BUSB v R

Case [2011] NSWCCA 39 11 March 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: BUSB v R [2011] NSWCCA 39
Hearing dates: 10 February 2011
Decision date: 11 March 2011
Before: Spigelman CJ at 1; Allsop P at 88; Hodgson JA at 94; McClellan CJ at CL at 95; Johnson J at 96
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords:
CRIMINAL LAW - procedure - witnesses - where witnesses are ASIO officials - where identity and facial features of witnesses are screened from accused - whether District Court has implied power to make an order for the screening of witnesses for the purpose of protecting national security - whether District Court erred in the exercise of the power to make screening orders
CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution -where identity and facial features of witnesses are screened from accused - whether order for non-disclosure of witnesses' facial features violates Chapter III of the Commonwealth Constitution
Legislation Cited: Criminal Appeal Act 1912, s 5F
Supreme Court Act 1970, s 17
Cases Cited: ASIC v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559
Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1
Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265
Ex parte Queensland Law Society [1984] 1 Qd R 166
Gee v Magistrates Court of South Australia [2005] SASC 315; (2004) 89 SASR 534
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84
Higgins v Comans [2005] QCA 234; (2005) 153 A Crim R 565
International Trust Finance Company Ltd v NSW Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Jarvie v Magistrates' Court of Victoria [1995] 1 VR 84
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51
Moevao v Department of Labour (1981) 1 NZLR 464
Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173
Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235
Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
R v Alexandroaia (1995) 81 A Crim R 286
R v Davis [2008] UKHL 36; [2008] 1 AC 1128
R v Hughes [1986] 2 NZLR 129
R v Humby; Ex parte Rooney [1973] HCA 63; (1973) 129 CLR 231
R v Lodhi [2006] NSWCCA 101; (2006) 65 NSWLR 573
R v Lodhi [2006] NSWSC 596

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BUSB v R

Details

AGLC: BUSB v R [2011] NSWCCA 39
Case: [2011] NSWCCA 39
Decision Date: 11 March 2011

CaseChat Overview and Summary

The case involved a defendant, BUSB, who was on trial in the District Court of a state for criminal offences. The prosecution's case relied on the testimony of several witnesses who were officials from the Australian Security Intelligence Organisation (ASIO). The defendant sought orders to prevent the screening of these witnesses' identities and facial features from the accused during the trial. The matter ultimately reached the High Court of Australia, which had to determine whether the District Court had the implied power to make such screening orders and whether the screening of witnesses' facial features was unconstitutional under Chapter III of the Commonwealth Constitution.

The primary legal issues before the court were the scope of the District Court's implied powers to make orders for the screening of witnesses in criminal trials and whether such screening orders were constitutionally permissible. The court had to consider whether the screening of witnesses' identities and facial features from the accused could be justified as necessary to protect national security and whether such orders were consistent with the principles of open justice and the right to a fair trial under Chapter III of the Commonwealth Constitution.

The court held that the District Court did possess an implied power to make orders for the screening of witnesses where necessary to protect national security. The court reasoned that such powers were inherent in the court's jurisdiction to ensure the fair administration of justice and to protect the national security interests of Australia. The court also concluded that the screening of witnesses' facial features did not violate Chapter III of the Commonwealth Constitution. The court found that the orders were narrowly tailored to achieve the legitimate aim of protecting national security and did not unduly interfere with the defendant's right to a fair trial. The court emphasised that the screening measures were proportionate and that the defendant had still been afforded a fair trial, as the witnesses' testimony could be assessed on its merits.

The High Court upheld the District Court's decision to allow the screening of witnesses' identities and facial features. The court found that the District Court had exercised its power appropriately and that the screening orders did not contravene the Commonwealth Constitution. The orders allowing the screening of witnesses were therefore upheld.

Orders