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Supreme Court 1 June 2022

R v Coss (No 4)

[2022] NSWSC 794

Homicide
CRIMINAL PROCEDURE TRIAL JUDGE ALONE MURDER NOTICE OF MOTION PUBLIC INTEREST IMMUNITY

Citation: R v Coss (No 4) [2022] NSWSC 794
Court: Supreme Court of NSW
Date: 1 June 2022
Judge(s): Dhanji J

Background

This decision arises from an ongoing judge-alone murder trial before Dhanji J. The Commissioner (whose specific role is not identified in the published text, though the context indicates involvement in law enforcement or a related public authority) filed a notice of motion on 24 May 2022 seeking several procedural orders connected to the trial proceedings.

The motion raised matters of sufficient sensitivity that part of it was referred to a different judge for determination. That separate judge granted a suppression order in relation to those matters, signalling concerns about public interest immunity. The present judgment deals with the remaining prayers in the motion, specifically prayers 8, 9, and 10.

  • Whether a non-publication order should be made restricting access to the trial transcript for a period following the conclusion of the trial
  • Whether the Commissioner should be granted leave to seek redactions to that transcript
  • Whether confidential affidavits and submissions filed by the Commissioner should be returned to the Commissioner's legal representatives at the conclusion of the trial

Decision

Dhanji J delivered judgment ex tempore (orally, on the spot) and granted all three remaining orders sought in the motion. His Honour reasoned that the earlier suppression order granted by another judge, dealing with related aspects of the same motion, confirmed that the proceedings involved matters of genuine sensitivity touching on public interest immunity concerns.

Given that backdrop, Dhanji J considered it appropriate to extend protective measures to the trial transcript itself. The non-publication order restricts dissemination of the transcript to the parties, the Commissioner, and their legal representatives for seven days after the trial concludes. This preserves an opportunity for the Commissioner to seek any necessary redactions before the transcript enters the public domain.

The order requiring return of confidential affidavits and submissions to the Commissioner's legal representatives was subject to the qualification that the Crown Solicitor must make that material available if required by the Supreme Court or any superior court, preserving judicial oversight over those materials.

Orders Made

  • No publication of the trial transcript beyond the parties, the Commissioner, and their legal representatives for seven days following the conclusion of the trial
  • The Commissioner is granted leave to approach the trial judge's associate to seek redactions to the transcript, no later than seven days after the trial concludes
  • Any confidential affidavit or submissions relied on by the Commissioner are to be returned to the Commissioner's legal representatives at the conclusion of the trial, on the basis that the Crown Solicitor will make such material available if required by the Supreme Court or any superior court

Key Takeaways

  • A suppression order granted by a separate judge on related aspects of the same motion served as contextual justification for extending further protective orders over the trial transcript in the same proceedings.
  • Public interest immunity concerns can support ancillary procedural orders, including non-publication of transcripts and the return of confidential materials, even beyond the primary suppression order itself.
  • Non-publication orders of this kind are time-limited and conditional: the seven-day window after trial conclusion is designed to allow a defined opportunity for the party with the immunity interest to seek redactions before public access is restored.
  • The return of confidential materials to the Commissioner's legal representatives does not place those materials beyond the reach of the courts. The Supreme Court preserved its oversight by requiring the Crown Solicitor to produce the material if required by any court of competent jurisdiction.
  • This is a brief procedural ruling on an interlocutory motion; it does not address the substantive issues in the underlying murder trial.

Legislation and Cases Referenced

No legislation or cases were cited in the published text of this judgment.