the fatal acts.

9. I think there is more of a question with regard to other exhibits. But it is to be remembered that I provided quite detailed summaries openly in court (with the agreement of the parties) of what I regarded as the relevant material in the documentary exhibits that were placed before me.

10. I think the point is soundly made that the details of this matter are horrific. I appreciate that many have sought, in the interests of their own well-being, to insulate themselves from those details as best they can. I think the knowledge that those details are not only to be made public but forever remain a click away, as it were, on the internet simply outweighs my initial thought that there should be some access by the media to the details of the documentary exhibits.

11. I might add that I have not heard from any lawyer representing the media. It is possible that the media might seek to re-agitate the question in open court. I am open to that. That would require, I believe, representation by the Crown and on behalf of the accused on an urgent basis if that were to be sought.

12. To repeat: there is no fetter on the media reporting in detail all that has occurred in open court, including my detailed summaries of the evidence. But in the unusual circumstances of this case, and as an exercise of discretion, I do not propose – at this stage at least – to permit access to the file.

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