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Court of Criminal Appeal 9 May 2012

Da Silva v R (No 2)

[2012] NSWCCA 106

Other
CRIMINAL LAW INTERLOCUTORY APPLICATION COURT SUPPRESSION AND NON

Citation: Da Silva v R (No 2) [2012] NSWCCA 106
Court: Court of Criminal Appeal, New South Wales
Date: 9 May 2012
Judge(s): Whealy JA; Hidden J; Schmidt J

Background

The NSW Commissioner of Police applied to the Court of Criminal Appeal for suppression and non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW). The application arose during proceedings involving an appeal by Roy Da Silva, in which evidence included a record of interview conducted on 10 August 2011.

The interview contained questions and answers, specifically questions 54 to 58, in which Da Silva described receiving a monetary payment through what the Court loosely characterised as a "reward" application. Such arrangements, the Court noted, are not uncommon: police may apply for a monetary reward on behalf of a witness in appropriate cases, with the payments relating to the preservation of a witness's safety.

The Commissioner sought to suppress both the content of that portion of the interview and any mention of the precise reward amount in court argument, evidence, or any judgment issued by the Court.

  • Whether the proposed non-publication order satisfied the statutory test under s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), namely that the order was "necessary to prevent prejudice to the proper administration of justice"
  • Whether the publication of specific reward amounts paid to witnesses would indirectly reveal police methodology in a way that met that statutory threshold

Decision

Whealy JA delivered an ex tempore (on-the-spot) judgment, with Hidden J and Schmidt J both agreeing. The Court examined the affidavit of Commissioner Peter Barrie, which set out the police concerns in detail.

Commissioner Barrie identified four specific risks arising from publication. First, disclosure of reward amounts would indirectly reveal police methodology regarding the value placed on particular types of information. Second, it could create expectations among potential future sources about what they should receive. Third, it might deter witnesses from providing information unless a specific reward was guaranteed. Fourth, existing sources who learned of amounts paid to others might become dissatisfied and withdraw their cooperation with police.

Whealy JA held that each of those concerns separately satisfied the requirement in s 8(1)(a) that publication would prejudice the proper administration of justice. On that basis, the Court made the order in the terms set out in the Short Minutes of Order provided to the Court.

Orders Made

• A suppression and non-publication order is made preventing publication of evidence contained in questions 54 to 58 of the record of interview given by Mr Roy Da Silva on 10 August 2011, relating to a monetary reward given to him for providing evidence.

• A non-publication order is made preventing any mention of the precise amount of the reward in evidence before the Court, in any judgment given by the Court, or in any argument in Court.

Key Takeaways

  • The Court of Criminal Appeal confirmed that protecting police reward methodology from indirect disclosure can satisfy the "necessary to prevent prejudice to the proper administration of justice" test under s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW).
  • Suppression orders are available not only where direct harm is demonstrated, but where publication would indirectly reveal sensitive operational information, such as the monetary value police place on specific categories of intelligence.
  • Under the Court Suppression and Non-publication Orders Act 2010 (NSW), a court granting a suppression order must state the ground on which the order is made; here, the Court expressly identified s 8(1)(a) as that ground.
  • Potential harm across multiple dimensions, including deterring future sources, creating expectations of payment, and causing dissatisfaction among existing sources, each independently supported the making of the order rather than being considered cumulatively.
  • The decision illustrates that suppression orders in criminal proceedings can extend beyond protecting named individuals to shielding systemic law enforcement processes from public disclosure.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 11

Cases cited: None cited in the judgment.