Supreme Court New South Wales Medium Neutral Citation: R v Warwick (No.23) [2018] NSWSC 698 Hearing dates: 15 May 2018 Date of orders: 15 May 2018 Decision date: 15 May 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Order 1 sought in the Accused's Notice of Motion filed 15 May 2018 is dismissed Catchwords: JUDGMENTS AND ORDERS — suppression and non-publication orders — application for non-publication order to prevent publication of Crown opening address in criminal trial — whether non-publication order is necessary to prevent prejudice to the proper administration of justice — whether order is necessary to protect the safety of the accused and his family — public interest in publication of criminal proceedings — open justice — no prejudice to proper administration of justice — no evidence of rational fear of risks to safety — application refused Legislation Cited: Court Suppression and Non-publication Orders Act 2010 Criminal Procedure Act 1986 Cases Cited: John Fairfax Publications Pty Limited v The District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown Leonard John Warwick (Accused) Representation: Counsel: K McKay / G Christofi (Crown) A R Conolly / E Ramsay (Accused) D Sibtain (9 Network, ABC, Channel 7, Fairfax Media Ltd, Nationwide News Pty Ltd) Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused) File Number(s): 2015/222068 Publication restriction: Not to be published until further order of the Court. Non publication order lifted on 14 February 2020. EX TEMPORE Judgment 1. This is an application by the Accused seeking that the Court make a non‑publication order pursuant to s 7 of the Court Suppression and Non‑publication Orders Act 2010 ("the Act") in relation to the opening statement of the Crown, which is shortly to be delivered. 2. The Accused submitted that the Court should make an order pursuant to s 7 of the Act on the ground set out in s 8(1)(c) of the Act, that the order is necessary to protect the safety of any person and, inferentially, that the order is necessary, in accordance with s 8(1)(a) of the Act, to prevent prejudice to the proper administration of justice. 3. Counsel for a number of media organisations opposes the making of such order. Nature of the Trial 1. This is a trial to be conducted by a judge alone and not in front of a jury. For reasons associated with the adequacy of preparation for the trial and because of the flexibility which a judge alone trial has as one of its characteristics, the Court has determined that the trial will proceed by the taking of an opening statement today by the Crown, followed by an adjournment until 9 July when the evidence will commence. Submissions of the Accused 1. The Accused submitted that he will not be in a position to make an opening statement of the kind contemplated by s 159 of the Criminal Procedure Act 1986 immediately after the Crown's opening, and will not be in a position to make such statement until the trial resumes on 9 July 2018. 2. The Accused submitted that although he has pleaded not guilty to each of the offences and that he is innocent of any involvement in these offences, the Crown opening will not be responded to for some weeks by his lawyers. In those circumstances, having regard to the particular features of this trial which the Accused says are unique, the Accused submitted that adverse publicity generated by the Crown's opening statement, followed by a gap of some weeks before he articulates his opening statement, will not reflect the proper administration of justice and, therefore, he is entitled to a non-publication order under the Act. 3. The Accused also submitted that, given the nature of the crimes with which he is charged and what would be a natural reaction by members of the public to the fact that he is charged with such crimes, even though he is presently confined in custody, his own safety is nevertheless at risk, as is the safety of the members of his family. Submissions of the Media 1. Counsel for the media organisations submitted that it is important to note that it is not asserted that the failure to grant a non-publication order would result in any prejudice to the conduct of a fair trial. He submitted that where a question of safety of an individual or the Accused is an issue, the Court requires some evidence to support a conclusion of a rational fear, sufficient to constitute one of the grounds required before an order can be made under the Act. 2. Finally, he submitted that it is important to note, on the existing authorities, that the word "necessary", where it is to be found in ss 8(1)(a) and 8(1)(c) of the Act, does not mean "convenient" or "reasonable" but, rather, sets a much higher test. Applicable Legal Principles 1. Prior to the introduction of the Act, the Court of Appeal considered the principles of open justice and of a fair trial in John Fairfax Publications Pty Limited v The District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344. At [18], Spigelman CJ said: "It is well-established that the principle of open justice is one of the most fundamental aspects of the system of justice of Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public." 1. At [19]-[20], the Chief Justice said: "[19] It is also well-established that the exceptions to the principle of open justice are few and strictly defined. (See, for example, McPherson v McPherson [1936] AC 177 at 200; R v Tate (1979) 46 FLR 386 at 402.) It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional constraints. . . [20] The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings." 1. At [21], his Honour also observed: "From time to time the courts do make orders that some aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional." (emphasis added) 1. More recently, in Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311, the Court of Appeal considered the question of non-publication and suppression orders, in the light of the enactment of the Act. 2. At [26], Bathurst CJ and McColl J said that: "The principle of legality favours a construction of the legislation which, consistently with the statutory scheme, has the least adverse impact upon the open justice principle and common law freedom of speech, and, where constructional choices are open, so as to minimise intrusion upon that principle: Hogan v Hinch at [5], [27] (French CJ); see also Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 (Kirby P)." 1. Their Honours then considered the meaning of the word "necessary", noting that it was an "operative condition" for the making of a suppression order or non-publication order under s 8 of the Act, that it be "necessary" to do so. 2. At [31], their Honours said: "Significantly, an order is not necessary if it appears to the Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as a result of some 'balancing exercise', the order appears to have one or more of those characteristics." 1. In that particular case, their Honours concluded that the suppression orders made by the Court below were not necessary to prevent prejudice to the administration of justice, and that it was contrary to the requirement to treat open justice as a primary objective referred to in s 6 of the Act for the Court to exercise its power to suppress the information. 2. The Court concluded, in that case, that the suppression of such information would "undermine, rather than ensure, public confidence in the administration of justice": [55]. 3. In noting s 6 of the Act, the Court emphasised the requirement that, in deciding whether to make suppression order or a non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. Discernment 1. The burden which falls on an applicant for a non-publication order is a heavy one, which is not easily discharged. What is, in substance, in issue now is whether the Crown's opening statement ought be ordered not to be published, in effect, for a period of about eight weeks. I am simply unsatisfied that a delay in such publication is necessary to prevent prejudice to the proper administration of justice. There is no reason to think that publication of the Crown's opening statement would be read or understood as being anything more than a statement of what the Crown intends to prove at the trial. It would be unlikely to be regarded as a conclusion by a Court of the guilt of the Accused. 2. Equally, it is quite clear, although the Accused may choose not to make an opening statement immediately after the Crown opening, what the position of the Accused is: he is not guilty of any of the charges, he denies that he was involved in any way with the crimes and says that he is innocent of the allegations made in the Indictment by the Crown. That fact will not have escaped the notice of anybody who wishes to publish the Crown opening statement. 3. Whilst I understand that many people in the position of the Accused, against whom it is alleged that they have committed serious crimes, naturally fear for their safety in light of any adverse public reaction, and naturally are concerned for the safety of the members of their family, there is no material available to me which would enable me to reach a conclusion that the non-publication order which is sought is necessary to protect the safety of any person. It may be thought to be reasonable or convenient, but that does not give adequate weight to the word "necessary" in the legislation. 4. I am wholly unpersuaded that a non-publication order, with respect to the Crown opening, is necessary on either of the grounds contended for. This is not an exceptional case of the kind that warrants the making of any non‑publication order with respect to the Crown opening. 5. Further, I need to keep in mind the principle manifested in s 6 of the Act, which, as stated above, expresses Parliament's intention that the safeguarding of the public interest in open justice is to be the primary objective of the Court in the administration of justice. In light of that statutory constraint, I am unable to uphold the application made by the Accused, and Order 1 in the Notice of Motion filed today seeking a non-publication order is dismissed. Orders 1. I make the following orders: 1. Order 1 sought in the Accused's Notice of Motion filed 15 May 2018 is dismissed. ********** Amendments 18 February 2020 - Non publication order lifted on 14 February 2020. 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: 18 February 2020