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 LEGISLATION CITED: Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986
Evidence Act 1995 (NSW)CATEGORY: Consequential orders CASES CITED: Einfeld v R [2008] NSWCCA 215
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 592PARTIES: 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
2008/0000240
Tuesday 14 October 2008BELL JA
HULME J
LATHAM J
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that, “the fact of the filing of this notice of motion and the subsequent proceedings concerning the orders sought not be published.”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…
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- AGLC
- Einfeld v The Queen (No 2) [2008] NSWCCA 243
- Case
- [2008] NSWCCA 243
- Decision Date
CaseChat Overview and Summary
The Court of Criminal Appeal considered the principle of open justice, which mandates that the administration of justice must take place in open court, except in circumstances where its observance would frustrate the administration of justice or other public interests. The Court also considered the inherent power to prevent an abuse of its process by ensuring fair administration of justice. In examining whether the non-publication order should be continued, the Court assessed whether there was any exceptional feature that justified the continuation of the order. The Crown Prosecutor argued that there was no exceptional feature, and Mr Campbell, representing the applicant, did not identify any specific prejudice beyond the fact that the Court's reasons for its decision referred to the evidence that the Crown proposed to rely upon in support of counts 1 to 5.
The Court concluded that the trial judge’s non-publication order did not constitute an exceptional feature warranting the continuation of the non-publication order by the Court of Appeal. Additionally, the Court found that the material in the Court’s reasons did not present any new information that had not already been in the public domain. The Court was further influenced by the principle that jurors, when properly directed, are capable of rendering a true verdict based on the evidence presented to them. For these reasons, the Court decided that there was no necessity to continue the non-publication order.
The Court ordered that the non-publication order made on 17 June 2008 be dissolved.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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