Einfeld v R (No 2) [2008] NSWCCA 243

New South Wales Court of Criminal Appeal

CITATION: Einfeld v R (No 2) [2008] NSWCCA 243

HEARING DATE(S): 14/10/08 JUDGMENT OF: Bell JA at 1; Hulme J at 15; Latham J at 16

EX TEMPORE JUDGMENT DATE: 14 October 2008

DECISION: Non-publication order made on 17 June 2008 is dissolved

Criminal Appeal Act 1912 (NSW) LEGISLATION CITED: Criminal Procedure Act 1986 Evidence Act 1995 (NSW)

CATEGORY: Consequential orders

Einfeld v R [2008] NSWCCA 215 CASES CITED : John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324 John Fairfax and Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 R v Glennon (1992) CLR 592

PARTIES: Marcus Richard Einfeld (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2008/00000240

COUNSEL: D Campbell SC / T. Moisidis (Appellant) W G Roser SC (Respondent)

SOLICITORS: Verekers Lawyers (Appellant) S Kavanagh (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2008/240001

LOWER COURT JUDICIAL OFFICER: James J

LOWER COURT DATE OF DECISION: 17/6/08

IN THE COURT OF CRIMINAL APPEAL 2008/0000240

BELL JA HULME J LATHAM J

Tuesday 14 October 2008 Marcus Richard Einfeld v R (No 2) Judgment 1 BELL JA: Marcus Richard Einfeld was committed for trial to the District Court in Sydney on nine counts, six of which charged him with offences under section 319 of the Crimes Act of doing an act with intent to pervert the course of justice. The Chief Justice granted an exemption under section 128 of the Criminal Procedure Act 1986 (NSW) permitting the presentation of the indictment in the Supreme Court. The matter was first listed in this Court on 7 March 2008. On that occasion Mr D Campbell SC, who appeared on Mr Einfeld's behalf, foreshadowed an application challenging a number of counts in the indictment. The proceedings were stood over for directions before James J, the designated trial judge. 2 On 15 April 2008 a notice of motion was filed on the applicant's behalf claiming orders including (i) that counts 1 to 5 in the indictment be quashed; and (ii) that the trial be adjourned for a period of 12 months because of the intensity of the publicity that had surrounded the matter. The application came on for hearing before James J on 8 May 2008. His Honour made an order that, "the fact of the filing of this notice of motion and the subsequent proceedings concerning the orders sought not be published." On 19 May 2008 his Honour dismissed the motion. 3 The applicant sought leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) against his Honour's determination not to quash counts 1 to 5 in the indictment. When the proceedings came before this Court for hearing the Crown Prosecutor joined in an application made by Mr Campbell that the Court prohibit the publication of the application for leave to appeal and the proceedings on it pending the conclusion of the trial. The Court made the order that the parties sought. 4 The parties were notified prior to judgment being handed down this morning that the Court would be reconstituted and would be assisted by submissions concerning why the non-publication order should be continued. The matter is referred to in paragraphs [2] to [4] of the principal judgment: Einfeld v R [2008] NSWCCA 215. 5 The applicable principle is stated by McHugh J in John Fairfax and Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465, at 476: "The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it." 6 The principles are discussed in John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324, 61 NSWLR 344. Spigelman CJ observed in that case that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. His Honour pointed out that the exceptions to the principle are few and strictly defined and that the occasions on which the Court may make an order prohibiting publication are to be regarded as exceptional (at 325-353 [17]-[23]). 7 The Court's inherent power extends to preventing an abuse of its process, relevantly, by ensuring the capacity of the Court to administer justice with fairness. As Spigelman CJ explained in John Fairfax v District Court, the principles of open justice and of fair trial at times present as in conflict and a judgment is to be made as to which is to prevail in the circumstances. The principal feature of this case that Mr Campbell identified as exceptional, justifying the continuation of the non-publication order, was the trial judge's non-publication order from which no appeal had been brought. In Mr Campbell's submission, there would be a tendency were this Court's non-publication order not to remain in place for his Honour's order to be undermined. 8 This Court should not approach the question of whether a non-publication order should be made in respect of proceedings on appeal constrained by the order made by the trial judge. I approach the determination upon the basis that the Court would not continue the order prohibiting publication of the fact of the appeal and its outcome unless persuaded that it was necessary in order to secure the fair trial of Mr Einfeld. 9 The Crown Prosecutor submitted that there was no exceptional feature justifying the continuation of the order. Mr Campbell did not identify any specific prejudice beyond the circumstance that the judgment of this Court refers in a summary way to the evidence that the Crown proposed to rely upon in support of counts 1 to 5. It was not suggested that any material canvassed in the Court's reasons was material that has not previously been in the public domain. 10 The Crown Prosecutor informed the Court that the Crown proposes to proceed on an indictment charging Mr Einfeld in identical terms to the terms of counts 6 to 9 of the indictment. The Crown has served a notice of its intention at the trial to lead evidence of the material that was to be the subject of counts 1 to 5 under s 97 and 98 of the Evidence Act 1995 (NSW). The determination of that application is a matter for the trial judge. 11 The principal consideration advanced by Mr Campbell, apart from the submission to which I have referred, is that the trial is now fixed to commence on 3 November and that it is desirable that there not be publicity of the factual matters to which I have referred. 12 Returning to the test of necessity explained by Spigelman CJ in John Fairfax Publications, his Honour observed at 366 [103]: "There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them." 13 His Honour also noted the observations of Mason CJ and Toohey J in R v Glennon (1992) 173 CLR 592 at 603: "The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury acting in conformity with the instructions given to them by the trial judge will render a true verdict in accordance with the evidence." 14 There is no feature of the material set out in the principal judgment which, to my mind, gives rise to the necessity to direct non-publication of the fact of the appeal and of its outcome in order to ensure a fair trial. The high public principle of open justice should be given full weight. For these reasons, I propose that the non-publication order made on 17 June 2008 be dissolved. 15 HULME J: I agree. 16 LATHAM J: I also agree. 17 BELL JA: The order of the Court is as I have stated.