Citation: R v Coss (No 6) [2022] NSWSC 796
Court: Supreme Court of New South Wales
Date: 2 June 2022
Judge: Dhanji J
Background
This decision arose in the course of a judge-alone murder trial. During proceedings, a witness named Keith King gave evidence concerning discussions he had with police about the use of media releases as an investigative tool, specifically to generate conversations or activity that might advance the investigation.
The previous day, Dhanji J made an interim suppression and non-publication order under s 10(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW) covering that evidence. The order was made without any consideration of the merits, on the basis that it required urgent determination under s 10(2), and to allow time for representatives of the Police Commissioner to obtain instructions.
The central question was whether a final non-publication order should be made in respect of the witness's evidence about police methodology.
Legal Issues
- Whether an interim non-publication order made under s 10(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW) should be confirmed or extended as a final order
- Whether the evidence relating to police use of media releases warranted suppression on the basis that it touched on sensitive police methodology
Decision
Dhanji J noted that the interim order had been made purely on a precautionary basis, without consideration of its merits, to afford the Commissioner's representatives an opportunity to obtain instructions. The judge acknowledged that the evidence, on its face, had the potential to concern police methodology and could be a matter of legitimate interest to the Commissioner.
However, following a short adjournment, the court was informed that instructions had been obtained and that the application for a non-publication order would not be pursued. In those circumstances, Dhanji J declined to make any non-publication order in relation to the evidence given by the witness.
The judge confirmed expressly that the interim order came to an end, providing procedural clarity as to the status of the earlier suppression.
Orders Made
- The court declined to make any non-publication order in relation to the evidence of Keith King concerning police use of media releases.
- The interim non-publication order made on the previous day was confirmed as having come to an end.
Key Takeaways
- An interim suppression order under s 10(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW) can be made without consideration of the merits, to allow an interested party time to obtain instructions before the application is determined on an urgent basis under s 10(2).
- Where the party seeking a non-publication order declines to pursue the application after obtaining instructions, no basis remains for the court to make a final order, and the interim order lapses.
- The Supreme Court confirmed that "urgency" under s 10(2) carries a degree of relativity and must be assessed in the context of the particular circumstances of the case.
- Procedural clarity about the status of an interim suppression order matters: Dhanji J expressly confirmed the order had ended rather than leaving its status uncertain on the record.
- Evidence concerning police investigative methodology, such as the use of media releases to generate leads, was treated as a matter that could potentially warrant suppression, even if ultimately no order was made in this instance.
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 10(1), 10(2)
Cases cited: None cited in the judgment.