Citation: R v Agius; R v Castagna (No 7) [2018] NSWSC 2039
Court: Supreme Court of New South Wales
Date: 5 February 2018
Judge(s): Adamson J
Background
Two accused, referred to by their surnames Agius and Castagna, were awaiting trial in the Supreme Court of New South Wales on criminal charges. The proceedings also involved freezing orders made under Commonwealth proceeds of crime legislation, restraining the assets of both accused and their related companies.
In October 2017, the court had made an interim non-publication order on short notice, without the Crown having been notified in advance. That interim order prohibited publication of two categories of information: the existence and details of a previous conviction and current sentence of one accused, and the existence and details of the freezing orders affecting both accused.
Once the interim order was in place, the Act required the substantive application to be determined urgently. The matter returned before Adamson J on 5 February 2018 for a final ruling on whether the non-publication order should be made on a permanent basis until the conclusion of the trial.
Legal Issues
- Whether the interim non-publication order made under s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) should be confirmed as a substantive order under ss 7 and 8 of that Act
- Whether publishing the specified information would prejudice the proper administration of justice, satisfying the ground in s 8(1)(a) of the Act
Decision
Adamson J noted that the Crown, having now received full notice of the application and the content of the interim order, raised no opposition to the substantive order being made. The court proceeded on the basis that the reasons given when making the interim order applied equally to the substantive application.
The court was satisfied that the order met the statutory ground in s 8(1)(a): that publication of the specified information was necessary to prevent prejudice to the proper administration of justice. The primary concern was that jurors in the pending criminal trial might be exposed to prejudicial material, namely the existence of a prior conviction and the existence of asset-freezing orders, before or during the trial.
The order was framed to continue until the determination of the trial of both accused, or until further order of the court. No detailed reasons beyond those given for the earlier interim order are recorded in this judgment.
Orders Made
Pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the following is prohibited until the determination of the trial or until further order:
- Publication of the fact, or details, of one accused's previous conviction or current sentence
- Publication of the fact, or details, of freezing orders made under the Proceeds of Crime Act 2002 (Cth) in respect of the assets of both accused and their related companies
Key Takeaways
- Under s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), a non-publication order may be made where it is necessary to prevent prejudice to the proper administration of justice, including prejudice to a jury in a pending criminal trial.
- Where an interim order is made under s 10 of the Act without notice to a party, the Act requires the substantive application to be determined as a matter of urgency.
- The Supreme Court confirmed that information about an accused's prior conviction and the existence of proceeds-of-crime asset-freezing orders can each independently warrant non-publication protection in the lead-up to a criminal trial.
- The Crown's decision not to oppose the order did not itself determine the outcome; the court independently assessed whether the statutory ground under s 8(1)(a) was satisfied.
- Non-publication orders of this kind are expressly time-limited, here to the determination of the relevant criminal trial, rather than made on an indefinite basis.
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8(1)(a), 10
- Proceeds of Crime Act 2002 (Cth)
Cases cited: None identified in the judgment.