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Supreme Court 13 January 2022

R v White (No 2)

[2022] NSWSC 65

Public order & justice offences
PUBLICATION ORDERS IMPORTANCE OF PRINCIPLE OF OPEN JUSTICE

Citation: R v White (No 2) [2022] NSWSC 65
Court: Supreme Court of New South Wales
Date: 13 January 2022
Judge: Wilson J

Background

The accused had entered a plea of guilty on 10 January 2022. He then applied to vacate that plea, and the Court refused that application. Non-publication orders had been made on 10 January 2022 covering the proceedings up to that point.

Following the refusal to vacate the plea, senior counsel for the accused advised the Court of an intention to appeal under s 5F of the Criminal Appeal Act 1912 (NSW). The argument was that, if the appeal succeeded and the matter proceeded to trial, publication of the plea and associated proceedings could prejudice a future jury.

The accused applied for continuation of the existing non-publication orders and for additional orders preventing any media reporting of the proceedings from 10 to 13 January 2022, as well as restricting publication of the Court's reasons for its earlier order. The Crown opposed the application.

  • Whether the existing non-publication orders should be continued pending a potential appeal
  • Whether additional non-publication orders should be made to prevent media reporting of the proceedings
  • How to balance the principle of open justice against the risk of prejudice to a future jury trial
  • Whether the risk of prejudice to a future trial was sufficiently concrete to justify restricting publication

Decision

Wilson J began by affirming that open justice is a fundamental principle of the criminal justice system, not a formality. Members of the public and the media ordinarily have the right to observe and report on criminal proceedings, and the erosion of that right undermines public confidence in the administration of justice. The Court noted that COVID-19 had already significantly curtailed public access to courtrooms, and that maintaining media access had become an important substitute for direct public observation.

The Court assessed the risk of jury prejudice against the practical tools available to a future trial judge to manage that risk. A trial judge could empanel an expanded jury panel, direct potential jurors to disclose any relevant prior knowledge, and exclude those whose impartiality might be compromised. The Court emphasised that the jury system proceeds on the assumption that jurors will comply with judicial directions.

Wilson J also addressed the temporal element of the prejudice argument. Several contingencies would have to be satisfied before any trial could occur: an appeal would need to be filed, it would need to succeed, and a trial date would need to be fixed. Given existing court backlogs worsened by the Omicron variant of COVID-19, any trial was unlikely to proceed quickly, further diminishing the prospect that coverage of the current proceedings would remain prominent in jurors' minds.

The Court concluded that the information concerning the current proceedings would be modest in comparison with material already publicly available about the underlying case. Taking into account the importance of public access to the courts and the range of tools available to a future trial judge, Wilson J was not persuaded that non-publication orders were necessary to prevent prejudice to the administration of justice. The balance fell in favour of open justice.

Orders Made

  • The non-publication orders made on 10 January 2022 were lifted.
  • The proceedings were permitted to be reported without restriction.
  • The Court's judgment was ordered to be published to the Caselaw website without restriction.

Key Takeaways

  • Open justice is a substantive principle, not a mere formality, and non-publication orders must be affirmatively justified by demonstrated necessity to prevent prejudice to the administration of justice.
  • Speculative or hypothetical prejudice contingent on multiple uncertain future events carries limited weight when balanced against the public interest in transparency of criminal proceedings.
  • A trial court's capacity to vet and manage jury selection provides a meaningful mechanism to address the risk of juror exposure to prior publicity, including knowledge of a subsequently vacated guilty plea.
  • Where substantial material about a case is already in the public domain, additional publicity arising from discrete procedural proceedings is unlikely, of itself, to tip the balance in favour of suppression.
  • Pandemic-related delays in the court list were treated as a relevant factor reducing the immediacy of any prejudicial effect that current publicity might have on a future jury.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), Part 2
- Criminal Appeal Act 1912 (NSW), s 5F

Cases cited: No cases were cited in the judgment.