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Court of Criminal Appeal 20 July 2018

R v AB (No. 2)

[2018] NSWCCA 148

Sexual offencesPublic order & justice offences
CRIME WHETHER COURT MISAPPREHENDED FACTS NO GROUND FOR RE OPENING APPEAL MADE OUT CRIME PUBLICATION ORDERS ACT NO POWER TO GRANT STAY CRIME

Citation: R v AB (No. 2) [2018] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 20 July 2018
Judge(s): Meagher JA, Rothman J, Garling J

Background

In the earlier decision, R v AB (No. 1) [2018] NSWCCA 113, the Court of Criminal Appeal allowed a Crown appeal and set aside suppression and non-publication orders that the District Court had made to protect the identity of a respondent (referred to as "AB") convicted of historic sexual offences. Those District Court orders had been made under the Court Suppression and Non-publication Orders Act 2010 (NSW).

Following that decision, AB filed a series of motions seeking to undo or delay the effect of the Court's orders. He contended, among other things, that the Court had made factual errors, denied him a fair hearing on certain issues, and overlooked evidence about the risk to his psychological safety.

The present judgment, R v AB (No. 2), deals with four distinct applications arising from those motions: an application to set aside the earlier orders, two separate applications for a stay, and an application for an indemnity certificate under the Suitors' Fund Act 1951 (NSW).

  • Whether the Court had misapprehended a critical fact concerning the "rim" versus "wheel" distinction in evidence about a vehicle incident said to threaten the safety of AB's family
  • Whether AB had been denied a sufficient opportunity to address the likely public response if the suppression orders were lifted
  • Whether the Court had overlooked uncontested evidence and submissions concerning AB's psychological safety under s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW)
  • Whether a stay should be granted pending AB's application for special leave to appeal to the High Court
  • Whether a stay should be granted pending a fresh application by AB to the District Court for further suppression orders
  • Whether an indemnity certificate should be issued under the Suitors' Fund Act 1951 (NSW)

Decision

Application to set aside orders under r 50C. The Court rejected the argument that it had misapprehended a critical fact in referring to a "rim" rather than a "wheel." There is a genuine distinction between the two terms, and the evidence itself drew that distinction. AB was, in substance, seeking to re-agitate inferences from limited and unclear evidence. On the public response issue, the Court held that the inference it drew about diminishing public outrage following earlier dissemination of information was grounded in human experience and common sense, and did not require evidentiary proof. AB had also been given a sufficient opportunity to address that question because it was logically involved in a proposition the Crown had squarely raised. As for psychological safety, no submission had been put to the Court, or to the primary judge, that AB's psychological safety should be considered under s 8(1)(c); and the psychologist's report said to contain relevant evidence did not form part of the appeal papers.

Stay pending special leave application. The Court assessed that there were no realistic prospects of special leave being granted to the High Court. The mere existence of a special leave application does not automatically warrant a stay, even where refusing the stay would render that application futile. The Court nonetheless varied the earlier temporary stay to allow AB a short window to seek a stay directly from the High Court.

Stay pending fresh District Court application. The Court found it had no power to grant this stay. The power to stay its own orders must be reasonably required for, or incidental and necessary to, the exercise of the Court's powers under the Act or the preservation of the efficacy of its judgments. Staying orders to facilitate a fresh application to the District Court did not meet that standard.

Suitors' Fund Act certificate. The Court held that the power to grant an indemnity certificate was technically enlivened by the appeal, but declined to exercise it. AB had succeeded at first instance, which was itself a valuable outcome irrespective of the appellate result. Because criminal proceedings involve no order for costs, the application of the Suitors' Fund Act in that context is anomalous, and certificates should be reserved for unusual or exceptional circumstances. The present case did not meet that threshold.

Orders Made

  • Leave granted to AB to make an application under r 50C of the Criminal Appeal Rules (NSW)
  • Paragraphs 1, 2, 4, 5, 6, 7, 8 and 11 of AB's notice of motion filed 13 June 2018 dismissed
  • The earlier temporary stay vacated and replaced with an order staying the Court's 6 June 2018 orders until 5pm on Monday 30 July 2018, or until the High Court granted or refused a stay of those orders, whichever occurred first

Key Takeaways

  • Under Criminal Appeal Rules r 50C, the threshold for re-opening a decided appeal is high: a party must demonstrate misapprehension of a critical fact, not simply that different inferences could have been drawn from ambiguous evidence.
  • Inferences drawn from human experience and common sense do not require direct evidentiary proof; a court is entitled to rely on such reasoning without being taken to have acted on matters not in evidence.
  • Sufficient opportunity to address an issue is given where that issue is logically involved in an argument already squarely raised by the opposing party, even if the court ultimately frames it differently.
  • The Court of Criminal Appeal confirmed it has no power to stay its own orders simply to allow a party to pursue a fresh application before a lower court; the power to grant a stay must be connected to the exercise of the appellate court's own jurisdiction or the preservation of its judgments.
  • In criminal proceedings, indemnity certificates under the Suitors' Fund Act 1951 (NSW) should be granted only in unusual or exceptional cases, given the anomaly that no costs order is made in favour of either party in a criminal appeal.

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 14
- Criminal Appeal Act 1912 (NSW), ss 5F, 17
- Criminal Appeal Rules (NSW), r 50C
- Evidence Act 1995 (NSW), s 80(b)
- Suitors' Fund Act 1951 (NSW), s 6

Cases
- Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300
- G v H (1994) 181 CLR 387
- Jones v Sutherland Shire Council (1979) 2 NSWLR 206
- Elliot v The Queen; Blessington v The Queen (2007) 234 CLR 38
- Pelechowski v Registrar (Court of Appeal) (1999) 198 CLR 435
- Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
- Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497
- R v King (2003) 59 NSWLR 472
- Rinehart v Welker (2012) 83 NSWLR 347
- Burrell v The Queen (2008) 238 CLR 218
- Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125