JB v Regina

[2019] NSWCCA 48

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	JB v Regina [2019] NSWCCA 48
Hearing dates:	11 February 2019
Date of orders:	20 March 2019
Decision date:	20 March 2019
Before:	Bathurst CJ at [1]; Hoeben CJ at CL at [34]; Simpson AJA at [35]
Decision:	(1)   Order 6 made on 24 March 2015 in these proceedings is amended by adding at the end the following words: “save that for the proper purposes of any disciplinary processes or proceedings under the Legal Profession Uniform Law (NSW) (and without limiting the generality of the foregoing prohibition on publication) it shall be permissible to disclose: (a)   the fact that the said person provided assistance to police in respect of the proceedings against JB and the investigation that led to those proceedings; and (b)   the fact that the said person provided assistance to police in respect of other matters (but not the number of other matters, nor any information about those matters or their nature).”
Catchwords:	CRIMINAL PROCEDURE – suppression and non-publication orders – variation – whether Bar Council had standing to bring an application for review – whether denial of procedural fairness
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Legal Profession Uniform Law (NSW)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 JB v R (No 2) [2016] NSWCCA 67 JB v R [2012] NSWCCA 12 JB v R [2015] NSWCCA 382 JB v The Queen [2013] HCA Trans 28
Category:	Consequential orders (other than Costs)
Parties:	The Council of the New South Wales Bar Association (applicant) Mr Terrance Thorpe (first respondent) Commissioner of Police (second respondent)
Representation:	Counsel: M Johnston SC (applicant) P Menzies QC with B K Nolan (first respondent) P Singleton (second respondent)   Solicitors: Bartier Perry Pty Ltd (applicant) Nolan Lawyers Pty Ltd (first respondent) NSW Crown Solicitor’s Office (second respondent)
File Number(s):	2009/802
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Court of Criminal Appeal Jurisdiction: Criminal Citation: N/A Date of Decision: 24 March 2015 Before: Hoeben CJ at CLAdams JMcCallum J File Number(s): 2009/802

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 10 September 2009 JB was found guilty by a jury of the murder of Edward Spowart. At the time of the offence, the applicant was a child. Both an appeal and application to the High Court of Australia for special leave was unsuccessful. An application was made pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into JB’s conviction for murder. On 20 November 2014, R A Hulme J determined that the proceedings should be referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW) pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001.

JB’s conviction for murder was subsequently quashed and a verdict of acquittal was entered. A suppression order was made on 24 March 2015 pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) to protect the identity of the person referred to as A107.

On 23 September 2016, the Director of Public Prosecutions referred Mr Thorpe, the Crown Prosecutor at the original trial, to the Legal Services Commissioner of NSW. On 29 November 2016, the Commissioner initiated a complaint in accordance with s 266(2) of the Legal Profession Uniform Law (NSW) and referred the complaint to the Council of the NSW Bar Association (Bar Council) on 16 January 2017. On 21 September 2017, the Bar Council referred certain allegations in the complaint to the NSW Civil and Administrative Tribunal pursuant to s 300 of the Legal Profession Uniform Law.

The complaint comprised of allegations that prior to the trial, Mr Thorpe and JB’s solicitor, Mr Kaufman were aware that JB’s support person, A107 was a police informer and resolved not to disclose this fact to the defence counsel at, or prior, to the trial of JB or on appeal. It was alleged that a significant aspect of the Crown case was that JB made admissions to A107 as a support person present because of JB’s age at a police station on 26 April 2008, following his arrest. It was also alleged that at the time that Mr Kaufmann was acting for JB he was also acting for A107 in connection with fraud proceedings.

Mr Thorpe complained that first, the use of certain material by the Bar Council contravened the suppression order and second, the effect of the suppression order was to deny Mr Thorpe procedural fairness as he could not use the material for his case. As a result, the Bar Council filed a notice of motion seeking a variation of the suppression order under s 13(3) of the Court Suppression and Non-publication Orders Act.

Mr Thorpe opposed the variation of the suppression order on two grounds:

Variation of the orders would deprive him of procedural fairness in the disciplinary proceedings;

The Bar Council had no standing to seek a review of the orders.

Whether the proposed orders would deprive Mr Thorpe of procedural fairness

The variation of the orders does not deny Mr Thorpe procedural fairness. Mr Thorpe has had an opportunity to be heard on whether the variation should be made. It remains open to Mr Thorpe to seek a further variation of the order or a stay of the disciplinary proceedings if those advising him remain of the view that his case cannot be properly presented without the use of the documents which remain the subject of the suppression order: [22]-[24] (Bathurst CJ); [34] Hoeben CJ at CL; [35] Simpson AJA.

Whether the Bar Council had standing to seek a review of the orders

The Bar Council had standing to bring the application for review. The persons referred to in s 13(2)(e) of the Court Suppression and Non-publication Orders Act are persons who have an interest in the maintenance or continuation of the suppression order at the time the application for review is made. In the present case, this includes the Bar Council and the Law Society: [25]-[32] (Bathurst CJ); [34] Hoeben CJ at CL; [35] Simpson AJA.

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 referred to.

Judgment

1. BATHURST CJ: On 10 September 2009 JB, who was a child at the relevant time, was found guilty by a jury of the murder of Edward Spowart. An appeal was unsuccessful: JB v R [2012] NSWCCA 12. An application to the High Court of Australia for special leave was also unsuccessful: JB v The Queen [2013] HCA Trans 28.

2. Subsequently an application was made on behalf of JB pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction for murder. The application was based on material discovered subsequent to the exhaustion of the avenues of appeal and related to an important prosecution witness in the trial.

3. On 20 November 2014, R A Hulme J determined that the whole of the proceedings should be referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW) pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act. It is convenient to set out the short reasons given by R A Hulme J for the referral:

“[7]   There is no need to review in any detail the evidence in the trial or the manner in which the Crown and defence cases were put. It is sufficient to say that a significant aspect of the Crown case was the contention that the applicant made admissions at a police station following his arrest. The admissions were said to have been made to a support person, A107, who was present because the applicant was a vulnerable person because of his age (he was 15). The Crown relied upon other aspects arising from the evidence but its case was put to the jury on the basis that a verdict of guilty could be returned on the evidence of the alleged admission alone.

[8]   The Attorney General concedes there should be a referral. The written submissions succinctly set out three broad issues revealed by the material:

[Quotation from Attorney General’s written submissions redacted].

4. In JB v R (No 2) [2016] NSWCCA 67, JB’s conviction for murder was quashed and by majority a verdict of acquittal was entered.

5. To protect the identity of the person referred to in the reasons of R A Hulme J as A107, the following suppression order was made:

“6 Except for the proper purposes of these proceedings, there shall be suppressed, and there shall be no publication of, anything said in these proceedings (in evidence or otherwise) or of anything contained in any document that was created or obtained for the purposes of these proceedings or the antecedent proceedings pursuant to s 78 of the Crimes (Appeal and Review) Act 2001, that refers to … having assisted police (by providing information to them or otherwise) in respect of matters other than the investigation that led to these proceedings.”

6. The order was first made on 24 March 2015 and confirmed on 16 September 2015. Further, although the order does not expressly state this, it was common ground that it was made pursuant to the provisions of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act).

7. On 23 September 2016, the Director of Public Prosecutions referred Terrance William Thorpe, the Crown Prosecutor at the original trial, to the Legal Services Commissioner of NSW, requesting that the Commissioner consider the question of whether Mr Thorpe’s conduct in the matter amounted to professional misconduct or unsatisfactory professional conduct. On 29 November 2016, the Commissioner initiated a complaint in accordance with s 266(2) of the Legal Profession Uniform Law (NSW) (Uniform Law). On 16 January 2017, the Commissioner referred the complaint to the Council of the NSW Bar Association (the Bar Council) for investigation and determination in accordance with the Uniform Law. On 21 September 2017 the Bar Council resolved that certain allegations in the complaint be referred to the NSW Civil and Administrative Tribunal (NCAT) pursuant to s 300 of the Uniform Law.

8. It is unnecessary to set out the particulars of the complaint in any detail, but it is alleged that A107 was a police informant during the investigation, and at the time of the prosecution in the proceedings. It was alleged that a significant aspect of the Crown case was the contention that JB made admissions at a police station on 26 April 2008, following his arrest. The admissions were said to have been made to A107 as a support person who was present because JB was a vulnerable person due to his age. The complaint alleged that prior to the trial, each of Mr Thorpe and JB’s solicitor, a Mr Kaufmann, were aware that A107 at the time he acted as a support person, was also a police informer and resolved not to disclose this fact to the defence counsel at, or prior, to the trial of JB or on appeal. In relation to Mr Kaufmann, it was also alleged that at the time he was acting for JB he was also acting for A107 in connection with fraud proceedings in which an affidavit of assistance was obtained for A107’s sentencing proceedings referring to the assistance A107 gave in conveying the admission said to be made to him by JB to the police.

9. Mr Thorpe’s legal advisers complained that the use of certain material by the Bar Council to support its case contravened the suppression order and also the effect of the suppression order was to deny Mr Thorpe procedural fairness as he could not use the material for his case.

10. As a result, the Bar Council filed a notice of motion seeking the following orders:

“1 An order under s13(3) of the Court Suppression and Non-publication Orders Act (‘the Act’) as follows:

7.   Order 6 is varied for the proper purpose of disciplinary proceedings under the Legal Profession Uniform (NSW) and before the NSW Civil and Administrative Tribunal and does not preclude a reference to A107 having provided assistance to police (by providing information to them or otherwise) but does prohibit the publication of the specific matters detailed at items 1, 3, 4, 6, 7 and 8 of the affidavit of Chief Inspector Olsen dated 28 September 2008 or of the nature or number of matters regarding which A107 assisted police in addition to the matter of JB.

8.   To avoid any doubt except for the proper purpose of disciplinary proceedings under the Legal Profession Uniform (NSW) and before the NSW Civil and Administrative Tribunal the identity of A107 is not to be published.

2   Such other orders as the Court deems fit.”

11. The notice of motion was served on Mr Thorpe and the Law Society of NSW as being persons affected by the order. The Law Society has resolved to institute and prosecute disciplinary proceedings against Mr Kaufman in NCAT. Mr Thorpe and the Law Society were subsequently joined as first and third respondents to the motion, whilst the Commissioner of Police who had an interest in protecting the identity of A107, was joined as second respondent.

12. Each of the parties filed written submissions. In addition to filing written submissions, the Commissioner of Police prepared draft short minutes of order indicating a variation to the suppression order to which he would be prepared to consent. That variation was in the following terms:

“1.   Order 6 made on 24 March 2015 in these proceedings is amended by adding at the end the following words:

‘save that for the proper purposes of any disciplinary processes or proceedings under the Legal Profession Uniform Law (NSW) (and without limiting the generality of the foregoing prohibition on publication) it shall be permissible to disclose:

(a)   the fact that the said person provided assistance to police in respect of the proceedings against JB and the investigation that led to those proceedings; and

(b)   the fact that the said person provided assistance to police in respect of other matters (but not the number of other matters, nor any information about those matters or their nature).’”

13. Each of the Bar Council and the Law Society supported the making of an order in those terms. However, it was opposed by Mr Thorpe.

14. Prior to dealing with Mr Thorpe’s submissions, it is convenient to set out the relevant provisions of the Suppression Act.

15. Section 7 confers upon the Court the power to make suppression orders. It is in the following terms:

“7   Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:

(a)   information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b)   information that comprises evidence, or information about evidence, given in proceedings before the court.”

16. The grounds for making such an order are set out in s 8, whilst the procedure for making an order is set out in s 9. These sections provide as follows:

“8   Grounds for making an order

(1)   A court may make a suppression order or non-publication order on one or more of the following grounds:

(a)   the order is necessary to prevent prejudice to the proper administration of justice,

(b)   the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c)   the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900),

(e)   it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2)   A suppression order or non-publication order must specify the ground or grounds on which the order is made.

(3)   Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

9   Procedure for making an order

(1)   A court may make a suppression order or non-publication order on its own initiative or on the application of:

(a)   a party to the proceedings concerned, or

(b)   any other person considered by the court to have a sufficient interest in the making of the order.

(2)   Each of the following persons is entitled to appear and be heard by the court on an application for a suppression order or non-publication order:

(a)   the applicant for the order,

(b)   a party to the proceedings concerned,

(c)   the Government (or an agency of the Government) of the Commonwealth or of a State or Territory,

(d)   a news media organisation,

(e)   any other person who, in the court’s opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made.

(3)   A suppression order or non-publication order may be made at any time during proceedings or after proceedings have concluded.

(4)   A suppression order or non-publication order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order.

(5)   A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which the order is made.”

17. Sections 13 and 14 deal with reviews of orders and appeals against orders respectively. They are in the following terms:

“13   Review of orders

(1)   The court that made a suppression order or non-publication order may review the order on the court’s own initiative or on the application of a person who is entitled to apply for the review.

(2)   Each of the following persons is entitled to apply for and to appear and be heard by the court on the review of an order under this section:

(a)   the applicant for the order,

(b)   a party to the proceedings in connection with which the order was made,

(c)   the Government (or an agency of the Government) of the Commonwealth or of a State or Territory,

(d)   a news media organisation,

(e)   any other person who, in the court’s opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should have been made or should continue to operate.

(3)   On a review, the court may confirm, vary or revoke the order and may in addition make any other order that the court may make under this Act.

14   Appeals

(1)   With leave of the appellate court, an appeal lies against:

(a)   a decision of a court (the original court) to make or not to make a suppression order or non-publication order, or

(b)   a decision by the original court on the review of, or a decision by the original court not to review, a suppression order or non-publication order made by the court.

(2)   The appellate court for an appeal under this section is the court to which appeals lie against final judgments or orders of the original court or, if there is no such court, the Supreme Court.

(3)   Each of the following persons is entitled to appear and be heard on an appeal under this section:

(a)   the applicant for the suppression order or non-publication order,

(b)   a party to the proceedings in which the order or decision subject to appeal was made,

(c)   the Government (or an agency of the Government) of the Commonwealth or of a State or Territory,

(d)   a news media organisation,

(e)   any other person who, in the appellate court’s opinion, has a sufficient interest in the decision that is the subject of appeal.

(4)   On an appeal under this section, the appellate court may confirm, vary or revoke the order or decision subject to the appeal and may make any order or decision under this Act that could have been made in the first instance.

(5)   An appeal under this section is to be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(6)   If judgments or orders of the original court are subject to review by another court (rather than appeal to another court), this section provides for a review of the original court’s decisions instead of an appeal and in such a case references in this section to an appeal are to be read as references to a review.”

Mr Thorpe’s submissions

18. Mr Thorpe opposed the making of the orders on two grounds. First, the Bar Council had no standing to seek a review of the orders and second, the orders proposed would have the effect of depriving him of procedural fairness in the disciplinary proceedings.

19. The submissions made by Mr Thorpe asserting that a denial of procedural fairness would arise from the making of the orders are obscure. In his written submissions, he referred to his general law application seeking orders that the application made by the Bar Council to NCAT be dismissed as incompetent under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). He also referred to paragraph 35 of the affidavit of Amber Leigh Sharp filed in the present proceedings, which in turn referred to a letter written by Mr Thorpe’s solicitor to the Bar Council, stating that the Bar Council will be in contempt if it continues to prosecute the proceedings in NCAT in reliance of material obtained in breach of the Court’s order. It was as a result of this assertion that the Bar Council brought the notice of motion, the subject of these proceedings.

20. Mr Thorpe in his written submissions at paragraph 27 also referred to certain subparagraphs of his amended reply to the NCAT proceedings which he stated, “directly refer to and rely on the information and material which would nonetheless be the subject of suppression and non-publication despite the requested variation to the Order as propounded by the Council”. The submission did not condescend to identify the documents in question.

21. However, the amended reply itself makes reference to the affidavit of assistance provided in connection with the sentencing of A107. In addition, senior counsel for Mr Thorpe identified what he described as the affidavit of “the officer in charge of the investigation”. Presumably he was referring to the affidavit of Detective Sergeant M, who was the officer in charge of the investigation into the murder of Mr Spowart. It should be noted that significant portions of each of these affidavits were reproduced in the decision of this Court in at [10] [12] and as counsel for the Commissioner of Police conceded, were in the public domain. Senior counsel for Mr Thorpe did not seek to demonstrate what further material was required.

22. In these circumstances, I am not satisfied that any denial of procedural fairness to Mr Thorpe would result from the variation of the orders. However, if at any stage during the course of the disciplinary hearing Mr Thorpe or those advising him remain of the view that his case cannot be properly presented without use of the documents which remain the subject of the suppression order, it would be open to him to seek either a further variation of the order or a stay of the disciplinary proceedings.

23. In addition, the written submissions at paragraph 28 state “[i]t is axiomatic that Mr Thorpe’s right to a fair hearing is infringed in circumstances where he is precluded from challenging the legality of the Council’s opinion under s 300 of LPUL [Uniform Law] by way of review, whether as a matter of competency in the Tribunal or by way of judicial review to the court”.

24. This cryptic submission was not elaborated on at the hearing. As best as it can be ascertained, the proposition is that, because the Council would no longer be in contempt using the material, the objection foreshadowed by Mr Thorpe cannot now be taken. This does not mean that there is any denial of procedural fairness. Mr Thorpe has had an opportunity to be heard on whether the variation should be made. Making the order does not deny him procedural fairness.

25. The second matter relied on by Mr Thorpe was the proposition that the Bar Council had no standing to seek a review. Senior counsel for Mr Thorpe in advancing this proposal stated that the only persons who could seek a review under s 13(2)(e) were persons who had an interest in the making of the order at the time it was made. He submitted that that proposition was supported by the fact that the provisions dealing with review did not contain a provision similar to s 14(5) dealing with fresh evidence on appeal.

26. He also submitted that his contention was supported by the fact that the persons named in s 13(2)(e) as being entitled to be heard on a review, are described in the same terms as those named in s 9(2)(e) as being entitled to appear on the original application.

27. In my opinion, there is no merit in this proposition. It is unnecessary to deal with the principles of statutory construction in any detail, save to say the starting point must be the text of the provisions read in the context of the statute as a whole: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [4], [47]; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23]-[24], [88]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 at [103].

28. In the present case the structure of the legislation is clear. Section 13 provides for the review of a suppression order by the same court which made the order, while s 14 in its terms, deals with appeals from that court to the appellate court with leave.

29. There is good reason for this. The need for a suppression order or the need for it to contain particular restrictions or exceptions, may vary over time. The present case provides a good example. Once that is understood, it is clear in my opinion that the persons referred to in s 13(2)(e) are persons who have an interest in the maintenance or continuation of the suppression order at the time the application for review is made. In the present case, this would include the Bar Council and the Law Society in the performance of their statutory functions under the Uniform Law.

30. Further, s 13(2)(e) refers to persons who have a “sufficient interest in the question of whether the suppression order or non-publication order should have been made or should continue to operate” (emphasis added). Unsurprisingly, the words “should continue to operate” do not appear in s 9(2)(e).

31. The fact that there is no express provision for further evidence does not support the construction contended for by Mr Thorpe. Section 13 does not prohibit the giving of evidence on a review and it is implicit in the review process that evidence could be led, if only to show why the review is necessary.

32. For these reasons the Bar Council had standing to bring the application for review. The orders agreed to by the parties should be made to facilitate the performance by the Bar Council and Law Society of their functions in prosecuting a matter which if made out, involves serious breaches of the professional and ethical obligations of the barrister and solicitor concerned.

33. I would make the following orders:

1. Order 6 made on 24 March 2015 in these proceedings is amended by adding at the end the following words:

2. “save that for the proper purposes of any disciplinary processes or proceedings under the Legal Profession Uniform Law (NSW) (and without limiting the generality of the foregoing prohibition on publication) it shall be permissible to disclose:

1. the fact that the said person provided assistance to police in respect of the proceedings against JB and the investigation that led to those proceedings; and

2. the fact that the said person provided assistance to police in respect of other matters (but not the number of other matters, nor any information about those matters or their nature).”

34. HOEBEN CJ at CL: I agree with the Chief Justice and the order which he proposes.

35. SIMPSON AJA: I agree with the orders proposed by the Chief Justice, for the reasons his Honour gives.

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Amendments

25 March 2019 - Coversheet: Amend Counsel representation for applicant and first respondent

Decision last updated: 25 March 2019