Nagi v Director of Public Prosecutions (NSW) (No 2)

[2009] NSWCCA 198

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
NAGI v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) (NO 2) [2009] NSWCCA 198

FILE NUMBER(S):
2008/13633

HEARING DATE(S):
24 July 2009

JUDGMENT DATE:
4 August 2009

PARTIES:
Hassan Nagi (Appellant)
Director of Public Prosecutions (NSW) (Respondent)

JUDGMENT OF:
Basten JA Hulme J Johnson J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/13633

LOWER COURT JUDICIAL OFFICER:
Bennett DCJ

LOWER COURT DATE OF DECISION:
3 June 2009

COUNSEL:
C Steirn SC/M Johnston (Appellant)
M Grogan (Respondent)

SOLICITORS:
Michael Ayache (VA Lawyers) (Appellant)
S Kavanagh (Respondent)

CATCHWORDS:
PRACTICE & PROCEDURE – non-publication order – appeal against refusal of non-publication order dismissed – foreshadowed application for special leave to appeal – stay of orders dismissing appeal

LEGISLATION CITED:

CASES CITED:
[<i>Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [No 1]</i>] [1986] HCA 84; 161 CLR 681

TEXTS CITED:

DECISION:
(1)  Stay the orders made in the principal judgment until the later of the following times:[<br>][<br>](a)  if no application for special leave to appeal to the High Court is filed and served (notwithstanding r 41.03.1 of the High Court Rules) within 28 days of pronouncement of this judgment, upon the expiration of that period;[<br>] (b)  if an application is filed and served in accordance with (a), the day on which the application is disposed of by the High Court.[<br>][<br>](2)  Whilst the orders in the principal judgment are stayed, publication of the principal judgment and orders is prohibited subject to the following exceptions:[<br>][<br>](a)  such publication as is necessary for the further administration of justice in relation to the sentencing proceedings, the proceedings in this Court and any proceedings commenced in the High Court of Australia;[<br>](b)  such other publication as may be made by or on behalf of the applicant, with his prior written consent.[<br>][<br>](3)  Grant liberty to the Director of Public Prosecutions and the applicant to apply to a judge of this Court for a variation of orders (1) and (2) above, on three days notice.[<br>][<br>](4)  Direct that any publication of the principal judgment and orders permitted under these orders, during the period for which the principal orders are stayed, be accompanied by a copy of this judgment.[<br>][<br>](5)  Note that none of the foregoing ancillary orders prevents or limits the publication of this judgment and these orders.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/13633

BASTEN JA
HULME J
JOHNSON J

4 August 2009

Hassan NAGI v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) (NO 2)

Judgment

1. Judgment of THE COURT delivered by Basten JA:  The applicant was a taxi driver.  He was charged in February 2009 with a number of counts of sexual assault on three women.  On 12 February 2009 he pleaded guilty to an indictment containing six counts.  On that date, he appeared before Bennett DCJ in the District Court at Sydney and was formally convicted of each offence.  The hearing was adjourned for sentencing.

2. The matter came before Bennett DCJ on three subsequent occasions, namely 28 April, 27 May and 3 June 2009.  The applicant has not yet been sentenced.  As a result of certain events which occurred in March 2009, information became available which was potentially relevant to the sentencing exercise.  So much was common ground between counsel for the prosecution and for the applicant.  However, the applicant sought to have the Court order that there be no publication of the material.  Save on an interim basis, to permit the issues to be ventilated in argument, Bennett DCJ declined to make such an order but allowed the applicant an opportunity to take steps to have this Court review that decision.  He considered it inappropriate to sentence the applicant until this issue was resolved.  Despite his Honour’s conclusion that publication should be permitted, the steps taken provided continued confidentiality until the review by this Court was completed.

3. The matter came before this Court on 24 July 2009.  At the conclusion of oral argument, the applicant requested that, if the Court were minded to refuse leave or if leave were granted, to dismiss the appeal, the Court should take steps to maintain the current level of confidentiality, to allow the applicant an opportunity to seek special leave to appeal to the High Court, should he be so advised.

4. This Court is minded to grant leave to appeal but dismiss the appeal.  Concurrently with this judgment, it is delivering its reasons for that decision (“the principal judgment”).  Conformably with the practice directed by Brennan J in Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [No 1] [1986] HCA 84; 161 CLR 681 at 684, this Court should consider whether a stay should be granted of its orders and judgment, pending determination of the special leave application. The Court is of the view that that course is appropriate, being the course adopted by the trial judge pending determination of the appeal to this Court. However, to give effect to that view, it is also necessary to restrict publication of the judgment of this Court, which makes reference to the material for which confidentiality is sought to be maintained.

5. The Court now makes the following ancillary orders:

   (1)Stay the orders made in the principal judgment until the later of the following times:

   (a)if no application for special leave to appeal to the High Court is filed and served (notwithstanding r 41.03.1 of the High Court Rules) within 28 days of pronouncement of this judgment, upon the expiration of that period;

   (b)if an application is filed and served in accordance with (a), the day on which the application is disposed of by the High Court.

   (2)Whilst the orders in the principal judgment are stayed, publication of the principal judgment and orders is prohibited subject to the following exceptions:

   (a)such publication as is necessary for the further administration of justice in relation to the sentencing proceedings, the proceedings in this Court and any proceedings commenced in the High Court of Australia;

   (b)such other publication as may be made by or on behalf of the applicant, with his prior written consent.

   (3)Grant liberty to the Director of Public Prosecutions and the applicant to apply to a judge of this Court for a variation of orders (1) and (2) above, on three days notice.

   (4)Direct that any publication of the principal judgment and orders permitted under these orders, during the period for which the principal orders are stayed, be accompanied by a copy of this judgment.

   (5)Note that none of the foregoing ancillary orders prevents or limits the publication of this judgment and these orders.

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LAST UPDATED:
5 August 2009