Citation: Application of Con Bodiotis, Khaleb Taleb and Ghassan Amoun [2013] NSWCCA 40
Court: Court of Criminal Appeal of New South Wales
Date: 8 February 2013
Judge(s): Davies J
Background
In May 2012, the Court of Criminal Appeal delivered judgment in OS1 v R [2012] NSWCCA 102, an appeal against sentence by a person identified only as OS1. Under the Court Suppression and Non-publication Orders Act 2010, publication of that judgment was restricted to the Crown and OS1 alone.
Three co-offenders of OS1, referred to here by their names in the application, subsequently sought to appeal their own sentences. Their appeals relied either on a parity argument (that their sentences were inconsistent with OS1's) or on questions about the discount OS1 received for assistance provided to authorities. To advance those arguments, their legal representatives needed access to the OS1 judgment.
The three applicants therefore applied under section 13 of the Act to have the non-publication order varied. Neither OS1 nor the Crown opposed limited access being granted to the applicants' legal advisers.
Legal Issues
- Whether the non-publication order restricting the OS1 judgment should be varied to allow the applicants' lawyers to access it
- Whether the interests of justice required that access, given the applicants' parity and assistance-discount grounds of appeal
Decision
Davies J noted that the sentencing court below had not made any suppression order over OS1's identity, but the Court of Criminal Appeal had treated that identity as a significant matter arising from the appeal and sentencing proceedings. The existing restriction on the judgment therefore reflected the Court's own assessment of the sensitivity of the material.
The court found that the interests of justice required the applicants' legal advisers to be able to read and consider what the Court had said about OS1's sentencing. Without access to that reasoning, the applicants could not fairly advance arguments about parity of sentencing or the proper discount for assistance.
Accordingly, the order was varied under section 13(3) to extend access in a carefully limited way. Publication remained restricted but was widened to include the lawyers appearing for each of the three applicants, solely for use in their respective applications for leave to appeal against sentence.
Orders Made
- The order restricting publication of the OS1 judgment was varied under s 13(3) of the Court Suppression and Non-publication Orders Act 2010
- Publication of the judgment remains restricted to the Crown and lawyers for OS1
- Publication is further extended, on a restricted basis, to lawyers appearing for Con Bodiotis, Khaled Taleb and Ghassan Amoun, and only for use in their applications to the Court of Appeal for leave to appeal against sentence
Key Takeaways
- Where co-offenders seek leave to appeal against sentence on parity grounds or in relation to an assistance discount, the interests of justice may require their legal representatives to access a judgment that is otherwise subject to a non-publication order.
- The Court of Criminal Appeal varied the existing restriction rather than lifting it entirely, preserving the protective purpose of the order while enabling the applicants to run their appeals.
- Access was granted in a strictly limited form: confined to the lawyers for the three applicants, and only for the specific purpose of those leave-to-appeal applications.
- Under s 13(3) of the Court Suppression and Non-publication Orders Act 2010, a court may vary a non-publication or restriction order where the interests of justice so require.
- A fourth co-offender who did not apply received no access, confirming that the variation operated only in response to the specific applications made.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 13, 13(3)
Cases
- OS1 v R [2012] NSWCCA 102