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7
Court of Criminal Appeal 5 November 2007

Attorney-General for NSW v. Nationwide News Pty. Limited & Anor.

[2007] NSWCCA 307

Also reported as (2007) 73 NSWLR 635 178 A Crim R 301
Public order & justice offences
PRACTICE CRIMINAL LAW PUBLIC INTEREST IMMUNITY OPEN JUSTICE PRINCIPLE EXCEPTIONS TO OPEN JUSTICE PRINCIPLE

Citation: Attorney-General for NSW v Nationwide News Pty Limited & Anor [2007] NSWCCA 307
Court: NSW Court of Criminal Appeal
Date: 5 November 2007
Judge(s): Hodgson JA; Hislop J; Latham J

Background

The case arose in the course of a murder trial in which the prosecution relied on taped confessions obtained through a covert undercover police operation. Three undercover officers gave evidence, and the court had already made orders closing the court during their testimony and suppressing their identities.

The NSW Commissioner of Police applied for additional orders suppressing publication of designated parts of the trial evidence, including references to the nature and features of the undercover technique made both by the Crown Prosecutor in opening and by the trial judge during proceedings. Two major media organisations, Nationwide News Pty Limited and John Fairfax Pty Limited, opposed the application.

Fullerton J at first instance declined to make the suppression orders (other than for the names and pseudonyms of undercover operatives). The Attorney-General for NSW appealed to the Court of Criminal Appeal on behalf of the Commissioner of Police.

  • Whether public interest immunity principles can apply to evidence already given in open court proceedings, so as to justify suppression of its publication
  • Whether the open justice principle admits an exception to protect the confidentiality of undercover police methods used in future investigations
  • Whether suppression of the material was "necessary for the administration of justice"
  • What should happen to the confidential affidavits and the judgments themselves, given the sensitive material they contained

Decision

Hodgson JA (with Hislop J and Latham J agreeing) dismissed the appeal, upholding Fullerton J's refusal to suppress publication of the trial material.

The Court accepted the primary judge's approach that exceptions to the open justice principle are few and strictly defined, drawing on John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324. The Commissioner's argument that the correct approach was a general balancing exercise between open justice and the public interest in protecting police methods was rejected. The relevant question was whether the facts fell within a recognised exception to the open justice principle, and the Court was not satisfied that protecting the confidentiality of undercover police operations in future cases constituted such an exception.

On the further question of necessity, the Court accepted that publication would extend the currency of information about the technique to some degree. However, the primary judge had found that the design and use of the technique was already in the public domain, having been the subject of judicial commentary and press reporting in relation to Victorian and High Court decisions. The Court was not persuaded that suppression was necessary for the administration of justice.

Separately, the Court made orders protecting the confidential affidavits filed by the Commissioner in the voir dire application (the procedural hearing held in the absence of the jury). Hodgson JA noted that such applications can only be made with full candour if affidavits filed in support remain confidential. Both judgments were also subject to a six-month publication delay, given that they contained some information going beyond what had been disclosed at trial.

Orders Made

  • Appeal dismissed
  • Confidential affidavits to be placed in a sealed envelope and not accessed without the order of a Supreme Court judge
  • The judgment of Fullerton J and the Court of Criminal Appeal's judgment not to be published for a period of six months from 5 November 2007
  • Leave granted to the parties to make submissions within 28 days concerning orders 2 and 3, and concerning costs

Key Takeaways

  • Exceptions to the open justice principle are few and strictly defined; a general public interest balancing exercise is not the correct framework for determining whether publication of trial evidence should be suppressed
  • The protection of confidentiality in undercover police methods for future investigations did not, on the facts of this case, constitute a recognised exception to the open justice principle sufficient to justify suppression
  • Suppression of evidence already given at trial will only be ordered where it is "necessary for the administration of justice," a threshold the Commissioner of Police did not meet here
  • The fact that information about a police technique is already in the public domain through prior judicial decisions and press reporting is a material consideration when assessing the necessity of any suppression order
  • Confidential affidavits filed in support of public interest immunity applications during a voir dire may be sealed to protect their contents, preserving the ability of applicants to make such applications with full candour in future cases

Legislation and Cases Referenced

Cases:
- Attorney-General for New South Wales v Smith (1996) 86 A Crim R 308
- Jacobsen v Rogers (1995) 182 CLR 572
- John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344
- R v Fandakis [2002] NSWCCA 5
- R v Kwok [2005] NSWCCA 245; 64 NSWLR 335
- Re Application by Chief Commissioner of Police (Vic) for Leave to Appeal [2004] VSCA 3
- Scott v Scott [1913] AC 417
- Tofilau v The Queen [2007] HCA 39
- Witness v Marsden [2000] NSWCA 52; 49 NSWLR 429

Note: No specific legislation was cited in the available text of the judgment.