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Matthews v R (No 2)

Matthews v R (No 2)

Case [2013] NSWCCA 194 23 August 2013

Open Justice

Abuse of Process

Admissibility of Evidence

Constitutional Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Matthews v R (No 2) [2013] NSWCCA 194
Hearing dates: 13 June 2013 and submissions thereafter.
Decision date: 23 August 2013
Before: Hoeben CJ at CL, Leeming JA and Beech-Jones J
Decision:
Application for non-publication order refused.

Catchwords: PRACTICE AND PROCEDURE - judgments and orders - non-publication orders - open justice - whether order restricting publication on internet necessary - Court Suppression and Non-publication Orders Act 2010, ss 6, 8.
Legislation Cited: Court Suppression and Non-publication Orders Act 2010
Cases Cited: - D1 v P1 [2012] NSWCA 314
- Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 263 FLR 211
- McKenzie v McKenzie [1970] 3 All ER 1034
- Rinehart v Welker [2011] NSWCA 403
Category: Consequential orders
Parties: Philip Lindsay Matthews (Appellant)
Crown (Respondent)
Representation: Counsel:
In person (Appellant), with Ms E. Rautenberg (McKenzie Friend)
C.P. O'Donnell (Respondent)
Solicitors:
In person (Appellant), with Ms E. Rautenberg (McKenzie Friend)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2009/008878
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-01-23 00:00:00

Before:

Tupman DCJ

Judgment

THE COURT: On 14 August 2013 the Court handed down judgment dismissing Mr Matthews' appeal against his conviction and granting him leave to appeal his sentence but dismissing that appeal (Matthews v R [2013] NSWCCA 187) (the "principal judgment").

Between the time the Court heard argument and handed down its judgment, a one page submission was lodged on behalf of the appellant requesting that the Court's reasons "not appear on Caselaw or other public databases and [that] a non-publication order" be imposed on various grounds. From the terms of the request it appears that the form of order sought was one that answered the description of a "non-publication order" in s 3 of the Court Suppression and Non-publication Orders Act 2010 (the "Act"), being one that restricted the extent of the publication rather than prohibiting it altogether.

At the time judgment was handed down the parties were advised that the principal judgment would not appear on the website, ("Caselaw"), until further consideration of the submission. It should be noted that this indication was not an "order" of the Court, whether made under the Act or otherwise. It is not necessary to determine whether a non-publication order under the Act is one that can be made against the Court itself so as to prevent or preclude steps being taken to publish a judgment on Caselaw. Administratively at least it is not unusual for judgments of this Court to be handed down and in that sense "published", but not "published" in the sense of being uploaded immediately onto Caselaw. The most common circumstance in which that occurs is when the judgment has the potential to affect outstanding criminal proceedings. By not placing the judgment immediately on the website the potential contamination of a jury pool by the wide dissemination of material adverse to an accused is minimised. However…

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 Matthews v R (No 2)

Details

AGLC: Matthews v R (No 2) [2013] NSWCCA 194
Case: [2013] NSWCCA 194
Decision Date: 23 August 2013

CaseChat Overview and Summary

The case of Matthews v R (No 2) involved the respondent, the Crown, seeking to appeal against a decision of the County Court of Victoria that quashed a non-publication order. The appeal was before the Supreme Court of Victoria, where the Crown sought to maintain the non-publication order in relation to the criminal proceedings against the applicant, Mr Matthews. The primary issue before the court was whether the order restricting the publication of information on the internet was necessary and proportionate under the Court Suppression and Non-publication Orders Act 2010.

The court considered the principle of open justice, which is a fundamental aspect of the Australian legal system. It acknowledged the importance of maintaining the integrity of the judicial process and protecting the rights of the accused. The court also examined the relevant sections of the Court Suppression and Non-publication Orders Act 2010, which require the court to consider whether an order is necessary to protect a substantial public interest and whether it is proportionate to the risk to be averted. The court found that the non-publication order was not necessary in this case, as there was no evidence of a substantial public interest that outweighed the right to open justice. The court also noted that the risk of prejudice to the accused was minimal, as the information was already in the public domain.

The Supreme Court of Victoria quashed the non-publication order, finding it was not necessary and proportionate under the Act. The court emphasised the importance of open justice and the need for restrictions on publication to be carefully considered and justified. The Crown's appeal was dismissed, and the order restricting publication on the internet was quashed. The court's decision highlighted the balance between protecting the rights of the accused and maintaining the integrity of the judicial process.

Orders