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Supreme Court 14 February 2020

R v Warwick (No.92)

[2020] NSWSC 78

Public order & justice offences
CRIMINAL PROCEDURE SUPPRESSION ORDER SUPPRESSION ORDER NO LONGER NECESSARY REVOKED NO POINT OF PRINCIPLE

Citation: R v Warwick (No.92) [2020] NSWSC 78
Court: Supreme Court of New South Wales
Date: 14 February 2020
Judge(s): Garling J

Background

The accused faced an indictment containing 24 counts and was first arraigned in March 2017. The trial was originally set to proceed before a jury, and in August 2017 the court made suppression orders over all pre-trial proceedings and judgments under the Court Suppression and Non-publication Orders Act 2010 (the Act). The purpose was straightforward: to prevent potential prejudice to jury deliberations arising from media coverage of pre-trial rulings.

Those orders covered 32 interlocutory judgments delivered up to the point when evidence commenced in mid-2018. Shortly before the trial began in earnest, however, the accused requested that the trial proceed before a judge alone, without a jury. That request was granted.

By the time this judgment was delivered, evidence in the trial had concluded after 182 hearing days, with submissions still to come. The court therefore invited the parties to address whether the suppression orders over the pre-trial judgments should be lifted.

  • Whether the suppression orders made in August 2017 remained necessary, given that the trial was proceeding before a judge alone and evidence had concluded.
  • Whether personal distress or embarrassment to the accused and his family could sustain a suppression order under the Act.
  • Whether the risk of adverse public perception about judicial impartiality provided a valid ground to maintain suppression of two specific judgments.

Decision

Garling J found that the original basis for the suppression orders had entirely dissolved. The orders were made to protect jury deliberations from potentially prejudicial pre-trial publicity. No jury had been empanelled, and the evidence was complete. Section 12 of the Act requires that suppression orders operate no longer than is reasonably necessary to achieve their purpose, and that purpose no longer existed.

The accused sought to maintain suppression over two particular judgments, arguing that publication might cause distress to him and his family, and that references to a "strong" Crown case could damage public confidence in the court's impartiality. Garling J rejected both arguments. Personal embarrassment and distress, the court held, do not constitute grounds capable of outweighing the strong public interest in open justice.

On the impartiality argument, Garling J took the opposite view to that advanced by the accused. The court reasoned that public confidence in the impartiality of the proceedings would be positively enhanced, not undermined, by making pre-trial rulings publicly available. Transparency in the reasoning process is the mechanism by which the primary objective in section 6 of the Act, namely safeguarding the public interest in open justice, is achieved.

Two judgments (No.7 and No.19) remained subject to suppression and were not the subject of this application. Subject to those exceptions, the court was satisfied that all pre-trial judgments should be published.

Orders Made

  • The suppression order made on 21 August 2017, covering all judgments up to and including R v Warwick (No.32) [2018] NSWSC 1105, was revoked, with the exception of R v Warwick (No.7) [2018] NSWSC 236 and R v Warwick (No.19) [2018] NSWSC 655.
  • By subsequent amendment (20 August 2020): the suppression order regarding the names of the offender's wife and daughter was revoked by direction of Garling J.
  • The suppression order relating to the identification of a particular witness remains in place.

Key Takeaways

  • Under section 12 of the Court Suppression and Non-publication Orders Act 2010, a suppression order must operate no longer than is reasonably necessary to achieve the purpose for which it was made. Once that purpose is spent, the order's continued operation is not justified.
  • A suppression order made solely to protect jury deliberations does not survive the removal of a jury from the proceedings.
  • Personal distress or embarrassment to an accused or their family is not a ground capable of outweighing the public interest in open justice under the Act.
  • Where a judge-alone trial is on foot, publication of pre-trial rulings is more likely to enhance public confidence in judicial impartiality than to undermine it, because transparency allows the public to assess how the proceedings have been conducted.
  • The primary objective stated in section 6 of the Act, safeguarding the public interest in open justice, operates as a significant counterweight whenever suppression is sought on the basis of public perception or potential embarrassment.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8, 12
- Bail Act 2013 (NSW)

Cases:
- R v Warwick [2017] NSWSC 1151
- R v Warwick (No.2) [2017] NSWSC 1225
- R v Warwick (No.7) [2018] NSWSC 236
- R v Warwick (No.8) [2018] NSWSC 304
- R v Warwick (No.19) [2018] NSWSC 655
- R v Warwick (No.32) [2018] NSWSC 1105