Supreme Court New South Wales Medium Neutral Citation: R v Macdonald; R v Maitland (No 5) [2022] NSWSC 1211 Hearing dates: 7 September 2022 Date of orders: 7 September 2022 Decision date: 07 September 2022 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: (1) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), any conversations between the accused Mr Macdonald and his legal representative in the course of the proceedings of 7 September 2022 up until 1:00pm are to be suppressed. (2) Pursuant to s 11 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the order is to apply throughout the Commonwealth. (3) The order is to have effect until the conclusion of this trial or any related appeal proceeding. Catchwords: CRIMINAL PROCEDURE – trial – suppression and non-publication orders – microphone on in dock – private conversations – legal professional privilege – suppression orders made Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 9 Category: Procedural rulings Parties: Regina (Crown) Ian Michael Macdonald (Accused) John William Maitland (Accused) Representation: Counsel: P Hogan (Crown) R Rajalingam (Macdonald) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Michael Bowe Solicitors (Macdonald) J W Maitland (self-represented) File Number(s): 2015/59990; 2015/59940 Publication restriction: Nil EX TEMPORE JUDGMENT (REVISED) 1. HIS HONOUR: I have been informed that in the course of this morning's proceedings the microphone in the dock, where the accused, Mr Macdonald, is seated, was switched on. It appears to be the case that that was through inadvertence. The consequences of that microphone being on, it appears, is that utterances made by Mr Macdonald and utterances made by his solicitor in the course of conversations between them may have been audible to other persons, either physically present or, as I understand it, the more significant concern is persons with an electronic presence, including the media. 2. I am not aware of the content of any such conversations, nor is it appropriate that I be made aware of such content. There would be a prima facie assumption that any such conversations would be the subject of legal professional privilege; quite apart from that, the fact that the participants, the accused in a criminal trial and his legal representative, believed that they were private is, itself, a foundation for ensuring they remain private. 3. The accused, Mr Macdonald, seeks a non-publication order in relation to anything that may have been heard over that microphone in the course of this morning's proceedings. I am of the view that there are grounds for making such an order, one such ground being s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), that is, that the order is necessary to prevent prejudice to the proper administration of justice. That would certainly be the case in the event that any conversations recorded are, properly, the subject of legal professional privilege. 4. I am also of the view that to the extent that any conversations picked up might not be the subject of legal professional privilege, it is necessary to make such an order pursuant to s 8(1)(d), that is, the order is necessary to avoid causing undue distress or embarrassment to a party to criminal proceedings. 5. On that basis, and in particular having regard to the foundation for the order, it is my view that the appropriate order is a suppression order with respect to anything that may have been heard, rather than simply a non-publication order. 6. Accordingly, I order: 1. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), any conversations between the accused Mr Macdonald and his legal representative in the course of the proceedings of 7 September 2022 up until 1:00pm are to be suppressed. 2. Pursuant to s 11 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the order is to apply throughout the Commonwealth. 3. The order is to have effect until the conclusion of this trial or any related appeal proceeding. ********** Amendments 08 September 2022 - Amendment to coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 September 2022