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Einfeld v The Queen (No 2)

Einfeld v The Queen (No 2)

Case [2008] NSWCCA 243 14 October 2008

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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 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

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…

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 Einfeld v The Queen (No 2)

Details

AGLC: Einfeld v The Queen (No 2) [2008] NSWCCA 243
Case: [2008] NSWCCA 243
Decision Date: 14 October 2008

CaseChat Overview and Summary

In the matter of Einfeld v The Queen (No 2), the applicant, Marcus Richard Einfeld, sought to appeal against an order made by James J in the Supreme Court of New South Wales, which declined to quash certain counts of an indictment against him and dismissed his application for a 12-month adjournment due to the intensity of media publicity surrounding the case. The primary legal issue before the New South Wales Court of Criminal Appeal was whether the non-publication order made by James J prohibiting the reporting of the appeal and its outcome should be continued. This order was made to prevent any potential prejudice to the applicant’s right to a fair trial.

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