Citation: Einfeld v R (No 2) [2008] NSWCCA 243
Court: New South Wales Court of Criminal Appeal
Date: 14 October 2008
Judge(s): Bell JA, Hulme J, Latham J
Background
The applicant, a former judge, had been committed for trial in the District Court on nine counts, including six charges of doing an act with intent to pervert the course of justice. He sought to have five counts quashed and applied for an adjournment of twelve months on the basis of intense pre-trial publicity. Both applications were dismissed by James J, the designated trial judge.
The applicant then sought leave to appeal against the refusal to quash counts 1 to 5. When that appeal came before the Court of Criminal Appeal, both parties applied for a non-publication order covering the appeal proceedings, and the Court granted it. The principal appeal was subsequently decided in Einfeld v R [2008] NSWCCA 215.
Following delivery of judgment, the Court reconstituted to hear submissions on whether the non-publication order made on 17 June 2008 should continue. By that stage, the trial was fixed to commence on 3 November 2008, and the Crown had indicated it intended to proceed on counts corresponding to counts 6 to 9, with evidence from counts 1 to 5 to be led under the tendency and coincidence provisions of the Evidence Act.
Legal Issues
- Whether the non-publication order should be continued in light of the upcoming trial
- Whether the material discussed in the principal judgment gave rise to a real risk of prejudice sufficient to justify departure from the open justice principle
- How to balance the principle of open justice against the right to a fair trial
Decision
Bell JA, with Hulme and Latham JJ agreeing, applied the foundational principle that the administration of justice must take place in open court. The court drew on McHugh J's statement in John Fairfax and Sons Limited v Police Tribunal of NSW that a non-publication order is valid only if "really necessary to secure the proper administration of justice." Exceptions to open justice are few and strictly defined.
The applicant's counsel argued that dissolving the order would undermine the trial judge's own non-publication order. The Court rejected this framing. Bell JA held that the Court of Criminal Appeal should not approach the question of a non-publication order on appeal as though it were constrained by the trial judge's earlier order. The relevant question was simply whether continuation was necessary to secure a fair trial.
The Crown submitted that no exceptional circumstances justified continuing the order, and the applicant's counsel could not point to any specific prejudice. Counsel acknowledged that nothing in the principal judgment referred to material that had not already been in the public domain.
Bell JA also drew on authority confirming that jurors are not to be treated as exceptionally fragile or prone to prejudice. Trial judges have consistently affirmed that jurors follow their oaths and act on the directions they receive. The possibility that jurors may encounter irrelevant or prejudicial information is an inherent feature of criminal trials, and the law proceeds on the basis that juries will nonetheless return a verdict based on the evidence. Finding no feature of the case that made non-publication necessary for a fair trial, the Court dissolved the order.
Orders Made
- The non-publication order made on 17 June 2008 is dissolved.
Key Takeaways
- A non-publication order in criminal proceedings will only be valid where it is genuinely necessary to secure the proper administration of justice; the test is one of necessity, not mere desirability.
- Open justice is one of the most fundamental principles of the Australian legal system, and departures from it are to be treated as exceptional and strictly limited.
- The Court of Criminal Appeal confirmed that it is not constrained by a trial judge's non-publication order when independently assessing whether such an order should apply to appellate proceedings.
- Jurors are not regarded by the law as inherently susceptible to media publicity; the legal system proceeds on the footing that juries will follow judicial directions and decide cases on the evidence before them.
- Where a party seeking continuation of a non-publication order cannot identify specific prejudice, and the material at issue has already been in the public domain, the high public principle of open justice will ordinarily prevail.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Criminal Procedure Act 1986 (NSW), s 128
- Evidence Act 1995 (NSW), ss 97, 98
- Crimes Act 1900 (NSW), s 319
Cases
- Einfeld v R [2008] NSWCCA 215
- John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324, 61 NSWLR 344
- John Fairfax and Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465
- R v Glennon (1992) 173 CLR 592