Jones (a pseudonym) v The Queen - [2021] NSWCCA 225

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jones (a pseudonym) v R [2021] NSWCCA 225
Hearing dates: 16 August 2021
Date of orders: 22 September 2021
Decision date: 22 September 2021
Before: McCallum JA and Hamill J at [1]
Cavanagh J at [2]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentence imposed in the District Court is quashed.
(4) The matter is remitted to the District Court for re-sentence pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW).

Catchwords:
CRIME – Appeals – Appeal against sentence – Denial of procedural fairness – Confidential information detailing applicant’s assistance to the authorities provided to the Court by the Crown but not to the applicant’s legal representatives – Application of HT v The Queen – Appeal allowed

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
HT v The Queen (2019) 93 ALJR 1307; [2019] HCA 40
R v Birks (1990) 19 NSWLR 677; (1990) 48 A Crim R 385
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Category: Principal judgment
Parties: Bill Jones (a pseudonym) (Applicant)
Regina (Respondent)
Commissioner of New South Wales Police Force (Interested Party)
Commissioner of South Australian Police Force (Interested Party)
Representation:
Counsel:
G Lewer with D Mulligan (Applicant)
E Balodis (Respondent)
Solicitors:
Legal Aid (NSW) (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
NSW Crown Solicitor’s Office (Interested Parties)

File Number(s): 2018/196406
Publication restriction: In addition to the use of a pseudonym, there are non-publication and suppression orders in place which are annexed to this judgment.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16/05/19

Before:

Lakatos SC DCJ

File Number(s):

2018/196406

Judgment

McCALLUM JA and HAMILL J: We agree with Cavanagh J.
CAVANAGH J: The applicant seeks leave to appeal from a sentence imposed upon him in the District Court by his Honour Judge Lakatos SC on 16 May 2019. The applicant was sentenced following pleas of guilty in respect of:

one count of supply a prohibited drug (methylamphetamine) not less than the large commercial quantity (19.682 kg), contrary to ss 25(2) and 33 of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”) (“the supply offence”); and

one count of supply a prohibited drug (ephedrine) in an indictable quantity (201.6 grams) contrary to s 25(1) of the DMT Act which was placed on a Form 1 (“the Form 1 Offence”).

For the reasons which are set out in this judgment, the applicant seeks that the appeal be allowed, the sentence be set aside and that the matter be remitted to the District Court for re-sentence pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW).
The applicant pursues only one ground of appeal being:

The applicant was denied procedural fairness by not having the opportunity to view the material that was provided to the Court describing the nature and extent of the applicant’s assistance to the authorities.

Background

The parties prepared an agreed statement of facts for the purposes of sentencing. There is no dispute as to the facts.
On 22 June 2018 the applicant agreed with his ex-wife to take his eight year-old son for the weekend. He informed her that he intended to drive to Sydney to visit a cousin for the weekend. He picked up his son from after-school care on that day.
Three days later, being on 25 June 2018, he was driving his motor vehicle in rural New South Wales when a Police Officer conducting general duties stopped him for a mobile random breath test. The Police Officer observed him to be shaking and became suspicious.
As a result of a search of the vehicle, the Officer located a green reusable shopping bag which contained a white crystalline substance later determined to be 7.947 kilograms of methylamphetamine. After cautioning the applicant and placing him under arrest the Police Officer continued his search and found a further 5.962 kilograms of methylamphetamine. The applicant was taken to the Balranald Police Station and voluntarily participated in an interview.
During the interview he admitted that there was one more bag containing drugs still in the vehicle. The Police conducted a further search of the vehicle and found a further white crystalline substance later determined to be 5.951 kilograms of methylamphetamine as well as a further bag containing 102.4 grams of phenethylamine which is neither a prohibited nor a restricted substance. The total weight of methylamphetamine found was 19.862 kilograms. I note that the figure as contained in the agreed facts is different from that on the Court Attendance Notice which is 19.682 kilograms. This does not impact on the outcome of this appeal. The Police also located two bags containing 201.6 grams of the prohibited drug ephedrine.
The methylamphetamine located by the Police grounds the supply offence. The ephedrine grounds the Form 1 offence.
The applicant made a number of admissions to the Police regarding the drugs. However, he denied that he was a user of methylamphetamine. He admitted he had a “mental problem” and he could not work with other people.
The sentencing judge found that the offending was at least or slightly above the mid-range of objective seriousness.
The sentencing judge noted that the applicant had no criminal history in New South Wales and only a modest history in South Australia essentially involving summary offences. The sentencing judge accepted that the applicant was remorseful.
His Honour also noted the applicant’s history in the sense that he arrived in Australia in 2000 as a refugee. He had a history of anxiety and depression for which he had sought psychological help. His Honour expressed optimism as to the prospects of rehabilitation.
Whilst the sentencing judge generally accepted the applicant’s subjective case, his Honour did not accept that the applicant was being totally frank as to the circumstances of the offending. There were discrepancies in his evidence and inconsistencies with other material.
His Honour accepted that the applicant entered a plea of guilty at the earliest opportunity and that he was entitled to the maximum 25% discount on account of the utilitarian value of the plea.
Unsurprisingly given its nature, his Honour endeavoured to deal with the material relating to the applicant’s assistance to the authorities in an oblique way. His Honour stated:

“There has been material placed before the Court relevant to s 23 [Crimes (Sentencing Procedure) Act 1999 (NSW)]. [Section 23] requires me to have regard to a number of matters which I propose to do in an obtuse way in order to forestall any risk that might [be] occasioned by discussion of these issues. Section 23 requires the Court to make a number of judgments about the activity. Firstly, its significance and usefulness. In my mind having read the material it has been very significant and very useful. The material supplied appears to be truthful, complete and reliable and the extent of the benefits of what has been proffered are very, very high, given the material with which the Court has been supplied. It is timely. He has received, as I understand it, no other benefits from what is disclosed in that document. In terms of his custodial conditions, certainly if material of this kind is known there is a risk of harsher custodial conditions, but given the fact that it appears that the assistance has been now completed and may not see the light of day, it appears to me that the custodial conditions may not be occasioned to him. I am sorry to be so vague but this is a public court and I propose to keep it that vague in any event.”

His Honour ultimately applied a total discount of 35% which must be taken as comprising 25% for the early plea and 10% for assistance to the authorities. His Honour noted that the extra percentage discount is to be explained on the basis of past assistance, there being no undertaking that the applicant would provide future assistance.
His Honour imposed a total sentence of 9 years and 3 months with a non-parole period of 6 years and 9 months commencing on 25 June 2018. The applicant will be eligible for parole on 24 March 2025. His Honour noted that without the 35% discount he would have imposed a sentence of 14 years and 3 months with a non-parole period of 10 years and 5 months.
Other than maintaining that because of a lack of procedural fairness the sentence should be set aside, the applicant does not challenge any of these findings. However, it is implicit in the ground of appeal that, had procedural fairness been afforded, the sentencing judge might have been persuaded to allow a discount greater than 10% for assistance.

The sentencing process

The proceedings on sentence were heard over 6 days in 2019 being 21, 26 and 28 February, 4 and 8 March and 16 May. All but the first and last of those dates were procedural in nature.
The sentencing proceedings commenced in the Broken Hill District Court and were concluded in the Sydney District Court. On all occasions the applicant appeared for sentence before the sentencing judge (Lakatos SC DCJ).
The applicant was initially represented by a solicitor who appeared on 21 and 26 February but then did not appear on 28 February. There was then no appearance for the applicant when the matter was called on 8 March. At the sentencing hearing on 16 May 2019 he was represented by Mr Williamson of Counsel.
On 21 February 2019 the Crown tendered the sentencing material, all of which was made available to the applicant.
Then on 16 May 2019, the Crown provided the Court with further material described as “relating to a s 23 issue”. It is agreed that this material (“the assistance material”) purported to detail the assistance provided by the applicant to the authorities. It is relevant as a mitigating factor pursuant to ss 21A(3)(m) and 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The applicant also tendered a bundle of material which included a psychological report, an Australian Citizenship Certificate, sentencing statistics and comparative cases. The applicant provided written submissions. The applicant also gave oral evidence.
Whilst the Crown made brief written and oral submissions, no submissions were made about the assistance material, seemingly leaving it to the sentencing judge to review the material and form his own view as to the extent to which there should be any discount, if any, on account of the assistance given to the authorities.
There was an exchange between the Crown, Mr Williamson and the sentencing judge as follows:

“DIGGINS: Your Honour, I understand that my learned friend wants to ask some further questions in chief. I will not have an issue with that, but before that happens, your Honour, I’d ask that the Court be closed so I can present something. My friend has not seen the document, but it’s in line of a s 23 issue that’s arisen.
HIS HONOUR: Is it simply – Ms Crown, I understand the issue. Handing up material, or do you want to talk to it as well? Because if it’s handing up the material then I know what it is, and I’ll read it, and of course the material won’t be divulged, but if it needs to be spoken about and that can’t be done in public, I’m prepared to close the Court. So you tell me.
DIGGINS: Your Honour, I don’t wish to speak to it unless your Honour has any questions. Given the nature, I can’t really go into details, but if your Honour has questions perhaps we could close the Court later, not to interrupt. I just wanted that known before –
HIS HONOUR: Thank you. Well, perhaps, Ms Crown, in terms of orderly procedure, even though [the applicant] is part of the way through giving evidence, if Mr Williamson doesn’t have an issue I’ll receive the material which has been adverted to. I won’t read it straightaway, but I’ll read it in due course.
WILLIAMSON: Yes. Thank you, your Honour.
HIS HONOUR: Then we can continue the evidence to the extent that it’s necessary, and then go from there.
WILLIAMSON: It will be very brief, your Honour.
HIS HONOUR: Can I ask one question, Ms Crown? If it’s an issue, we can close the Court. Does the substance of material you hand up to me relate to the present offence, or something else?
DIGGINS: Something else. Thank you.
HIS HONOUR: I think the material is self-explanatory, Mr Williamson. I’m happy in due course if you want to elaborate on what should happen as a consequence of this in closed Court. But I think perhaps we should finish the evidence in the matter, and then deal with this issue, and then go from there.
WILLIAMSON: Sure, your Honour. Just for the record, I haven’t read that.
HIS HONOUR: You have not?
WILLIAMSON: No.
HIS HONOUR: Do you wish to do so?
WILLIAMSON: Yes, please. Yes.
HIS HONOUR: Can I ask you does your client consent to [you] reading it? If he does I’m happy to hand it to you. If he doesn’t, I’m not quite sure where we stand.
WILLIAMSON: Yes. I’m not sure. Yes, he is happy for me to see it.
DIGGINS: I apologise. I’m instructed by the South Australian person who produced that, that if this – if counsel wishes to see it, then South Australia will have to be consulted. I have someone from New South Wales who can make that call. I know it’s unusual, but given the nature, those are my instructions.
HIS HONOUR: Mr Williamson, I won’t dissuade you from wanting to see this after the proper procedure is gone through. But what I can say is that it strongly favours your client.
WILLIAMSON: Your Honour, I’m thinking that – as your Honour was about to say that, if it’s assisting, your Honour, I don’t necessarily need to see that. I can just make that submission if it –
HIS HONOUR: Look, I think there’s nothing in there that I can discern at the moment which has any possible negative ramifications. It goes the other way, if anything.
WILLIAMSON: Yes.”

It is clear from the transcript that the Crown provided material to the sentencing judge which is said to be relevant to assistance given to the authorities.
The sentencing judge received it and must have read it, although it was not formally marked as an exhibit. The prosecution did not speak to it.
His Honour indicated to Mr Williamson that the material was self-explanatory, noting that he was happy in due course to elaborate on what should happen at a later time in a closed Court. His Honour asked whether the applicant consented to his Honour reading the material. His Honour then asked Mr Williamson whether his client consented to Mr Williamson reading it, stating that if he did he would hand it down to him. Mr Williamson responded that his client was happy for him to see it.
At that time, the Crown intervened stating that if Mr Williamson wished to see the material then the South Australian “person” would have to be consulted about this. Plainly, the Crown was indicating an objection to Mr Williamson seeing it at that time, at least until she obtained further instructions as to whether the person in South Australia consented to that course.
As is evident from the transcript, his Honour then informed Mr Williamson that the material was strongly in favour of the applicant although he did not want to dissuade him from seeing it “after the proper procedure is gone through”. At this time, Mr Williamson assented to the sentencing proceedings continuing without him seeing the material stating that he didn’t necessarily need to see the material and that he could just make submissions concerning it.

The applicant’s submissions

Subsequent to the sentencing proceedings and the sentencing of the applicant, the High Court handed down its decision in HT v The Queen.^[1] The decision in HT is in respect of the treatment of evidence relating to assistance given to authorities on a sentencing hearing. It is directly on point and it is no doubt the reason for this appeal.
1. (2019) 93 ALJR 1307; [2019] HCA 40.
The applicant submits that the core issue in HT was whether the appellant (in that matter) had been denied procedural fairness by virtue of having been refused access to an exhibit relating to her assistance to the authorities. There were other ancillary issues such as whether public interest immunity could be invoked to justify the refusal of access.
The applicant submits that, having regard to HT, the process undertaken during the sentencing proceedings amounted to a denial of procedural fairness. The applicant submits that he was entitled to view and make submissions about the assistance material and that the way in which it was dealt with during the sentencing proceedings demonstrated a denial of procedural fairness. This is even though, on one view, his Counsel was invited to indicate whether he wished to see the material prior to proceeding further with the sentencing hearing.

The Crown submissions

The Crown disputes that the applicant was denied procedural fairness in the particular circumstances of this case. Whilst acknowledging the approach and principles set out in HT, the Crown distinguishes this case on the basis that the applicant was given a choice as to whether he, through his Counsel, wished to see the material. It is suggested that the applicant, through his Counsel, elected not to see the material, albeit that was following indications from the sentencing judge that it was favourable to the applicant.
The Crown submits that having elected not to see the material it could not be said that the applicant was denied procedural fairness. The applicant is bound by his Counsel’s decision. Further, Counsel’s decision not to view the material is said not to have been incompetent in the sense of a flagrant breach of the requisite standard of representation as discussed in R v Birks.^[2] In any event, the applicant does not rely on the ground relating to the competence of Counsel.
2. (1990) 19 NSWLR 677; (1990) 48 A Crim R 385.
Further, the Crown submits that, if this Court finds error, it would undertake a separate independent exercise of the sentencing discretion and conclude that no lesser sentence is warranted in law. Alternatively, it should proceed to re-sentence but the matter should not be remitted to the District Court.

Consideration

This Court received the material provided to the sentencing judge, again, on a confidential basis. Orders have been made under the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of the material.
It is not necessary to refer to the material in this judgment as the outcome of the applicant’s appeal does not depend upon the content of the material. The applicant says that he had not seen the material during the sentencing process, although Counsel for the applicant on this appeal has seen the material. The Crown made no submissions on sentence about the content of the material and makes no submissions in this Court about its precise content.
At least on one view, as is submitted by the applicant, it is not surprising that the confidential material was dealt with on sentence in the way it was, as Mr Williamson may have had some uncertainty as to whether he would ever obtain access to the documents and the issue arose on the final day of a protracted sentencing process.
In HT the offender pleaded guilty in the District Court to 11 counts of obtaining money or financial advantage by deception. During the sentencing proceeding documents identified as “Exhibit C” were provided to the sentencing judge evidencing the offender’s role as a police informer and the extent of her co-operation with the authorities.
These documents were not provided to defence Counsel. Defence Counsel was informed that if he wished to see the material then the Crown would only provide heavily redacted documents to the sentencing judge. On sentence, the offender received a discount of 20% on account of assistance to the authorities.

Pursuant to s 5D of the Criminal Appeal Act the Crown appealed against sentence on the grounds of manifest inadequacy. In this Court, the Commissioner of Police and the Crown opposed the offender or her representatives having access to the Exhibit C material on public interest immunity grounds. This Court upheld that opposition. The appeal was allowed and the aggregate sentence was increased.
The offender appealed to the High Court on the basis that she had been denied procedural fairness.
The High Court, (Kiefel CJ, Bell and Keane JJ at [1]-[54], Nettle and Edelman JJ at [55]-[61] and Gordon J at [62]-[91]) held that the doctrine of public interest immunity had no application in the circumstances of the case. As Nettle and Edelman JJ said at [55]:

“The Court of Criminal appeal’s invocation of that doctrine as a basis for keeping secret from a prisoner information supplied to a sentencing judge for the purpose of imposing sentence is misconceived”.

It is not necessary to further consider that point in this matter as the applicant was not precluded from seeing the confidential material on the basis of public interest immunity. The question in this matter is whether the applicant was denied procedural fairness.
In HT, Gordon J summarised the relevant principles at [64] as follows:

“Procedural fairness lies at the heart of the judicial function. It requires a court, making an order that finally alters or determines a right or legally protected interest, to afford to the parties a fair opportunity to test and respond to evidence upon which the order might be made. In other words, a court must provide each party before it an opportunity to be heard, and to tender evidence and advance arguments relating to its own case and to answer the case put against it. The justifications for the requirements of procedural fairness are numerous and of such force that exceptions are narrow.” (Citations omitted)

As Nettle and Edelman JJ said at [57]–[58]:

“First, it is fundamental to the Anglo-Australian criminal justice system that no-one is to be sentenced for a criminal offence without first being apprised of the basis on which he or she stands to be sentenced and being afforded the opportunity to be heard on it. It is, therefore, self-evidently unacceptable for a sentencing judge to be provided with information pertinent to sentence that the prisoner may not see or upon which the prisoner may not give effective instructions to his or her counsel.
Secondly, and consequently, in our view, it is not open in a criminal sentencing proceeding in which evidence of assistance is provided to the sentencing judge to order that the prisoner be denied access to all or some of that evidence. Such orders cannot be justified in the same way as orders restricting parties’ access to trade secrets and other confidential information in civil proceedings, or restricting the access of parties to information tendered by a guardian in wardship proceedings, where disclosure would undermine the core purpose of the proceedings such as protecting information from trade rivals or ensuring the best interests of the child.”

Again, as emphasised by the Court (per Kiefel CJ, Bell and Keane JJ at [17]–[18]) procedural fairness requires that a person against whom a charge is made is given a reasonable opportunity to be heard. As a general rule, that means that opposing parties must know what case the opposite party seeks to make and how that party seeks to make it. As their Honours said at [17]:

“A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which the order is sought to be made.”

Having said that, the content of procedural fairness may vary according to the circumstances of the particular case. The concern of the law is to avoid practical injustice.^[3]
3. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ).
Like in this case, the material provided to the sentencing judge in HT was favourable to the offender. In HT the Crown submitted that the appellant did not need access to the material because she knew what assistance she had provided and could give instructions as to those facts. However, the Court (per Kiefel CJ, Bell and Keane JJ at [25]) considered that the fact that the information was not adverse to the appellant was not to the point. The appellant’s Counsel was given no real choice to view the information. The appellant had no way of knowing whether the court was aware of all of the assistance that had been provided and the risk that had been taken in providing it. The appellant’s Counsel had no way of checking any instructions he had been given as against the material.
The Court thus rejected the proposition that there had not been a denial of procedural fairness because the material was favourable to the appellant and Counsel had elected to proceed with the sentencing process without the material. Plainly, there is a degree of similarity between the facts and circumstances in HT and this matter.
The application of those facts and circumstances to the principles emphasised by the High Court would tend towards the same result, that is, a denial of procedural fairness.
However, the Crown emphasises that the doctrine of procedural fairness is not inflexible. Its application depends upon the circumstances existing at the time in the particular case.
The Crown submits that, unlike in HT, Mr Williamson was provided with a choice as to whether he wished to see the material. The sentencing judge was willing to allow Mr Williamson an opportunity to see the material but, on being informed that it was favourable, he indicated that it was not necessary that he see it.
In the end, the outcome of this appeal must depend upon whether, despite what was said in HT, the applicant was not denied procedural fairness in the particular circumstances of this matter.
As agreed during oral submissions, the answer to that question depends on whether it might be said that, unlike the offender in HT, the applicant was given a choice as to whether he wished to see the confidential material and elected not to see it.
On the Crown case, having been given that choice, he cannot now complain of a lack of procedural fairness.
The other point raised by the Crown is that on the Crown case, the applicant had previously told South Australian Police that he did not want his legal representatives to see the content of the confidential information. He says that he was not provided with it. This is said to support the submission that the applicant was provided with a choice (both before and during the sentencing hearing) and elected not to seek access to the confidential information.
Whatever the earlier discussions between the Police and the applicant, which apparently took place without the benefit of the applicant having legal assistance at the time, it is plain from the exchange during the sentencing hearing to which I have already referred, that, by the time that the assistance material was raised during the sentencing proceedings, the applicant had instructed his legal representatives that he wished Mr Williamson to have access to the documents. This must be so because Mr Williamson specifically said so.
This is not a case in which the applicant’s Counsel was offered the material during the sentencing proceedings but declined to view it. As the transcript reveals, the sentencing judge was in the process of offering it to Mr Williamson (who immediately responded that the applicant was happy for him to see it), when the Crown interrupted in accordance with her instructions suggesting that someone in South Australia would need to be consulted about this.
At the very least this must have suggested to Mr Williamson that he would not have been able to obtain access to the assistance material at that time, that there may be a risk of an adjournment (this was the 6th day on which the matter had been listed for sentencing) and that what his Honour was suggesting was in effect indicating that it was very favourable to his client. That is, from Counsel’s perspective, the judge who would be sentencing had already reviewed it and thought it was very favourable. It is perhaps unsurprising in those circumstances that Mr Williamson indicated that it was not necessary that he see it.
In my view, Mr Williamson was not faced with a real choice based on a full understanding of the material. As the Court said in HT a party can only be in a position to put his case if he is able to test and respond to the evidence on which an order is sought to be made.
The reason that the applicant was in the position that he could not make submissions as to the content of the confidential material and not determine whether it was of such significance that it would warrant a substantial discount in penalty is because he was not provided with the material either prior to or during the sentencing hearing. He was thus denied procedural fairness.
In my view, the very strong statements by the Court in HT are not overcome by pointing to the conduct of Mr Williamson and suggesting that he could have done more. I acknowledge that the Crown did not make such a specific submission but the effect of the Crown’s argument is that Mr Williamson should have insisted that he be given access to the material, despite the position taken by the Crown and the indication from the sentencing judge that the material was favourable.
Of course, whether or not the applicant was denied procedural fairness is not to be determined with reference to the outcome but, on one view, the sentencing judge could not have considered it very favourably because the discount for assistance to the authorities was somewhat on the lower end of what might be considered the general range. In the circumstances which existed the sentencing judge received no submission from either party about the significance of the assistance material.
In all the circumstances I am satisfied that the ground of appeal is established.
Whilst the Crown initially adopted the position that the matter should not be remitted to the District Court, the applicant pointed out that without seeing the material he would not know whether he might need to obtain some additional evidence and of course would need an opportunity to present submissions on the significance of the material.
Further, consistent with what was said in HT, the applicant should be afforded an opportunity to properly consider the material, adduce any further evidence and make all appropriate submissions before a sentencing judge. There is merit in that proposition and this was ultimately accepted by the Crown.
In the circumstances, the matter must be remitted to the District Court for sentencing.
The orders I propose are:

Leave to appeal is granted.

The appeal is allowed.

The sentence imposed in the District Court is quashed.

The matter is remitted to the District Court for re-sentence pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW).

**********

ANNEXURE:

NON-PUBLICATION AND SUPPRESSION ORDERS

THE COURT MAKES THE FOLLOWING ORDERS IN ACCORDANCE WITH THE SHORT MINUTES OF ORDER PROVIDED BY THE COMMISSIONER OF POLICE OF SOUTH AUSTRALIA:

(1) The proposed Crown witnesses from South Australia Police (“the Witnesses”) who have provided affidavits in these proceedings be permitted to appear and give evidence before the Court during the course of the hearing under the name “Mark” and “Luke” respectively.

(2) The true identity of the Witnesses be suppressed, together with any evidence, submission, discussion, document or information that might facilitate disclosure of the true identity of the Witnesses.

(3) There is to be no publication of any visual or other description or depiction of the physical appearance or other identifying feature of the Witnesses and the contents of confidential exhibit 2.

(4) Order 2 is made pursuant to ss. 8(1)(a), (c) (d) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), being that:

a. the order is necessary to prevent prejudice to the proper administration of justice;
b. the order is necessary to protect the safety of any person;
c. 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.

(5) Order 2 operates throughout the Commonwealth of Australia pursuant to s. 11 of the Court Suppression and Non-publication Orders Act 2010 (NSW).

(6) Order 2 operates for a period of 50 years or until further order of the Court.

THE COURT MAKES THE FOLLOWING ORDERS IN ACCORDANCE WITH THE SHORT MINUTES OF ORDER PROVIDED BY THE APPLICANT:

Pursuant to ss 7 and 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW):

(7) There be no further publication of the name of the applicant in relation to his current proceedings before the Court of Criminal Appeal, or details sufficient to identify the applicant.

(8) Listings in connection with this matter use a pseudonym assigned by the Court, or such other anonymous initials as the Court thinks fit, in relation to his current proceedings before the Court of Criminal Appeal.

(9) Any judgment in connection with this matter use a pseudonym assigned by the Court, or such other anonymous initials as the Court thinks fit, in relation to his current proceedings before the Court of Criminal Appeal.

(10) There be no publication of the contents of any evidence in the appeal in respect of the nature of the assistance provided by the applicant, the location of the applicant (in custody), the location of his family, or any submissions referring to the same.

(11) These orders are sought to apply across the Commonwealth of Australia on the following s 8(1) grounds:

a. They are necessary to prevent prejudice to the proper administration of any justice process in NSW and South Australia (s 8(1)(a));
b. They are necessary to protect the safety of the applicant and his family (s 8(1)(c);
c. 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 (s 8(1)(e)).

(12) These orders operate for a period of 50 years or until further order of the Court.

THE COURT FURTHER ORDERS THAT:

(13) The orders made by Button J on 19 February 2021 are extended to apply to all of the material in Confidential Exhibit 1 of these proceedings.

THE COURT DIRECTS THAT:

(14) The pseudonym that the Court will assign to the applicant is “Bill Jones”.

Endnotes

Decision last updated: 22 September 2021

Medium Neutral Citation:	Jones (a pseudonym) v R [2021] NSWCCA 225
Hearing dates:	16 August 2021
Date of orders:	22 September 2021
Decision date:	22 September 2021
Before:	McCallum JA and Hamill J at [1] Cavanagh J at [2]
Decision:	(1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentence imposed in the District Court is quashed. (4) The matter is remitted to the District Court for re-sentence pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW).
Catchwords:	CRIME – Appeals – Appeal against sentence – Denial of procedural fairness – Confidential information detailing applicant’s assistance to the authorities provided to the Court by the Crown but not to the applicant’s legal representatives – Application of HT v The Queen – Appeal allowed
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	HT v The Queen (2019) 93 ALJR 1307; [2019] HCA 40 R v Birks (1990) 19 NSWLR 677; (1990) 48 A Crim R 385 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Category:	Principal judgment
Parties:	Bill Jones (a pseudonym) (Applicant) Regina (Respondent) Commissioner of New South Wales Police Force (Interested Party) Commissioner of South Australian Police Force (Interested Party)
Representation:	Counsel: G Lewer with D Mulligan (Applicant) E Balodis (Respondent) Solicitors: Legal Aid (NSW) (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) NSW Crown Solicitor’s Office (Interested Parties)
File Number(s):	2018/196406
Publication restriction:	In addition to the use of a pseudonym, there are non-publication and suppression orders in place which are annexed to this judgment.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 16/05/19 Before: Lakatos SC DCJ File Number(s): 2018/196406