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Court of Criminal Appeal 4 August 2009

NAGI v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) (NO 2)

[2009] NSWCCA 198

Sexual offences
PRACTICE & PROCEDURE NON PUBLICATION ORDER APPEAL AGAINST REFUSAL OF NON PUBLICATION ORDER DISMISSED STAY OF ORDERS DISMISSING APPEAL

Citation: NAGI v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) (NO 2) [2009] NSWCCA 198
Court: NSW Court of Criminal Appeal
Date: 4 August 2009
Judges: Basten JA, Hulme J, Johnson J

Background

The applicant, a taxi driver, pleaded guilty in February 2009 to six counts of sexual assault on three women and was formally convicted in the District Court at Sydney before Bennett DCJ. Sentencing was adjourned, and in March 2009 certain events generated information potentially relevant to the sentencing exercise.

The applicant sought a non-publication order over that material. Bennett DCJ declined to make a permanent order, though he maintained interim confidentiality and adjourned sentencing to allow the applicant to seek review by the Court of Criminal Appeal. He considered it inappropriate to proceed with sentencing while the publication issue remained unresolved.

The matter came before the Court of Criminal Appeal on 24 July 2009. At the conclusion of argument, the applicant asked that, if the appeal were dismissed, the Court preserve the existing confidentiality arrangements so that he could pursue a further application for special leave to appeal to the High Court.

  • Whether the Court of Criminal Appeal should grant leave to appeal against Bennett DCJ's refusal of the non-publication order, and whether that appeal should succeed
  • Whether, upon dismissing the appeal, the Court should stay its own orders to preserve confidentiality while a special leave application to the High Court was pending
  • What ancillary publication restrictions were necessary to give effect to any stay

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, concurrently delivering its reasons in a separate principal judgment. Those reasons are not reproduced here; this judgment addresses only the ancillary question of what orders should accompany that outcome.

Following the approach endorsed by Brennan J in Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681, the Court held that it should consider whether to stay its orders pending any special leave application to the High Court. It concluded a stay was appropriate, consistent with the course taken by Bennett DCJ when he adjourned sentencing pending the appeal.

Because the principal judgment itself referred to the material for which confidentiality was sought, a stay of the orders alone was insufficient. The Court also restricted publication of the principal judgment during the stay period, subject to limited exceptions for the administration of justice and any publication made with the applicant's prior written consent.

The stay and publication restriction were time-limited: they would expire 28 days after pronouncement if no special leave application was filed, or upon disposal of any such application by the High Court. The Court expressly noted that the ancillary orders in this judgment did not restrict publication of this judgment itself. Special leave was ultimately refused by the High Court on 28 May 2010.

Orders Made

  • Stay of the orders made in the principal judgment, until the later of: (a) expiry of 28 days from pronouncement if no special leave application is filed and served; or (b) disposal by the High Court of any special leave application that is filed and served within that period
  • Prohibition on publication of the principal judgment and orders while the stay is in force, subject to exceptions for: (a) publication necessary for the further administration of justice in the sentencing proceedings and any High Court proceedings; and (b) publication by or on behalf of the applicant with his prior written consent
  • Liberty to apply granted to both the Director of Public Prosecutions and the applicant to seek variation of the stay and publication orders on three days' notice
  • Direction that any permitted publication of the principal judgment during the stay period be accompanied by a copy of this judgment
  • Note that none of the ancillary orders prevented or limited publication of this judgment and its orders

Key Takeaways

  • In dismissing an appeal against a refusal of a non-publication order, the Court of Criminal Appeal held that a stay of its own orders was appropriate to preserve the position while the applicant considered a special leave application to the High Court.
  • The practice endorsed in Jennings Constructions applies: a court should turn its mind to whether a stay is warranted pending a foreshadowed application for special leave, and may grant one where the circumstances justify it.
  • Where the judgment under appeal itself contains the confidential material in dispute, restricting publication of that judgment becomes a necessary adjunct to any stay of the substantive orders.
  • A publication prohibition during a stay period may be framed with targeted exceptions, including publication necessary for the administration of justice and publication made with the affected party's consent.
  • Special leave to appeal was ultimately refused by the High Court (s218/2009, 28 May 2010), bringing the stay and associated publication restrictions to an end.

Legislation and Cases Referenced

Cases:
- Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [No 1] [1986] HCA 84; 161 CLR 681

Rules:
- High Court Rules, r 41.03.1