Citation: R v Popovic; R v Koloamatangi (No 1) [2017] NSWSC 1017
Court: Supreme Court of New South Wales
Date: 2 August 2017
Judge: N Adams J
Background
Two accused persons faced a retrial for the murder of a man shot outside a Wollongong nightclub on 8 September 2007. They had previously been convicted at a 2014 jury trial, but the Court of Criminal Appeal quashed those convictions in September 2016 and ordered a new trial. The retrial was listed to commence on 31 August 2017.
The Crown case relied in part on two informer witnesses, each granted indemnities from prosecution in exchange for giving evidence. Both witnesses had given evidence under their own names at the original committal proceedings and at the first trial. Following the quashing of the convictions, both witnesses were named in the published CCA judgment, though that judgment was subsequently restricted.
The NSW Commissioner of Police applied for orders suppressing the identities of both witnesses, requiring them to give evidence under pseudonyms, closing the court during their evidence, and limiting cross-examination about security arrangements put in place for their protection.
Legal Issues
- Whether suppression and non-publication orders should be made under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) to protect the identities of two Crown informer witnesses
- Whether the court should be closed for the duration of those witnesses' evidence under s 8 of that Act
- Whether pseudonyms should be used for the witnesses in open court proceedings
- Whether cross-examination should be restricted under s 130 of the Evidence Act 1995 (NSW) to exclude questions about security measures taken for the witnesses' ongoing protection
- Whether pre-trial suppression orders made in earlier proceedings bound the trial judge under s 130A of the Criminal Procedure Act 1986 (NSW)
Decision
Adams J granted all of the Commissioner's substantive orders. The court accepted that police held grave fears for the safety of both witnesses, with the bases for those concerns set out in a confidential affidavit provided only to the court. The judge was satisfied that the necessary statutory grounds for suppression were met, including that the orders were necessary to prevent prejudice to the proper administration of justice and were otherwise necessary in the public interest.
The court noted that both witnesses had already given evidence under their own names in earlier proceedings, and that their names appeared in the original (though subsequently restricted) CCA decision. However, the Commissioner's evidence indicated that circumstances had materially changed since the first trial, with the risk to both witnesses assessed as real, significant, recent and ongoing. The court was satisfied this development justified the orders even in circumstances where the witnesses would attend and give evidence in person rather than by audiovisual link.
The defence raised concerns that using pseudonyms throughout the trial without explanation to the jury would prejudice the accused. The court acknowledged the competing interests in open justice and a fair trial but ultimately concluded the safety concerns were sufficiently serious to outweigh those interests. The court adopted a practical approach: the witnesses would be referred to by pseudonym ("Witness C" and "Witness D") in open court, but could be referred to by their real names once the court was closed, so as to assist defence counsel in conducting cross-examination.
On the question of pre-trial orders, the court noted that suppression orders made by Harrison J in February 2017 (and confirmed by the CCA in May 2017) had continuing effect under s 130A of the Criminal Procedure Act, unless a trial judge determined it would not be in the interests of justice for them to remain binding. Adams J made fresh orders consistent with and building upon those earlier orders.
Orders Made
- The identities of both Crown witnesses ("Witness C" and "Witness D") suppressed under s 7 of the Court Suppression and Non-Publication Orders Act 2010, on grounds including necessity to prevent prejudice to the proper administration of justice, protection of safety, and public interest. Orders to apply throughout the Commonwealth.
- Any visual or other description or depiction of the physical appearance or identifying features of the Crown witnesses permanently suppressed, subject to what is necessary for the proper conduct of the proceedings.
- The court to be closed for the entirety of both witnesses' evidence, with attendance limited to: the accused and their legal representatives; the prosecution; NSW Police Force investigators; the Commissioner's legal representatives; Corrective Services and Sheriff's Office staff; and court staff.
- In closed court, the witnesses may be referred to by their real names.
- In open court and in documents prepared for the proceedings, the witnesses to be referred to by the pseudonyms "Witness C" and "Witness D" respectively.
- Cross-examination of the Crown witnesses and NSW Police Force officers managing them restricted under s 130 of the Evidence Act 1995 to exclude questions about: residential location and employment details of the witnesses or their families; whether they or their families have relocated; whether relocation monies were provided; and details of or monies spent on any security measures.
- The confidential affidavit relied upon by the Commissioner to be returned to the Commissioner's legal representatives at the conclusion of the application, subject to an undertaking to make it available to the court as required.
Key Takeaways
- Under s 7 of the Court Suppression and Non-Publication Orders Act 2010, a court may suppress the identity of a witness where suppression is necessary to prevent prejudice to the proper administration of justice, to protect a person's safety, or is otherwise in the public interest. All three grounds were engaged here.
- A material change in the risk assessment for an informer witness since a previous trial can justify protective orders in a retrial, even where the witness gave evidence in their own name at earlier proceedings.
- Pre-trial suppression orders made by a judge in proceedings on indictment bind the trial judge under s 130A of the Criminal Procedure Act 1986 unless the trial judge is of the opinion that maintaining them would not be in the interests of justice.
- The confidential affidavit procedure, by which a commissioner's affidavit addressing sensitive safety concerns is provided to the court only, was applied without objection and is consistent with established practice in comparable applications.
- Under s 130 of the Evidence Act 1995, cross-examination of witnesses and police can be restricted to exclude questions about protective security arrangements, where disclosure of such information could itself endanger the witness.
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8
- Criminal Procedure Act 1986 (NSW), s 130A
- Evidence Act 1995 (NSW), s 130
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Cases:
- Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202
- R v Wiggins; R v Nikolovski [2017] NSWSC 266
- Commissioner of Police v Nationwide News (2007) 70 NSWLR 643; [2007] NSWCA 366
- Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
- John Fairfax Publications Pty Limited & Anor v District Court of New South Wales & Ors (2004) 61 NSWLR 344; [2004] NSWCA 324
- R v Hawi & Ors (No 6) [2011] NSWSC 1652
- Hawi & Ors (No 2) [2011] NSWSC 1648
- Attorney General v Kaddour & Turkmani [2001] NSWCCA 456
- Cain v Glass (No 2) (1985) 3 NSWLR 230
- Jarvie v The Magistrates Court of Victoria [1995] 1 VR 84
- R v Lodhi (2006) 65 NSWLR 573; [2006] NSWCCA 101
- R v Ngo (2003) 57 NSWLR 55
- R v Qaumi & Ors (AVL) [2015] NSWSC 1711
- Dietrich v The Queen (1992) 177 CLR 292
- *R v Gl