Citation: JB v Regina [2019] NSWCCA 48
Court: Court of Criminal Appeal
Date: 20 March 2019
Judge(s): Bathurst CJ at [1]; Hoeben CJ at CL at [34]; Simpson AJA at [35]
Background
JB, who was a child at the time of the offence, was convicted of murder in 2009. His initial appeal and a subsequent application for special leave to the High Court both failed. Following fresh material coming to light, JB applied for an inquiry into his conviction under the Crimes (Appeal and Review) Act 2001 (NSW). The matter was referred to the Court of Criminal Appeal, which quashed the conviction and entered a verdict of acquittal.
During those proceedings, a suppression order was made in March 2015 to protect the identity of a person referred to as A107, who had acted as a support person for JB during police questioning and was alleged to have been a police informant at the time.
The Director of Public Prosecutions subsequently referred the Crown Prosecutor from the original trial to the Legal Services Commissioner, raising questions of professional misconduct. The Commissioner initiated a complaint, which the Bar Council ultimately referred to the NSW Civil and Administrative Tribunal (NCAT). The complaint alleged that both the Crown Prosecutor and JB's solicitor knew A107 was a police informant and failed to disclose this to defence counsel. The Bar Council sought a variation of the suppression order to allow the disclosure of certain limited information about A107 for the purposes of those disciplinary proceedings.
Legal Issues
- Whether the Bar Council had standing under s 13(2)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) to apply for a review and variation of the suppression order.
- Whether varying the suppression order would deny the Crown Prosecutor procedural fairness in the disciplinary proceedings.
Decision
On the procedural fairness issue, the Court held that varying the suppression order did not deny the Crown Prosecutor procedural fairness. He had been given an opportunity to be heard on the question of whether the variation should be made. The Court noted that it remained open to him to seek a further variation of the order, or to apply for a stay of the disciplinary proceedings, if his legal advisers took the view that his case could not be properly presented without access to documents still covered by the order.
On standing, the Court interpreted s 13(2)(e) of the Suppression Act as encompassing persons who have an interest in the maintenance or continuation of a suppression order at the time an application for review is made. The provision also refers to persons with a sufficient interest in whether the order "should continue to operate," language that is notably absent from s 9(2)(e), which governs the original making of orders. This distinction supported a broader reading of who may apply for review.
Applying that construction, the Court held that the Bar Council and the Law Society each had standing, given their statutory functions under the Legal Profession Uniform Law (NSW) in prosecuting disciplinary matters. The Court also rejected the argument that the absence of an express provision for evidence on review meant no evidence could be led, observing that s 13 does not prohibit evidence and that the review process implicitly allows it.
Orders Made
The Court varied Order 6 (originally made 24 March 2015) by adding words to the end of the order to permit the following disclosures, but only for the proper purposes of disciplinary processes or proceedings under the Legal Profession Uniform Law (NSW):
- Disclosure of the fact that A107 provided assistance to police in respect of the proceedings against JB and the investigation that led to those proceedings.
- Disclosure of the fact that A107 provided assistance to police in respect of other matters, but not the number of those other matters nor any information about their nature.
All other prohibitions in the original suppression order, including on publication of A107's identity, remained in force outside the disciplinary context.
Key Takeaways
- The Court of Criminal Appeal held that s 13(2)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) confers standing on persons with an interest in whether a suppression order should continue to operate, not only those who were parties to the original proceedings in which the order was made.
- Bodies performing statutory disciplinary functions, such as the Bar Council and the Law Society, fall within the class of persons with "sufficient interest" to seek a review of a suppression order under s 13(2)(e), at least where the order materially affects their ability to conduct those functions.
- An opportunity to be heard on whether a variation should be made is sufficient to satisfy procedural fairness requirements; the variation itself does not constitute a denial of procedural fairness where further remedies remain available to the affected party.
- The distinction between the language of s 9(2)(e) and s 13(2)(e) of the Suppression Act, specifically the addition in the latter of the words "should continue to operate," supports a broader class of applicants for review than for original orders.
- Suppression orders can be varied in scope to accommodate legitimate statutory processes, such as professional disciplinary proceedings, while retaining protections in all other respects.
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 9, 13
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Criminal Appeal Act 1912 (NSW)
- Legal Profession Uniform Law (NSW), ss 266, 300
- Civil and Administrative Tribunal Act 2013 (NSW)
Cases:
- JB v R [2012] NSWCCA 12
- JB v The Queen [2013] HCA Trans 28
- JB v R [2015] NSWCCA 382
- JB v R (No 2) [2016] NSWCCA 67
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41
- Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56
- Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3