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Court of Criminal Appeal 2 December 2008

Attorney-General for NSW v Nationwide News Pty Limited (No 3)

[2008] NSWCCA 286

Public order & justice offences
PRACTICE CRIMINAL LAW PUBLIC INTEREST IMMUNITY OPEN JUSTICE PRINCIPLE

Citation: Attorney-General for NSW v Nationwide News Pty Limited (No 3) [2008] NSWCCA 286
Court: Court of Criminal Appeal, New South Wales
Date: 2 December 2008
Judge(s): Hodgson JA; Hislop J; Latham J

Background

This decision is the third instalment of proceedings between the Attorney-General for NSW and two major media organisations, Nationwide News Pty Limited and John Fairfax Pty Limited. The underlying dispute concerned the publication of portions of two judgments: the Court of Criminal Appeal's principal judgment delivered on 5 November 2007, and the Supreme Court judgment at first instance in the criminal trial of R v Donai.

Following the principal judgment, the Court imposed a temporary non-publication order over both decisions and invited submissions from the parties about its continuation. The parties subsequently agreed that the judgments could be published with certain passages omitted, and consent orders were made in March 2008 to that effect.

Before the consent orders expired in October 2008, the Attorney-General applied to make the non-publication regime permanent. The media respondents opposed that application, arguing there was no sufficient public interest justifying continued suppression.

  • Whether the non-publication orders over specified passages of the two judgments should be extended, varied, or made permanent.
  • Whether the public interest in suppressing material derived from confidential affidavits read on a voir dire (a preliminary hearing conducted in the absence of the jury to determine admissibility of evidence) outweighed the open justice principle.
  • Whether material that had also been disclosed in affidavits read openly retained a public interest in non-publication when it appeared in a different or more detailed context in the judgments.

Decision

Hodgson JA, with whom Hislop J and Latham J agreed, held that a substantial public interest exists in courts receiving full information when determining claims of public interest immunity. Because the contested material originated from confidential affidavits provided specifically for that purpose, the open justice principle applied with less force than it would to ordinary court proceedings.

The media respondents argued that passages derived from material also disclosed openly should not attract non-publication protection. Hodgson JA accepted there was force in this submission but rejected it. The judgment passages at issue contained greater detail than the openly-read affidavits, and the context in which that information appeared could amplify its impact.

The Court declined to make the orders permanent, finding that a two-year extension was the appropriate balance. The orders were to remain in force until 31 October 2010, with liberty for the Attorney-General to apply for a further extension before that date.

Orders Made

  • Specific identified passages in the Court of Criminal Appeal's principal judgment ([2007] NSWCCA 307) are not to be published, covering designated word ranges in paragraphs 11, 12, 13, 17, 40 and 44.
  • Specific identified passages in the first-instance judgment (R v Donai, unreported, Fullerton J, 2 October 2007) are not to be published, covering designated word ranges in numerous paragraphs.
  • Any publication of a specified quoted passage in the first-instance judgment must substitute pseudonyms "UC-2" and "UC-3" for identified words.
  • Orders to remain in force until 31 October 2010, or until resolution of any further extension application made before that date.
  • The confidential affidavit dated 24 September 2008 to be placed in a sealed envelope, accessible only on order of a Supreme Court Judge.
  • No order as to costs.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the open justice principle applies with reduced force to confidential information provided to a court solely for the purpose of determining a public interest immunity claim.
  • A substantial public interest exists in ensuring courts are fully informed when assessing public interest immunity, and that interest can justify continued suppression of material derived from confidential affidavits read on a voir dire.
  • Even where information appeared in affidavits read openly at some point, its reproduction in a judgment in greater detail or in a different context can independently sustain a public interest in non-publication.
  • Permanent suppression was not granted; the Court preferred a time-limited extension with a mechanism for further renewal, reflecting the need to keep proportionality under review.
  • Confidential affidavits filed in support of suppression applications may themselves be subject to strict access controls, including sealing by court order.

Legislation and Cases Referenced

Cases:
- Attorney-General for NSW v Nationwide News Pty Limited & Anor [2007] NSWCCA 307 (the principal judgment in this series of proceedings)
- R v Donai (unreported, Supreme Court, Fullerton J, 2 October 2007)

Legislation: No specific legislation was cited in the provided text.