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Court of Criminal Appeal 23 August 2013

Matthews v R (No 2)

[2013] NSWCCA 194

Public order & justice offences
PRACTICE AND PROCEDURE JUDGMENTS AND ORDERS NON PUBLICATION ORDERS OPEN JUSTICE COURT SUPPRESSION AND NON

Citation: Matthews v R (No 2) [2013] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 23 August 2013
Judges: Hoeben CJ at CL, Leeming JA and Beech-Jones J

Background

Following the dismissal of his conviction and sentence appeals on 14 August 2013, the appellant lodged a submission requesting that the Court's principal judgment be withheld from the Caselaw website and that a non-publication order be made over certain content. The submission was signed by both the appellant and his "McKenzie Friend" (an assistant who helped him at the hearing but was not permitted to speak).

The request identified three areas of concern: the reputational impact on the McKenzie Friend of being named in the judgment; the risk to the appellant's safety in custody arising from the publication of his prior convictions, including sexual offences; and a perceived threat to the appellant and his family from co-offenders and associates if personal details were published.

The Court treated this as an application for a non-publication order under the Court Suppression and Non-publication Orders Act 2010, which restricts but does not necessarily prohibit publication entirely.

  • Whether a non-publication order was necessary under s 8(1) of the Court Suppression and Non-publication Orders Act 2010 to protect the McKenzie Friend's reputation and standing
  • Whether the risk to the appellant's safety in custody from publication of his prior convictions satisfied the threshold for a non-publication order
  • Whether the alleged threat from co-offenders and associates provided a proper basis for restricting publication of the principal judgment
  • What role the open justice principle plays in the exercise of the Court's power to make non-publication orders

Decision

The Court refused the application in full. It reaffirmed that s 6 of the Act requires courts to treat open justice as a primary objective, and that non-publication orders are exceptional measures available only where an order is shown to be "necessary" to protect a recognised interest. Convenience, reasonableness, or common sense are insufficient to meet that threshold.

On the prior convictions, the Court accepted that wide dissemination of such material within a prison could theoretically create a safety risk. However, all of that material had been tendered and discussed in open court during both the sentencing proceedings and the appeal. Because it had already been publicly ventilated without restriction, no necessary basis for limiting further publication was demonstrated.

Regarding the McKenzie Friend, the Court noted that her role went beyond that of a passive observer, having been granted by leave of the Court. That role was performed in open court, and the principle of open justice required the judgment to record it accurately. Any reputational consequences flowing from publication were held to be legally irrelevant in the circumstances.

On the threat from co-offenders, the Court observed that those individuals had themselves given evidence against the appellant at trial, making it more likely they held safety concerns of their own rather than posing a threat. All relevant details had already been aired in open court at the trial, and no appreciable increase in risk to the appellant could be attributed to publication of the principal judgment.

Orders Made

  • The application for a non-publication order was refused.

Key Takeaways

  • Under the Court Suppression and Non-publication Orders Act 2010, a non-publication order is only available where it is "necessary" to protect an identified interest, not merely convenient, reasonable, or sensible.
  • The Court of Criminal Appeal confirmed that open justice is a primary objective of the administration of justice under s 6 of the Act, and that non-publication orders should be made only in exceptional circumstances.
  • Prior convictions and sensitive sentencing material that were ventilated in open court without restriction do not automatically attract non-publication protection simply because later publication might harm the subject's reputation or safety in custody.
  • Where a person performs a role in open court proceedings by leave of the court, that role may properly be recorded in a published judgment, and reputational consequences for that person do not, of themselves, constitute grounds for a non-publication order.
  • Placing a judgment on the Caselaw website is administratively separate from "publication" in the formal legal sense; withholding a judgment from the website pending further consideration does not constitute a non-publication order under the Act and does not prevent parties from reproducing the judgment subject to contempt laws.

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6, 8

Cases
- Matthews v R [2013] NSWCCA 187 (the principal judgment)
- Rinehart v Welker [2011] NSWCA 403
- D1 v P1 [2012] NSWCA 314
- Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 263 FLR 211
- McKenzie v McKenzie [1970] 3 All ER 1034