Citation: [2021] NSWCCA 301
Court: NSW Court of Criminal Appeal
Date: 3 December 2021
Judges: Beech-Jones CJ at CL, Rothman J, Wilson J
Background
Seven accused persons were charged on an indictment listed for trial in the District Court before Zahra DCJ, due to commence in February 2022. Four of the seven had earlier faced murder trials in the Supreme Court before Fagan J, which had been conducted under non-publication orders to ensure fairness. In August 2021, Fagan J advised the parties that those non-publication orders would be lifted once sentencing proceedings commenced, scheduled for 6 December 2021, and provided reasons for that course. No party appealed or sought review of that decision.
Rather than applying to Fagan J to revisit the non-publication orders, the applicants sought orders from Zahra DCJ in the District Court. The practical effect of the orders sought would have required that, in any publication of the Supreme Court proceedings, the convicted persons be referred to by pseudonyms, and that the facts of their trials, including charges, pleas, evidence, and verdicts, be suppressed.
Zahra DCJ rejected those applications on 30 November 2021. The seven applicants then brought applications to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 and s 14 of the Court Suppression and Non-publication Orders Act 2010 (CSNPA), seeking both final relief and an interim suppression order and adjournment pending a further application to Fagan J.
Legal Issues
- Whether the District Court had power under the CSNPA, or its implied powers, to make suppression orders in respect of proceedings before a different court (the Supreme Court).
- Whether the Court of Criminal Appeal should adjourn the applications and make an interim suppression order under s 10 of the CSNPA pending a fresh application to Fagan J.
- Whether the applications, in all the circumstances, constituted an abuse of process.
Decision
The Court dismissed all seven applications for leave to appeal by consent, after the bench expressed a firmly held preliminary view that the applications were misconceived. Beech-Jones CJ at CL held that s 7 of the CSNPA confers power on a court to make orders relating to proceedings before that same court. On its face, it does not authorise one court to make suppression orders in respect of proceedings in a different court. His Honour expressed significant doubt that the District Court's implied powers extended to making orders of that kind in these circumstances.
The Chief Judge also identified a more fundamental problem. Fagan J had expressly addressed the question of non-publication in the Supreme Court proceedings, and none of the applicants had sought to appeal or review that decision. Instead, they pursued what his Honour described as an "unorthodox and impermissible" approach: seeking orders from the District Court that would in effect bind the reporting of Supreme Court proceedings, thereby subverting Fagan J's determination. The proceedings had the hallmark of an abuse of process.
As to the adjournment and interim relief, the Court declined both. Adjourning applications that should not have been brought would serve no purpose, and the interim relief sought rose no higher than the final relief already found to be unachievable in this forum. The Court noted that Fagan J was in a position to address any renewed application on the Monday morning before sentencing commenced, and that dismissal of the appeals would not finally determine the applicants' rights.
Rothman J and Wilson J agreed. Rothman J added that the Supreme Court, unlike the Court of Criminal Appeal exercising its statutory jurisdiction, possesses inherent jurisdiction arising from its foundational charter and the Supreme Court Act to protect the integrity of District Court proceedings, making it the appropriate venue for the relief sought. Wilson J observed that all seven applicants could have sought a review of Fagan J's orders under s 13 of the CSNPA and chose not to, describing the applications as "wholly misplaced" and, at the very least, coming very close to an abuse of process.
Orders Made
No orders were made in this decision.
Key Takeaways
- Section 7 of the Court Suppression and Non-publication Orders Act 2010 confers power on a court to make suppression or non-publication orders in respect of proceedings before that same court; the Court of Criminal Appeal expressed significant doubt that it authorises one court to make such orders in respect of proceedings in a different court.
- Where a judge of the Supreme Court has expressly addressed non-publication in respect of proceedings before that court, the appropriate mechanism for a party seeking to revisit that decision is a review under s 13 of the CSNPA or an appeal to the Court of Criminal Appeal under s 14, not an application to a different court entirely.
- Bypassing a Supreme Court suppression determination by seeking equivalent orders from the District Court carries a serious risk of being characterised as an abuse of process.
- The Supreme Court possesses inherent jurisdiction, distinct from the Court of Criminal Appeal's statutory jurisdiction, to protect the integrity of proceedings in inferior courts, making it the natural forum for orders of this kind.
- In refusing interim suppression orders and an adjournment, the Court of Criminal Appeal confirmed that interim relief under s 10 of the CSNPA rises no higher than the final relief sought: where the final orders are unachievable in a given forum, interim orders to preserve the position pending re-litigation elsewhere will not be granted.
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 10, 13, 14
- Criminal Appeal Act 1912 (NSW), s 5F
- Supreme Court Act 1970 (NSW), s 23
Cases:
No cases were cited in the judgment.