Obeid v The Queen - [2016] HCA 10

HIGH COURT OF AUSTRALIA
GAGELER J
EDWARD MOSES OBEID APPLICANT
AND
THE QUEEN RESPONDENT
Obeid v The Queen [No 2]
[2016] HCA 10
Date of Order: 20 January 2016
Date of Publication of Reasons: 4 April 2016
S265/2015
ORDER
1.Pursuant to s 77RE(1)(a) of the Judiciary Act 1903 (Cth), it being necessary to prevent prejudice to the proper administration of justice, until 11 March 2016, there be no publication of information tending to reveal the identity of the applicant in relation to:
(a)the application for special leave to appeal;

(b)the application to stay the trial proceedings; and

(c)the application for non-publication orders.

2.On or before 11 March 2016, either party or any person listed in s 77RG(2) of the Judiciary Act have liberty to apply by summons and supporting affidavit for an order varying order 1.

Representation
G O'L Reynolds SC with D P Hume for the applicant (instructed by Breene and Breene Solicitors)
W J Abraham QC with S F Beckett for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Obeid v The Queen [No 2]
Practice and procedure – High Court of Australia – Non-publication order – Application for non-publication order under s 77RE of Judiciary Act 1903 (Cth) – Application for special leave to appeal from orders of Court of Criminal Appeal of Supreme Court of New South Wales dismissing appeal from refusal of single judge to quash indictment or permanently stay criminal proceeding – Application in High Court for stay of criminal proceeding pending determination of special leave application – Respondent applies for non-publication order concerning information tending to reveal identity of applicant – Whether non-publication order should be made.
Judiciary Act 1903 (Cth), ss 77RE, 77RG.

GAGELER J. On 20 January 2016, I heard and determined an application for a non-publication order under s 77RE of the Judiciary Act 1903 (Cth) in respect of information in connection with an application filed on 15 December 2015 for special leave to appeal. These are the reasons for the orders then made.
The underlying application for special leave to appeal was from an order of the Court of Criminal Appeal of New South Wales, which dismissed an appeal from an order of a single judge of the Supreme Court of New South Wales. That single judge refused either to quash an indictment on which the applicant, a former Member of the Legislative Council of New South Wales, faced trial on the charge of wilfully misconducting himself in public office, or to stay permanently the criminal proceeding against him.
The application for a non-publication order was made by summons and supporting affidavit filed by the respondent prosecutor on 19 January 2016, just shortly before the time scheduled for the hearing by me of the applicant's application for a stay of the criminal proceeding against him pending the determination of his…

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 Obeid v The Queen

Details

AGLC: Obeid v The Queen [2016] HCA 10
Case: [2016] HCA 10
Decision Date: 4 April 2016

CaseChat Overview and Summary

The applicant, Obeid, sought special leave to appeal to the High Court of Australia from orders of the Court of Criminal Appeal of the Supreme Court of New South Wales. The Court of Criminal Appeal had dismissed Obeid's appeal from a single judge's refusal to quash an indictment or permanently stay criminal proceedings against him. Obeid also applied to the High Court for a stay of the criminal proceedings pending the determination of his special leave application. In this context, Obeid applied for a non-publication order concerning information that might reveal his identity.

The central legal issue before Gageler J was whether a non-publication order should be made pursuant to s 77RE of the *Judiciary Act 1903* (Cth) to prevent the publication of information tending to reveal the identity of the applicant. This question arose in the specific procedural context of applications for special leave to appeal, a stay of criminal proceedings, and the non-publication orders themselves.

Gageler J reasoned that a non-publication order was necessary to prevent prejudice to the proper administration of justice. The court exercised its power under s 77RE(1)(a) of the *Judiciary Act 1903* (Cth) to make such an order. The order prohibited the publication of information tending to reveal the applicant's identity in relation to the special leave application, the application to stay the trial proceedings, and the application for non-publication orders.

The non-publication order was made effective until 11 March 2016. The order also granted liberty to either party, or any person listed in s 77RG(2) of the *Judiciary Act*, to apply by summons and supporting affidavit for a variation of the order on or before that date.

Orders

Orders of the court

1. Pursuant to s 77RE(1)(a) of the Judiciary Act 1903 (Cth), it being necessary to prevent prejudice to the proper administration of justice, until 11 March 2016, there be no publication of information tending to reveal the identity of the applicant in relation to:

(a) the application for special leave to appeal;

(b) the application to stay the trial proceedings; and

2. On or before 11 March 2016, either party or any person listed in s 77RG(2) of the Judiciary Act have liberty to apply by summons and supporting affidavit for an order varying order 1.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GAGELER J

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Ratio Decidendi

Legal Principle Established

Established by: GAGELER J

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