SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
Monday (a pseudonym) v The Queen
Citation:
[2022] ACTCA 25
Hearing Date:
12 November 2021
DecisionDate:
24 May 2022
Before:
Elkaim J, Loukas-Karlsson J and McWilliam AJ
Decision:
(1) The application for leave to appeal is refused.
(2) Order 2 of the orders made by Murrell CJ on 25 May 2021 is extended for a period of 28 days from the date of this order.
Catchwords:
APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – appeal against revocation of non-publication order – whether an order concerning the making or revocation of a non-publication order is an interlocutory order – s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – harm caused to third party
[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.
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AGLC
Monday (a pseudonym) v The Queen [2022] ACTCA 25
Case
[2022] ACTCA 25
Decision Date
CaseChat Overview and Summary
The case of Monday (a pseudonym) v The Queen concerned an appeal to the Supreme Court of the Australian Capital Territory against the revocation of a non-publication order. The appellant sought to appeal an order made by the Chief Justice on 25 May 2021, which had extended a previous order concerning the suppression of the appellant's name. The core of the dispute revolved around whether the order made by the Chief Justice was interlocutory or final, and consequently, whether leave to appeal was required.
The legal issues before the Court were whether an order concerning the making or revocation of a non-publication order is an interlocutory order, and if so, whether leave to appeal should be granted. The Court was required to consider the application of section 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and the potential harm caused to a third party by the publication of the appellant's identity. The Court also had to determine the scope of the "administration of justice" in the context of suppression orders, particularly after the finalisation of the principal criminal proceedings.
The majority of the Court, comprising Elkaim J and McWilliam AJ, concluded that the order under appeal was interlocutory because it concerned a procedural matter – the suppression of the appellant's name after sentencing – and did not finally dispose of the rights of the parties in the principal proceeding. Accordingly, leave to appeal was required. They declined to grant leave, finding that the primary judge's decision was not attended with sufficient doubt to warrant reconsideration, and the proceeding did not otherwise meet the established bases for granting leave. The majority interpreted the primary judge's reasoning as distinguishing between orders made during current proceedings and those made after finalisation. They adopted a definition of the "administration of justice" from *Rinehart v Welker*, which includes "justice between the parties" and considerations such as preventing hardship to individuals and ensuring the future supply of information to the courts. The majority found that while an order suppressing identification to prevent self-harm by a relative was appropriate during proceedings, once those proceedings were finalised, the rationale for such an order within the administration of justice was diminished.
The Court ordered that the application for leave to appeal be refused. It also ordered that Order 2 of the orders made by Murrell CJ on 25 May 2021 be extended for a period of 28 days from the date of the current order.