Citation: John Fairfax Publication Pty Limited v MSK MMK MRK MAK & Regina [2006] NSWCCA 356
Court: NSW Court of Criminal Appeal
Date: 1 November 2006
Judge(s): Spigelman CJ, Basten JA, Hislop J
Background
A media publisher brought an application before the Court of Criminal Appeal, seeking to participate in or challenge aspects of proceedings involving four individuals identified only by initials. The underlying proceedings originated in the Supreme Court before Sully J and Hidden J, with lower court decisions dating from June 2003 and May 2005.
The applicant filed a further application dated 7 August 2006. As part of that application, questions arose about the publisher's entitlement to be heard, the competency of the application itself, and the admissibility of expert evidence including a report from Professor Finlay and a responding report from Dr Chapel.
The Court was asked to determine how to manage these preliminary matters, including whether to deal with them separately and in what order.
Legal Issues
- Whether the questions of the applicant's standing and the competency of its application should be heard and determined separately, and in advance of all other issues
- Whether the admissibility of expert evidence (the Finlay and Chapel reports) should also be determined at the preliminary stage
- What power the Court could exercise to order the separate determination of issues, given there is no express rule dealing with that question
Decision
Spigelman CJ, with Basten JA and Hislop J agreeing, held that the Court had power under r 77 of the Criminal Appeal Rules to order the separate determination of identified issues, even in the absence of an express rule specifically addressing that question.
The Court ordered that the questions of the applicant's standing and the competency of its August 2006 application be heard and determined separately, and before all other issues in the proceeding. This reflected a practical case management approach, resolving threshold questions before engaging with the merits.
The Court declined to include the admissibility of expert evidence in the preliminary hearing. Spigelman CJ identified two reasons: first, proceeding to that question would leave the bench part-heard, with no clear prospect of the same bench being reconvened. Second, no written submissions had been filed addressing admissibility, and the issue raised difficult questions about expert evidence that had not been the subject of any argument seeking to justify the reception of Professor Finlay's report.
The preliminary questions were therefore confined to jurisdiction and standing alone.
Orders Made
- The questions of the standing of the applicant and the competency of the application dated 7 August 2006 be heard and determined separately and in advance of all other issues in the proceeding (Order 2 from the application dated 31 October 2006)
Key Takeaways
- The Court of Criminal Appeal confirmed that r 77 of the Criminal Appeal Rules provides a basis for ordering the separate determination of issues, even where no express rule specifically addresses that procedure.
- Threshold questions of jurisdiction and standing are appropriate candidates for separate preliminary determination, allowing those issues to be resolved before the court engages with substantive matters.
- The absence of written submissions on a contested evidentiary question, combined with the practical difficulty of reconstituting a part-heard bench, were sufficient reasons to exclude admissibility from the preliminary hearing.
- Procedural orders of this kind reflect the court's inherent case management function, here applied to confine an initial hearing to its most efficient scope.
- No findings were made on the merits of the publisher's standing, the competency of the application, or the admissibility of the expert evidence. Those questions remained for future determination.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Rules (NSW), r 77
Cases cited: None identified in the provided text.