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Supreme Court 3 February 2020

R v Quintana (No. 3)

[2020] NSWSC 32

Homicide
CRIMINAL LAW NON PUBLICATION ORDER PROPER ADMINISTRATION OF JUSTICE PUBLIC INTEREST IN OPEN JUSTICE KEY EYE WITNESS

Citation: R v Quintana (No. 3) [2020] NSWSC 32
Court: Supreme Court of New South Wales
Date: 3 February 2020
Judge(s): Lonergan J

Background

A murder trial was listed to commence before Lonergan J. The Crown sought leave under the Trans-Tasman Proceedings Act 2010 to take evidence from a key witness, located in New Zealand, by audio-visual link (AVL) rather than requiring her physical presence in New South Wales.

During the proceedings, it emerged that there had been discussion about a potential application to extradite the witness to New South Wales. Importantly, the witness had not yet been informed of that possibility. That same afternoon, she gave sworn evidence indicating her willingness to cooperate with the court by giving evidence via AVL from New Zealand.

The Crown applied orally for a non-publication order to suppress any reference to the potential extradition, concerned that publication of that information could cause the witness to withdraw her cooperation. Counsel for the accused joined in supporting the application.

  • Whether a non-publication order should be made under the Court Suppression and Non-Publication Orders Act 2010 (NSW) to prohibit publication of any reference to the potential extradition of the witness.
  • Whether the ground under s 8(1)(a) of that Act, namely that the order is necessary to prevent prejudice to the proper administration of justice, was established.
  • What duration the order should operate for, consistent with the requirement under s 12(2) that it operate no longer than reasonably necessary.

Decision

Lonergan J noted that s 6 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) requires a court to treat the public interest in open justice as a primary objective of the administration of justice. That principle was expressly acknowledged as an important safeguard enshrined in clear terms.

However, s 7 of the Act empowers the court to make a non-publication order where a ground under s 8 is established. Lonergan J was satisfied that the ground in s 8(1)(a) was made out: an order was necessary to prevent prejudice to the proper administration of justice. The relevant administration of justice was the court's interest in preserving the witness's sworn indication that she was prepared to give evidence in the murder trial.

The court accepted the Crown's concern that publication of the potential extradition application could cause the witness to become uncooperative or to make herself unavailable, thereby rendering the Crown's AVL application futile. Both the Crown and defence counsel had responsibly joined in seeking the order to protect the court's processes.

On duration, s 12(2) required the order to operate no longer than reasonably necessary. Because Lonergan J had reserved her decision on the Crown's AVL application to the following morning at 10am, she limited the non-publication order to that point, when the underlying question would be resolved.

Orders Made

  • Pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), any reference to the potential extradition of the witness is not to be published, on the ground that the order is necessary to prevent prejudice to the proper administration of justice.
  • The order remains in place until judgment is delivered on the Crown's Notice of Motion filed 30 January 2020 seeking leave for the witness's evidence at trial to be taken by AVL.

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 publication would prejudice the proper administration of justice, including where publication risks undermining a witness's cooperation with court processes.
  • The Supreme Court treated a witness's sworn indication of willingness to give evidence as a concrete court process warranting protection, not merely a background circumstance.
  • Section 6 of the Act requires a court to treat open justice as a primary objective, but that obligation does not preclude an order where a s 8 ground is established.
  • Pursuant to s 12(2), non-publication orders must be limited in duration to no longer than reasonably necessary. Here, the order was confined to a period of less than 24 hours, expiring when judgment on the connected application was to be delivered.
  • The fact that both Crown and defence counsel supported the application was noted, though the court's decision rested on the statutory grounds rather than consent alone.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8(1)(a), 12(2)
- Trans-Tasman Proceedings Act 2010 (Cth)

Cases cited: None cited in the judgment.