Citation: R v Warwick [2017] NSWSC 1151
Court: Supreme Court of New South Wales
Date: 21 August 2017
Judge(s): Garling J
Background
The accused in a criminal matter appeared before the Supreme Court for pre-trial proceedings ahead of a jury trial scheduled for February 2018. The proceedings involved argument and the tendering of documents that may or may not have ultimately been placed before the jury at trial.
An application was made to suppress publication of both the fact of the pre-trial proceedings and their contents. The Crown did not oppose the application.
Legal Issues
- Whether the Court had power under the Court Suppression and Non-Publication Orders Act 2010 to make a non-publication order covering pre-trial proceedings
- Whether such an order was necessary to prevent prejudice to the proper administration of justice under s 8(1)(a) of that Act
- How to balance open justice principles against the risk of jury contamination from pre-trial material
Decision
Garling J acknowledged the Court's obligation under s 6 of the Act to treat open justice as a primary objective of the administration of justice. His Honour noted this was a criminal trial of public notoriety, making the open justice principle particularly salient.
Despite that, the Court was satisfied that a non-publication order met the statutory threshold of being "necessary to prevent prejudice to the proper administration of justice." The central concern was that material discussed during pre-trial argument, including documents tendered but not necessarily admitted at trial, could reach prospective jurors before empanelment in February 2018. Exposure to such material risked influencing the jury on matters extraneous to their proper consideration.
The order was made on an ex tempore basis, meaning Garling J delivered the ruling orally without a reserved written judgment. The restriction remained in place until the conclusion of the principal criminal proceedings, at which point, as noted in the amended decision, the publication restriction was lifted on 25 June 2018.
Orders Made
- The fact of the pre-trial proceedings, the content of any evidence tendered, and any submissions made during those proceedings were not to be published or otherwise disclosed until the return of a verdict by a jury or the finalisation of the principal criminal proceedings.
- (Amendment, 25 June 2018): Publication restriction lifted.
Key Takeaways
- Under s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010, a non-publication order may be made where it is necessary to prevent prejudice to the proper administration of justice, including where pre-trial publicity could contaminate a future jury panel.
- The Supreme Court treated open justice as a weighty consideration, expressly noting that cases of public notoriety attract genuine public interest in transparent proceedings.
- A non-publication order is not lightly made: the Act requires the court to treat open justice as a primary objective, and the grounds for departure are deliberately narrow.
- Pre-trial proceedings, including submissions and documents tendered but not yet admitted, can fall within the scope of a valid non-publication order where their premature disclosure poses a real risk to a fair trial.
- Non-publication orders of this kind are temporary by design: the order here expired automatically upon the finalisation of the principal criminal proceedings, and the restriction was formally lifted in June 2018.
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8(1)(a)
Cases cited:
- No cases were cited in this decision.