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Supreme Court 28 November 2017

R v Agius; R v Castagna (No 6)

[2017] NSWSC 1868

Public order & justice offences
NON PUBLICATION ORDER PUBLICATION ORDERS ACT 2010 (NSW) CROWN NOT ON NOTICE OF APPLICATION

Citation: R v Agius; R v Castagna (No 6) [2017] NSWSC 1868
Court: Supreme Court of NSW
Date: 28 November 2017
Judge(s): Adamson J

Background

Two accused, Mr Agius and Dr Castagna, were facing a joint criminal trial listed to commence in February 2018. Their legal representatives applied for a non-publication order concerning two categories of potentially prejudicial information: the fact of Mr Agius's prior conviction and current sentence, and the existence of freezing orders made against the assets of both accused and their related companies under the Proceeds of Crime Act 2002 (Cth).

The application was made without advance notice to the Crown. Crown counsel indicated a preference for the matter to be deferred so that the Crown could consider the proposed orders and obtain instructions before any decision was made.

  • Whether interim non-publication orders should be made under s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) in circumstances where the Crown had not been given notice of the application.
  • Whether publication of the specified information would prejudice the proper administration of justice in the upcoming trial.

Decision

Adamson J accepted that making interim orders under s 10 of the Act was the appropriate course in the circumstances. Section 10 permits a court to make an interim non-publication order that remains in effect until the substantive application is determined, with the court then obliged to determine that application as a matter of urgency.

Her Honour reasoned that an interim order would balance two competing interests: it would preserve the Crown's right to make submissions about whether the orders should be revoked or varied, while at the same time protecting the administration of justice by preventing potentially prejudicial publication before the trial. The relevant statutory ground was satisfied under s 8(1)(a) of the Act, namely that the order was necessary to prevent prejudice to the proper administration of justice.

The interim orders were expressed to operate until further order or until 5 February 2018 (the date already allocated for pre-trial applications), whichever came first. The court noted that if the parties reached agreement on the form of a substantive order under s 7, that order could be made in chambers before the February date.

Orders Made

  • Publication of the following was prohibited until further order or 5 February 2018, whichever was earlier:
  • The fact or details of Mr Agius's previous conviction or current sentence.
  • The fact or details of freezing orders made under the Proceeds of Crime Act 2002 (Cth) in respect of the assets of Dr Castagna, Mr Agius, and their related companies.
  • The substantive application for an order under s 7 of the Act was directed to be determined on 5 February 2018, unless earlier determined by the court in chambers.

Key Takeaways

  • Under s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), a court may make an interim non-publication order without the opposing party having been put on notice, provided the substantive application is then determined as a matter of urgency.
  • An interim order can serve a dual function: protecting the administration of justice pending a contested hearing, while preserving an absent party's ability to make submissions once it has had an opportunity to consider the application.
  • The ground in s 8(1)(a) of the Act, that an order is necessary to prevent prejudice to the proper administration of justice, was found to be engaged where publication of prior conviction details and freezing orders risked prejudicing the rights of accused persons at an imminent trial.
  • Prior convictions and the existence of asset-freezing orders were treated as information capable of creating a real risk of prejudice to a fair trial, warranting suppression pending the substantive hearing.
  • Interim orders of this kind may be dealt with in chambers if the parties reach agreement on the final form of a substantive order before the listed hearing date.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8, 10
- Proceeds of Crime Act 2002 (Cth)

Cases cited: None cited in the judgment.