Monday (a pseudonym) v The Queen (No 2)
[2022] ACTCA 28
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Monday (a pseudonym) v The Queen (No 2) |
Citation: | [2022] ACTCA 28 |
Hearing Date: | 21 June 2022 |
DecisionDate: | 21 June 2022 |
Before: | Mossop J |
Decision: | See [3] |
Catchwords: | APPEAL – CRIMINAL LAW – Jurisdiction, practice and procedure – application in proceeding to stay the revocation of a non-publication order over a convicted person’s identity or for a new non‑publication order – where application for special leave to appeal to the High Court is on foot in relation to the Court of Appeal’s refusal of leave to appeal the revocation of a non‑publication order – appropriate to grant an order where the subject matter of the application for special leave would be destroyed – non-publication of the appellant’s name is in the interests of the administration of justice – new non-publication order made under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) |
Legislation Cited: | Criminal Code 1995 (Cth), s 474.22A Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111 |
Cases Cited: | Monday (a pseudonym) v The Queen [2022] ACTCA 25 |
Parties: | Raynard Monday (a pseudonym) ( Applicant) The Queen ( Respondent) |
Representation: | Counsel P Edmonds ( Applicant) L Hannigan ( Respondent) |
| Solicitors Canberra Criminal Lawyers ( Applicant) Commonwealth Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 26 of 2021 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Murrell CJ Date of Decision: 25 May 2021 Case Title: R v Monday (a pseudonym) (No 2) Citation: [2021] ACTSC 100 |
MOSSOP J:
Introduction
The applicant Mr Monday (a pseudonym) pleaded guilty in 2020 to possessing or controlling child abuse material – two computer-generated images – contrary to s 474.22A of the Criminal Code 1995 (Cth). On 25 May 2021, the then Chief Justice sentenced him to a recognizance release order to be of good behaviour for two years with various conditions. On that day an application was made to the Chief Justice to revoke a non-publication order that had been in place since 21 May 2020. The Chief Justice revoked the non-publication order but made an interim non-publication order. The applicant appealed to the Court of Appeal. The appeal was heard in November 2021 and the Court of Appeal gave its decision on 24 May 2022: Monday (a pseudonym) v The Queen [2022] ACTCA 25. The interim non-publication order made by the Chief Justice was extended by the Court of Appeal for 28 days from 24 May 2022. The applicant has now applied for special leave to appeal to the High Court. It is apparent that if the non‑publication order is allowed to expire and no further order made, then the subject matter of the application for special leave and any appeal will be destroyed. In those circumstances it is appropriate to extend or make a further non‑publication order.
There was discussion at the hearing as to which of the two alternative orders sought in the application in proceeding should be made. The first being a continuation of the stay granted by the Court of Appeal of the Chief Justice’s order revoking the non-publication order, or alternatively a fresh order under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Both parties submitted that power existed under s 111 and that there was no issue as to the court being functus officio. It is therefore appropriate to make a further order under s 111, noting that it is in the interests of justice to do so in order to protect the subject matter of the appeal and the court is expressly empowered to make such an order “at any time during or after the hearing of the proceeding” by s 111(2).
The order of the Court is:
1. Pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), the publication of the appellant’s name and any information from which his identity could be inferred is forbidden until the dismissal of the application for special leave to appeal to the High Court, the determination of the appeal by the High Court or the discontinuance or abandonment of any such application or appeal, whichever occurs first.
| I certify that the preceding three [3] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: 1 July 2022 |
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