Citation: Attorney-General for NSW v Nationwide News Pty Limited & Anor [2007] NSWCCA 324
Court: New South Wales Court of Criminal Appeal
Date: 19 November 2007
Judge(s): Hodgson JA
Background
The Attorney-General for NSW sought to extend interlocutory relief that had been granted pending the Court of Criminal Appeal's determination of an earlier matter. The respondents were two major media organisations. At the heart of the dispute was whether certain information relating to a criminal conviction could be published.
When the Court of Criminal Appeal delivered its decision in the substantive matter, Hodgson JA extended interlocutory relief on a short-term basis until 19 November 2007. The Attorney-General then returned to court seeking a further extension, to last until the determination of a proposed application for special leave to appeal to the High Court and, if granted, until the final disposal of that appeal.
The Attorney-General's concern was that, without continued suppression, any High Court appeal would be rendered effectively pointless in relation to this specific case, as the information would already have been made public.
Legal Issues
- Whether the Court of Criminal Appeal should extend interlocutory relief to preserve the position pending an application for special leave to appeal to the High Court.
- Whether the balance of convenience favoured granting the extension.
- Whether the proposed appeal had sufficiently strong grounds to justify ongoing restraint on publication.
Decision
Hodgson JA acknowledged the principle drawn from Sibuce Pty Ltd v Shaw (No.2) that the Court of Appeal should not feel inhibited from granting a stay pending a special leave application, rather than leaving that task to the High Court. However, his Honour noted this principle does not prevent a court from concluding, in a particular case, that the better course is to leave the High Court to assess whether prospects of success warrant a stay.
On the balance of convenience, Hodgson JA found considerations operating in both directions. The information in question was already substantially in the public domain, which diminished, though did not eliminate, the significance of any further release. Against that, the respondents pointed to a legitimate public interest in knowing, at a timely moment, the basis on which a criminal conviction had been reached. If the information remained suppressed, that opportunity would be permanently lost.
Hodgson JA concluded that, in these circumstances, he would only be prepared to extend the injunction until final appeal determination if the proposed appeal had strong grounds. While he declined to characterise the appeal as unreasonable, his own assessment was that it did not carry a strong chance of success. He recognised, however, that a High Court judge might assess the prospects differently.
On that basis, Hodgson JA granted only a brief further extension, until 29 November 2007, to afford the Attorney-General an opportunity to approach the High Court directly for a stay.
Orders Made
- The discharge of the order made on 3 October 2007 was stayed until 29 November 2007, with the order made on 3 October 2007 to cease to be effective from 30 November 2007.
Key Takeaways
- The Court of Criminal Appeal confirmed that it is not inhibited from granting a stay pending a special leave application to the High Court, following Sibuce Pty Ltd v Shaw (No.2) (1988) 13 NSWLR 125, but noted this does not compel such relief in every case.
- Where the balance of convenience is not clearly in favour of the applicant, a court may require the proposed appeal to have strong grounds before extending interlocutory suppression relief.
- An appeal assessed as not unreasonable, but lacking strong prospects of success, was insufficient to justify extended interlocutory relief in this matter.
- The fact that information is already substantially in the public domain is a relevant factor weighing against the balance of convenience, even if it does not entirely eliminate the significance of further disclosure.
- Competing public interests, including the public's interest in understanding the basis of a criminal conviction at a timely moment, are material considerations in assessing whether interlocutory relief should be maintained pending appellate proceedings.
Legislation and Cases Referenced
Cases:
- Sibuce Pty Ltd v Shaw (No.2) (1988) 13 NSWLR 125
Legislation:
No specific legislation was cited in the text of the decision.