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Supreme Court 13 March 2018

R v Sparos (No 3)

[2018] NSWSC 307

HomicidePublic order & justice offences
CRIMINAL LAW PROCEDURE SUPPRESSION ORDER

Citation: R v Sparos (No 3) [2018] NSWSC 307
Court: Supreme Court of New South Wales
Date: 13 March 2018
Judge: N Adams J

Background

The accused faced a third listing for trial on a murder charge, scheduled to commence on 19 March 2018. The alleged victim had been a witness in earlier serious drug proceedings against the accused and died before he could give evidence at trial. A first trial in 2016 ended with the jury unable to reach a verdict; a second trial listed in October 2017 did not proceed.

Orders had been made in the first trial, by consent, allowing three Crown witnesses to give evidence under pseudonyms (Witnesses A, B and C) with the court closed during their testimony. Those orders remained on foot and would apply to the retrial.

A fourth witness had come forward since the first trial and provided a statement dated 31 August 2017. The Commissioner of Police applied by notice of motion for suppression and pseudonym orders in relation to that witness, to be known as Witness E, in terms similar to those already in place for the earlier witnesses.

  • Whether the Court had power under the Court Suppression and Non-Publication Orders Act 2010 (NSW) to make pseudonym and suppression orders protecting the identity of Witness E.
  • Whether the statutory grounds under s 8(1) of that Act, each requiring "necessity", were satisfied on the material before the Court.
  • Whether closing the court during Witness E's evidence was warranted in addition to pseudonym and non-publication orders.
  • Whether appropriate weight had been given to the public interest in open justice under s 6 of the Act.

Decision

Adams J accepted that the power to make the orders sought rested in s 7 of the Court Suppression and Non-Publication Orders Act 2010, which permits a court to prohibit or restrict disclosure of information tending to reveal the identity of a witness. The relevant grounds for making such an order are set out in s 8(1) and each imports a test of necessity. His Honour applied the principles on the meaning of "necessity" in this statutory context as stated by Bathurst CJ and Basten JA in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52.

Although the orders were sought by consent, the Court was not relieved of its obligation to be independently satisfied that an appropriate balance was struck between witness safety, the right to a fair trial, and the principles of open justice required by s 6 of the Act. The confidential affidavit of Assistant Commissioner Lanyon was received in accordance with the approach endorsed in Attorney General v Kaddour, where the Court of Criminal Appeal confirmed it is appropriate to receive such material to avoid defeating the very protection sought.

Adams J was satisfied, on the basis of the confidential material, that police concerns about the safety of Witness E and his family had a proper basis. A pseudonym order alone was considered insufficient because persons could enter the courtroom and observe the witness's physical appearance, making a court closure order also necessary. His Honour further considered whether to assign Witness E a more neutral pseudonym rather than a sequential letter, but concluded that this was impractical given that documentation relating to Witnesses A, B and C had already been edited to reflect those pseudonyms.

The Court was satisfied that appropriate jury directions could address any potential prejudice to the accused arising from a witness giving evidence under a pseudonym, noting that such a course is not unusual and that courts have developed directions to manage associated prejudice.

Orders Made

  • Witness E to be allocated and referred to by the pseudonym "Witness E" throughout all proceedings and interlocutory matters.
  • The pseudonym order does not prevent disclosure of the witness's true identity for specific purposes, including resolving legal or procedural matters, witness identification, and the proper conduct of proceedings.
  • The true identity of Witness E, together with any evidence, document, or information facilitating identification, suppressed until further order under s 7 of the Act on the grounds that the order is necessary to prevent prejudice to the proper administration of justice, necessary to protect the safety of a person, and otherwise necessary in the public interest.
  • Any visual or other description or depiction of the witness's physical appearance or identifying features suppressed until further order on the same grounds.
  • Suppression orders to apply throughout the Commonwealth of Australia under s 11 of the Act.
  • The court to be closed for the duration of Witness E's evidence.
  • The Commissioner's representative and NSW Police officers to have liberty to make arrangements with court officers and Sheriff's officers regarding the witness's entry to and exit from the courtroom.

Key Takeaways

  • Under the Court Suppression and Non-Publication Orders Act 2010 (NSW), each ground in s 8(1) carries a necessity requirement, and the Supreme Court must independently assess whether that threshold is met even where orders are sought by consent.
  • Where a confidential affidavit is tendered in support of a witness protection application, it is appropriate for the court to receive that material on a confidential basis, consistent with the principle in Attorney General v Kaddour, so as not to undermine the protection being invoked.
  • A suppression and pseudonym order alone may be insufficient to protect witness identity if the witness's physical appearance could be observed in an open courtroom; a court closure order may be additionally necessary in such circumstances.
  • The public interest in open justice under s 6 of the Act remains a primary consideration and does not dissolve simply because all parties consent to the orders sought.
  • Practical considerations, including the prior editing of trial documentation to reflect existing pseudonyms, are relevant to decisions about the form of future orders in the same proceedings.

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 11

Cases
- Attorney General v Kaddour [2001] NSWCCA 456
- Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125