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Supreme Court 6 March 2026

Application by Serge Zhura pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (No 2)

[2026] NSWSC 162

Public order & justice offences
CRIMINAL PROCEDURE SUPPRESSION AND NON PUBLICATION ORDERS APPLICATION REFUSED

Citation: Application by Serge Zhura pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2026] NSWSC 162
Court: Supreme Court of New South Wales
Date: 6 March 2026 (Addendum: 16 June 2026)
Judge(s): Emmett J

Background

On 6 February 2026, Emmett J dismissed an application made under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act). Part 7 of the CAR Act allows a person convicted of a criminal offence to apply to the Supreme Court for a review of their conviction or sentence on the basis of a doubt or question about the matter. The applicant had previously made an unsuccessful application under the same Part, which Hamill J had decided and published in 2024.

Following the dismissal, the applicant filed a notice of motion on 9 February 2026 seeking a non-publication or suppression order over the published reasons. He argued that public identification in connection with the proceedings would harm him personally and commercially.

In support of the application, he submitted that he had been diagnosed with a mental health condition, that publication would exacerbate symptoms including anxiety and emotional dysregulation, and that he operated an online business that depended on personal reputation. A treating psychologist provided a letter in support.

  • Whether the Court Suppression and Non-publication Orders Act 2010 (NSW) (the CSNPO Act) applied to a Part 7 CAR Act decision, given that such a decision is not an exercise of judicial power and may not constitute "civil or criminal proceedings" within the meaning of the CSNPO Act.
  • Whether, independently of the CSNPO Act, the Court had administrative power to withhold publication of its Part 7 reasons.
  • Whether the applicant had provided sufficient grounds to outweigh the public interest in publishing Part 7 decisions.

Decision

Emmett J first considered whether a Part 7 CAR Act application falls within the definition of "proceedings" in the CSNPO Act, which is defined to mean "civil or criminal proceedings." It is settled law that a Part 7 determination is not an exercise of judicial power (following Sinkovich v Attorney General for NSW [2013] NSWCA 383). Emmett J noted it was therefore not obvious that such an application fell within the CSNPO Act's specific definition of "proceedings," but declined to decide the point conclusively, as the application failed on other grounds regardless.

The Court was satisfied it had an independent administrative power to decide whether to publish Part 7 reasons on Caselaw, a practice described in earlier decisions as designed to serve the public interest in open justice. Although open justice is classically a principle of judicial rather than administrative procedure, Emmett J drew on Court of Appeal authority to observe there is no bright line between judicial and administrative functions, and that the appropriate classification may depend on the purpose at hand. Regardless of the formal classification, the Court found a significant public interest in the visibility and public scrutiny of Part 7 decisions.

The Court then weighed the applicant's personal and commercial concerns against that public interest. Emmett J noted that Hamill J had already published a prior Part 7 decision involving the same applicant, after refusing a suppression application in that case. That earlier decision contained more detail about the underlying offending. All related criminal proceedings had been conducted in open court, and the applicant's offending had already been the subject of publicly accessible media coverage. The psychologist's letter identified potential harm in speculative terms, and the opinion on reputational and business consequences was noted as appearing to be outside the psychologist's expertise. Emmett J was not persuaded that the evidence crossed the threshold needed to justify withholding publication.

The Court also declined to adopt the intermediate step of anonymising the decision by giving the applicant a pseudonym, describing that course as having insufficient utility.

Orders Made

  • The applicant's notice of motion dated 9 February 2026 was refused.
  • Publication of the reasons was delayed by 21 days from the date of the order to allow the applicant an opportunity to seek relief in the Court of Appeal.
  • Following an addendum on 16 June 2026, the Court noted no appeal or judicial review application had been commenced, the time limit under UCPR 59.10(1) had passed, and both the Part 7 decision and these reasons were published on Caselaw.

Key Takeaways

  • A Part 7 CAR Act determination is not an exercise of judicial power, and its status as "proceedings" under the CSNPO Act (which defines proceedings as "civil or criminal proceedings") is doubtful, though the point was left open in this decision.
  • Regardless of the CSNPO Act's application, the Supreme Court possesses an independent administrative power to decide whether to publish its Part 7 reasons on Caselaw.
  • A significant public interest attaches to the publication of Part 7 decisions, including promoting public scrutiny and consistency of decision-making within the criminal justice system.
  • Evidence of personal distress and potential reputational harm will not automatically displace that public interest, particularly where harm is identified in speculative terms and the underlying facts are already publicly available.
  • Where prior proceedings involving the same applicant have been published, and related criminal proceedings were conducted in open court, those circumstances weigh against granting a non-publication order over a subsequent Part 7 decision.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 7
- Crimes (Appeal and Review) Act 2001 (NSW), Pt 7, s 79
- Vexatious Proceedings Act 2008 (NSW), s 4
- Uniform Civil Procedure Rules, r 59.10(1)

Cases:
- Sinkovich v Attorney General for NSW (2013) 85 NSWLR 783; [2013] NSWCA 383
- Application by Klewer pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1225
- Application of Gibson under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 1577
- Application of Zhura pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2024] NSWSC 198
- Potier v Attorney General for NSW (2015) 89 NSWLR 284; [2015] NSWCA 129
- AB v Judicial Commission of NSW (Conduct Division) [2018] NSWCA 264; (2018) 365 ALR 163
- Russell v Russell (1976) 134 CLR 495; [1976] HCA 23
- R v Obeid (No 8) [2016] NSWSC 388
- Matthews v R (No 2) [2013] NSWCCA 194
- Hendry v State of Western Australia [2023] FCA 1670