Citation: R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May (No 3) [2016] NSWSC 1864
Court: Supreme Court of New South Wales
Date: 6 October 2016
Judge(s): Rothman J
Background
This decision arose as an interlocutory application during a criminal trial before the Supreme Court. The Crown applied for a suppression order in relation to a witness it intended to call, seeking to prevent publication of that witness's name, address, and any other identifying information.
The basis for the application was that the witness had provided a statement to police and assisted in their investigations. Critically, that assistance had been given under an express inducement: police promised to protect the witness's identity and to ensure the safety of both the witness and their family.
The application was not seeking to suppress the witness's evidence itself. The public would still be able to hear what the witness said in court. The only question was whether the witness's identifying details could be kept from publication.
Legal Issues
- Whether the Supreme Court had power under the Court Suppression and Non-Publication Orders Act 2010 to suppress the name and identifying details of a Crown witness during a criminal trial.
- Whether the circumstances satisfied the statutory grounds required to justify making such an order.
- Whether a suppression order limited to identifying information, rather than the substance of the evidence, struck an appropriate balance with the public's right to be informed.
Decision
Rothman J confirmed that the Supreme Court holds power under section 7 of the Court Suppression and Non-Publication Orders Act 2010 to make suppression orders, but emphasised that such orders are reserved for exceptional circumstances. The principle of open justice means the public ordinarily has the right to access evidence adduced in proceedings.
The court was satisfied, however, that the narrow scope of the order sought was significant. Because the suppression applied only to the witness's name, address, and other identifying details, the substance of the evidence would remain public. The public's right to know what was being said in court was therefore preserved.
On the evidence before the court, Rothman J found that the witness had cooperated with police specifically on the basis of a promise that their identity would be protected. The court was satisfied that two statutory grounds under section 8 of the Act were met: the order was necessary to prevent prejudice to the proper administration of justice, and to protect the safety of the witness and their family. The public interest also supported the order on those facts.
Orders Made
- The name of the Crown witness must not be published.
- The address of the Crown witness, any family members of the witness, or any matter that would identify the witness's name, address, or phone number must not be published.
Key Takeaways
- Suppression orders under the Court Suppression and Non-Publication Orders Act 2010 are available to protect witness identity in criminal proceedings, but are granted only in exceptional circumstances given the strong public interest in open justice.
- A suppression order confined to identifying information (name, address, and similar details), rather than the substance of the evidence, is less likely to conflict with the public's right to know what occurs in court.
- Under section 8 of the Act, the need to prevent prejudice to the administration of justice and to protect the physical safety of a person and their family can each independently ground a suppression order.
- Where a witness cooperated with police under an express promise of identity protection, that undertaking weighs in favour of satisfying the statutory grounds for suppression.
- Sufficient public interest considerations supported the order in this case, reinforcing that witness safety and the integrity of investigations are recognised concerns under the Act's framework.
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7 and 8
Cases cited:
No cases were cited in this decision.