FEDERAL COURT OF AUSTRALIA Hoang v The Queen [2000] FCA 496 PRACTICE AND PROCEDURE - urgent application appealing against a decision of a single judge of the ACT Supreme Court not to forbid publication of certain evidence under s 83 of the Evidence Act 1971 (ACT) - power of a single judge of the Federal Court to entertain such an application. Evidence Act 1971 (ACT), s 83, s 83(1) Federal Court of Australia Act 1976, s 23, s 25(2)(a), s 25(2)(b), s 50 Federal Court Rules, O 46 r 6(1), O 52 r 17 Clarke v Director of Public Prosecutions (unreported, Finn J, 29 September 1998) referred Hempel v Moore (1987) 13 FCR 480 referred R v Lennon (1985) 38 SASR 356 referred House v The King (1936) 55 CLR 499 referred Niemann v Electronic Industries Ltd [1978] VR 431 referred NHAN VAN HOANG v THE QUEEN A 25 of 2000 FINN J 7 APRIL 2000 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 25 OF 2000 DISTRICT REGISTRY On appeal from a single judge of the Supreme Court of the ACT BETWEEN: NHAN VAN HOANG APPLICANT AND: THE QUEEN RESPONDENT JUDGE: FINN J DATE OF ORDER: 7 APRIL 2000 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. Publication of evidence given by the applicant, Nhan Van Hoang, and by Detective Constable Jamieson before Miles CJ on 6 April 2000 be forbidden. 2. Inspection in the Registry of the application for leave to appeal, and the draft notice of appeal if appended thereto, be prohibited. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 25 OF 2000 On appeal from a single judge of the Supreme Court of the ACT BETWEEN: NHAN VAN HOANG APPLICANT AND: THE QUEEN RESPONDENT JUDGE: FINN J DATE: 7 APRIL 2000 PLACE: CANBERRA REASONS FOR JUDGMENT 1 This matter has come on as a matter of urgency. The applicant, Nhan Van Hoang, pleaded guilty on 9 February 2000, to a charge alleging he possessed a trafficable quantity of heroin. He was committed to the Supreme Court for sentence. Yesterday, 6 April 2000, application was made to adjourn the sentencing proceeding. In the course of that hearing, application was made to Miles CJ to prohibit the publication of evidence given on the adjournment application under s 83(1) of the Evidence Act 1971 (ACT). The Chief Justice declined to make such an order and it is from that decision that the applicant applies to this court. 2 The matter first came on before me yesterday afternoon. I stood it over until today for further hearing. At the time I expressed concern as to the power, if any, I had as a judge of this court to make the order that was now being sought from this court to forbid the publication of the evidence in question. Notwithstanding that an appeal process has been instituted and the power the court or a judge thereof has under O 52 r 17 to grant a stay of execution, that rule is inapt to deal with an order of the type made by Miles CJ. It was in the nature of a refusal to make an order. There was simply nothing to stay. I had previously adverted to the difficulty that such an order can create in Clarke v Director of Public Prosecutions (unreported, Finn J, 29 September 1998). 3 The issue of the power to forbid or prohibit publication of evidence where the appeal itself relates to the decision not to prohibit the publication of that evidence, is the matter that has concerned me today. Given the doubt as to whether s 23 of the Federal Court of Australia Act 1976 could be invoked in such a case - it is the appellate, not the original, jurisdiction of this court that is being exercised in this matter: see Hempel v Moore (1987) 13 FCR 480 at 484 - and given the limited circumstances in which a judge of the court is authorised to exercise the appellate jurisdiction of the court: see Federal Court of Australia Act, s 25(2)(a) and (b); the course I have adopted has been to entertain the application for leave on its merits. It is clear, though, that the real purpose of the proceeding today was not to have that application heard. Indeed the applicant, who is supported in this matter by the Director for Public Prosecutions, has as his principal purpose the obtaining of an order suppressing publication of the material in question until the application is fully prepared. 4 Nonetheless, I have taken the course I have foreshadowed of entertaining the application for leave. By so doing I thus attract the power conferred by s 50 of the Federal Court of Australia Act which allows the court at any time during or after the hearing of a proceeding to make an order forbidding publication of particular evidence, if it appears to the court to be necessary in order to prevent prejudice to the administration of justice. 5 If it would be otherwise appropriate to do so for reasons related to the substance of the appeal itself and the application for leave, this is an appropriate case to make an order under s 50. The publication sought to be restrained would destroy the subject matter of the appeal if that publication was allowed to occur. It would thus render futile the appellate procedures of this court and would compromise its processes. The s 50 application is, in substance, an application to preserve the subject matter of the projected appeal. Without a s 50 order there would, relevantly, be prejudice to the administration of justice. 6 Turning to the application for leave itself, it is founded first and foremost on the proper meaning of s 83 of the Evidence Act 1971 and of the proper exercise of discretion in relation to it. Section 83(1) provides: "Where it appears to a court that - (a) the publication of evidence, given or intended to be given, in a proceeding before that court, is likely to prejudice the administration of justice; or (b) in the interests of the administration of justice, it is desirable that the name of a party to, or a witness, or intended witness, in such a proceeding be not published; the court may, at any time during or after the hearing of the proceeding, make an order - (c) forbidding the publication of the evidence or a specified part of the evidence, or of a report of the evidence, either absolutely or subject to such conditions as the court specifies or for such period as is specified,; or (d) forbidding the publication of the name of such a party or witness." 7 Evidence as to certain matters was given by the applicant and by Mr Jamieson, a detective constable of the Australian Federal Police, in the adjournment proceedings before Miles CJ. The no publication order sought, I should add, relates to the publication of their evidence. Given the urgency of the matter, the applicant has not as yet filed an application for leave to appeal or a draft notice of appeal. Counsel for the applicant has undertaken so to do. 8 The foreshadowed grounds of appeal are as follows. First, that his Honour erred in law in the construction he placed on the terms "interests of the administration of justice", in that he did not have regard (inter alia) to public interest considerations encompassed by those terms including encouraging persons to come forward with information about criminal offences and to co-operate in giving evidence with respect to them: see R v Lennon (1985) 38 SASR 356. The second ground is founded on House v The King (1936) 55 CLR 499. It is that his Honour's exercise of discretion miscarried in that he failed to take into account material considerations. His Honour's reasons I should add were given in an ex tempore judgment and were understandably brief. 9 The principles to be applied on an application for leave to appeal are not controversial. They have been referred to as the Niemann principles: see Niemann v Electronic Industries Ltd [1978] VR 431. Their satisfaction requires the court to consider first whether in all the circumstances the decision in question is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and secondly, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. 10 Given the urgency with which the matter has been brought on counsel have not been able fully to develop the argument before me in relation to the application for leave. The essence of what was being sought, as I indicated earlier, was an order forbidding publication. Without expressing a view on the merits of the appeal itself, I am satisfied that there is material that would cause a Full Court to consider seriously the granting of leave. The foreshadowed appeal itself does raise important questions relating to the balancing of the public interest in the open administration of justice and the public interest in protecting the administration of justice, if necessary, by the suppression of information. 11 Because the application for leave and the appeal itself are closely connected in terms of the subject matter that will need to be traversed, because the parties have not had the opportunity fully to develop the submissions on the matter, and importantly, because I think the matter is one that should be considered in its entirety by a Full Court of this court, the course I intend to take is to refer the hearing of the application and of the appeal to the Full Court. Because the jurisdiction of the court in relation to the application has been invoked and material has been filed in court in support of the application, I am in a position to make an order under s 50 of the Federal Court of Australia Act. 12 The order of the court will be that the publication of the evidence given by the applicant, Nhan Van Hoang, and by Detective Constable Jamieson before Miles CJ on 6 April 2000 be forbidden. Equally in anticipation of the filing of the application for leave to appeal and a draft notice of appeal, I make an order under O 46 r 6(1) of the Federal Court Rules prohibiting inspection in the Registry of that application for leave to appeal, and the draft notice of appeal if it is appended thereto. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 14 April 2000 Counsel for the Applicant: Mr G Corr Solicitor for the Applicant: Legal Aid (ACT) Counsel for the Respondent: Mr R Refshauge Solicitor for the Respondent: Director of Public Prosecutions (ACT) Date of Hearing: 7 April 2000 Date of Judgment: 7 April 2000