R v Ngo; Dinh; Dao [2001] NSWSC 578

New South Wales Supreme Court

CITATION : R v Ngo; Dinh; Dao [2001] NSWSC 578 CURRENT JURISDICTION: Common Law Division Criminal FILE NUMBER(S) : SC 70086/98; 70059/99; 70223/98 HEARING DATE(S) : 26 June 2001 JUDGMENT DATE : 26 June 2001

Regina PARTIES : Phuong Canh Ngo - Accused David Duy Thai Dinh - Accused Tu Quang Dao - Accused JUDGMENT OF : Dunford J

Mr M.A.G. Tedeschi QC / Mr R.A. Hulme - Crown COUNSEL : Mr J.C. Nicholson SC / Mr P.J. Pearsall - Ngo Mr R. Hoenig - Dinh Mr G.J.T. Cusack QC / Ms B.J. Rigg - Dao S.E. O'Connor - Crown SOLICITORS : L.M.G. Solicitors & Attorneys - Ngo Legal Aid Commission of NSW - Dinh Jackson Smith, Solicitors - Dao CATCHWORDS : PRACTICE & PROCEDURE - suppression orders regarding names and addresses of witnesses LEGISLATION CITED : Witness Protection Act 1995 DECISION : Suppression orders continued.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL DUNFORD J Tuesday, 26 JUNE 2001 70086/98 - R v Phuong Canh NGO 70059/99 - R v David Duy Thai DINH 70223/98 - R v Tu Quang DAO JUDGMENT - On application for continuation of suppression orders. 1 HIS HONOUR: The Crown has applied for an order continuing the suppression orders formerly made, as set out in exhibit Q on the voir dire. 2 For the reasons given by Wood CJ at CL in his judgment of 16 July 1999, I am satisfied that I have power to continue the suppression orders made during the last trial. 3 These suppression orders, it seems to me, fall into a number of categories. Some were probably made originally to ensure that the jurors or potential jurors did not hear or see any information which they should not have received outside the evidence presented to them during the trial. 4 In other cases there was a number of witnesses who expressed fears that they may suffer harm if their identity or address were to become known. In some cases pseudonym orders were made. In other cases particular arrangements were made for the giving of their evidence. These people were reluctant to give evidence but they were given an assurance, in some cases by the Crown, that application would be made to the Court for a suppression order. This was done and a suppression order was made. They then gave their evidence on the basis that their names and addresses were suppressed. It would seem to me to be a breach of trust towards those people for the Court to now lift the suppression orders after they have given their evidence. 5 Another category is the case where, although the witness' name and address are known to the accused because of their involvement in the activities leading up to the trial, they are associates of persons engaged in criminal activities and in many cases have been engaged in criminal activity themselves. A number of these people fear, not so much retribution from the accused or their associates, but fear that they may suffer harm because their criminal associates would regard them as having assisted police and acted as informers, an activity which is not approved of amongst persons with whom they mix. They have a very real fear, I believe, that if their cooperation were known they would be at risk. 6 Another category is the indemnified accomplice witnesses to whom the Witness Protection Act 1995 applies. 7 The final category is persons who have not been involved in any criminal activity and do not have criminal associates. In the case of these persons, their contact with the case has been somewhat remote, but in many cases they have been essential witnesses. They are entitled to continued privacy and should not be subjected to harassment and possible loss of business in some cases, and loss of friends in other cases, because they have been required to give evidence or their names and residential or business addresses have been disclosed. 8 I hesitated before making these orders and required evidence from Superintendent Kaldas as I would not be prepared to make any suppression orders which had a wider ambit than was necessary, because that would impose an unnecessary and inappropriate restriction on the freedom of the press. 9 Having heard the evidence and having considered the matter, and in the case of some of the witnesses having referred to the various judgments of Wood CJ at CL when he imposed the original suppression orders, I am satisfied that the appropriate course is to continue all the suppression orders set out in the document that has become exhibit Q on the voir dire in the terms of that document.