Attorney-General for NSW v Nationwide News Pty Limited (No 3) [2008] NSWCCA 286

New South Wales Court of Criminal Appeal

CITATION: Attorney-General for NSW v Nationwide News Pty Limited (No 3) [2008] NSWCCA 286

HEARING DATE(S): 31 October 2008

JUDGMENT DATE: 2 December 2008

JUDGMENT OF: Hodgson JA at 1; Hislop J at 9; Latham J at 10

DECISION: See orders at par [8].

CATCHWORDS: PRACTICE – Criminal Law – Public interest immunity – Open justice principle – Application in relation to confidential affidavits read on voir dire and information derived from those affidavits.

CATEGORY: Principal judgment

CASES CITED : Attorney-General for NSW v Nationwide News Ply Limited & Anor [2007] NSWCCA 307 R v. Donai [unreported, 2 October 2007, Supreme Court, Fullerton J]

ATTORNEY-GENERAL FOR NSW (Appellant) PARTIES: NATIONWIDE NEWS PTY LIMITED (First Respondent) JOHN FAIRFAX PTY LIMITED (Second Respondent)

FILE NUMBER(S): CCA 2007/1450-003

COUNSEL: Mr P SINGLETON/ Ms M ENGLAND (Appellant) Mr T MALTZ (Respondents)

SOLICITORS: Crown Solicitor (Appellant) Blake Dawson Waldron (Respondents)

IN THE COURT OF CRIMINAL APPEAL CCAP 2007/1450-003

HODGSON JA HISLOP J LATHAM J

2 DECEMBER 2008 ATTORNEY-GENERAL FOR NSW v NATIONWIDE NEWS PTY LIMITED and Anor (No 3) Judgment 1 HODGSON JA: On 5 November 2007 this Court gave its principal judgment in this appeal: [2007] NSWCCA 307. It then made an order that that judgment and the judgment appealed from were not to be published for six months, and also gave leave to the parties to make submissions concerning that order. 2 The parties subsequently reached agreement that the judgment could be published with certain passages omitted, and that agreement was given effect to by consent orders made on 6 March 2008, which were to remain in force until 1 October 2008, or if by that date an application had been made for the non-publication order to continue, until resolution of that application. 3 The Attorney-General did apply for continuation of the non-publication order before 1 October 2008, seeking that it be made permanent. That application was opposed by Nationwide News. 4 The basis of the application is that the omitted passages contained information which came from confidential affidavits read on the non-publication application, and that publication of those passages would be against the public interest for reasons appearing from a further confidential affidavit. 5 It was submitted by Mr Maltz for Nationwide News that there was in fact no public interest or no significant public interest against the publication of the presently omitted passages, and particularly those parts of the passages which disclosed information that had also been disclosed in affidavits read openly. 6 In my opinion, there is a substantial public interest in courts being fully apprised of information relevant to claims of public interest immunity, and the open justice principle applies less strongly to confidential information provided for the purpose of determining such claims. Although there is force in the contentions of Nationwide News, in my opinion there is sufficient public interest in the non-publication of the presently omitted material to justify extending the existing regime for a further two years, with liberty to the Attorney-General to seek a further extension within that time. In my opinion, this applies even to the category of material that Mr Maltz submitted had been disclosed openly: there is greater detail in passages in the judgment, and the context could give it greater impact. 7 The parties have agreed that there be no order as to costs. 8 Accordingly, I propose the following orders: (1) There shall be no publication of the following portions of the judgment of this Court in this matter ( Attorney-General for NSW v Nationwide News Ply Limited & Anor [2007] NSWCCA 307): (a) the 21st to 102nd words (inclusive) of paragraph 11; (b) the 16th to 38th and 64th to 102nd words (inclusive) of paragraph 12; (c) the 27th to 38th words (inclusive) of paragraph 13; (d) the 71st to 78th words (inclusive) of paragraph 17; (e) the 42nd to 47th, 68th to 72nd, 93rd to 95th, 133rd to 137th and 142nd to 145th words (inclusive) of paragraph 40; and (f) the 36th to 48th and 67th to 74th words (inclusive) of paragraph 44. (2) There shall be no publication of the following portions of the judgment below ( R v. Donai [unreported, 2 October 2007, Supreme Court, Fullerton J]): (a) the 97th to 114th words (inclusive) of paragraph 30; (b) the 72nd to 93rd, 102nd to 122nd and 127th to 148th words (inclusive) of paragraph 31; (c) the 7th to 9th, 13th to 43rd, 50th to 110th and 122nd to 185th words (inclusive) of paragraph 32; (d) the 6th to 80th words of paragraph 34; (e) the 24th to 39th words (inclusive) of paragraph 36; (f) the 180th to 242nd words (inclusive) of paragraph 46; (i) the 62nd to 82nd words (inclusive) of paragraph 53; (j) the 8th to 193rd words of paragraph 60; and (k) the 17th to 22nd and 89th to 105th words (inclusive) of paragraph 62. (3) Any publication of the second passage quoted in paragraph 9 of the judgment below ( R v. Donai [unreported, 2 October 2007, Supreme Court, Fullerton J]) shall substitute the pseudonym 'UC-2' for the eighth and 44th words in that quoted passage and the pseudonym 'UC-3' for the 49th word in that quoted passage. (4) Orders (1), (2) and (3) to remain in force only until 31 October 2010, or, if by that date an application has been made for a further extension of the orders, until resolution of that application. (5) The confidential affidavit dated 24 September 2008 to be placed in a sealed envelope and not to be accessed without an order of a Supreme Court Judge. 9 HISLOP J: I agree with Hodgson JA. 10 LATHAM J: I agree with Hodgson JA. **********