R v AB (No. 2)

Case •

[2018] NSWCCA 148

•

20 July 2018

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v AB (No. 2) [2018] NSWCCA 148
Hearing dates: 5 July 2018 and on the papers in relation to some of the relief sought
Date of orders: 20 July 2018
Decision date: 20 July 2018
Before: Meagher JA at [1];
Rothman J at [1];
Garling J at [1]
Decision:

1. Grant leave to AB to make an application under r 50C of the Criminal Appeal Rules (NSW).
2. Dismiss paragraphs 1, 2, 4, 5, 6, 7, 8 and 11 of AB’s notice of motion filed on 13 June 2018.
3. Vacate order 1 made by Simpson AJA, Bellew and Wilson JJ on 6 June 2018 and instead order that the orders of this Court made on 6 June 2018 be stayed until 5pm on Monday, 30 July 2018 or until the High Court grants or refuses a stay of those orders, whichever (of the expiry of that period and the High Court’s determination) first occurs.

Catchwords:

CRIME – where respondent convicted of historic sexual offences – where Court of Criminal Appeal set aside orders of District Court under Court Suppression and Non-publication Orders Act 2010 (NSW) in relation to identity of respondent – application under Criminal Appeal Rules (NSW), r 50C to set aside orders on appeal – whether Court misapprehended facts – whether respondent denied opportunity to address particular issue – whether Court overlooked evidence and submissions regarding respondent’s psychological safety – no ground for re-opening appeal made out

 

CRIME – application for stay of orders pending determination of application for special leave to appeal – assessment no realistic prospects special leave be granted – fact of application for special leave alone not warrant stay, notwithstanding refusal will result in application being of no utility

 

CRIME – application for stay of orders pending fresh application to the District Court under the Court Suppression and Non-publication Orders Act – stay not reasonably required for, or incidental and necessary to, exercise of appellate powers under that Act or to preserve efficacy of the Court’s judgments – no power to grant stay

CRIME – application for indemnity certificate under the Suitors Fund Act 1951 (NSW) – whether appeal under Court Suppression and Non-publication Orders Act, s 14 one to which Suitors Fund Act, s 6 can apply – power to issue certificate enlivened but not exercised
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 14
Criminal Appeal Act 1912 (NSW), ss 5F, 17
Criminal Appeal Rules (NSW), r 50C
Evidence Act 1995 (NSW), s 80(b)
Suitors’ Fund Act 1951 (NSW), s 6
Cases Cited: Alramadan v DPP (NSW) (No. 2) [2008] NSWCCA 69
Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497
Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300; [1993] HCA 6
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62
Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
DPP v Moradian, Saliba and Sparos [2010] NSWCCA 27
Elliot v The Queen; Blessington v The Queen (2007) 234 CLR 38; [2007] HCA 51
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125
Frost v Karouche (2014) 86 NSWLR 214; [2014] NSWCA 39
G v H (1994) 181 CLR 387; [1994] HCA 48
Gall v R (No. 2) [2015] NSWCCA 152
Gurnett v Macquarie Stevedoring Co Pty Ltd [No. 2] (1956) 95 CLR 106; [1956] HCA 29
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84
Jones v Sutherland Shire Council (1979) 2 NSWLR 206
Kauwenberghs v R [2009] NSWCCA 201
Nagi v Director of Public Prosecutions (No 2) [2009] NSWCCA 198
Palmer v Permanent Custodians Ltd [2009] VSCA 164
Pelechowski v Registrar (Court of Appeal) (1999) 198 CLR 435; [1999] HCA 19
PFC v R (No. 2) [2014] NSWCCA 241
R v AB (No 1) [2018] NSWCCA 113
R v Hookham (No 2) (1993) 32 NSWLR 345
R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399
Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1
Smith v NSW Bar Association (1992) 176 CLR 256
State Bank of Victoria v Parry [1989] WAR 240
State of New South Wales v Abed (No 2) [2015] NSWCA 47
Stewart v The King (1921) 29 CLR 234; [1921] HCA 17
Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111; [1956] HCA 73
Texts Cited: N/A
Category:Principal judgment
Parties: AB (Applicant on motion)
Crown (Respondent)
Representation:

Counsel:

 

MA Robinson SC and VM Heath (Applicant)
B Baker (Crown)

 

Solicitors:

  B Dunstan (Applicant)
C Hyland (Solicitor for Public Prosecutions) (Crown)
File Number(s): 2015/281608
Publication restriction: The effect of this judgment is that the existing stay of the orders of this Court made on 6 June 2018 continued until 25 July 2018 when the High Court refused AB's application to that Court for a stay. Some of the offences dealt with in the proceedings are subject to the publication restriction in the Children (Criminal Proceedings) Act 1987 (NSW), s 15A. For that reason, a place name and the names of the complainants have been redacted.
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Citation:
N/A
Date of Decision:
12 December 2017
Before:
North DCJ
File Number(s):
2015/281608

HEADNOTE

[This headnote is not to be read as part of the judgment]

This Court set aside orders made by the District Court under the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act): R v AB (No 1) [2018] NSWCCA 113. The respondent to that appeal (“AB”) sought, by notice of motion, that the judgment and orders be set aside under Criminal Appeal Rules (NSW), r 50C; or stayed pending determination of his application for special leave to appeal to the High Court, or application to the District Court for further orders under the Act; and that he be granted a certificate under the Suitors’ Fund Act 1951 (NSW).

In support of the application under r 50C, AB argued that the Court misapprehended a fact when considering evidence of an incident relevant to the risks to the safety of his family, namely that the words “wheel” and “rim” are used interchangeably in relation to motor vehicles. There had been evidence AB’s daughter “experienced a rim of the vehicle to come off whilst driving as the nuts had been removed from same”. The Court had found that the event “as described (the reference being to a “rim” and not to the wheel itself) does not seem to have involved any significant risk of harm to the driver of the vehicle”.

AB further argued that the Court did not afford him the opportunity to make submissions as to what was likely to happen by way of further public response if the suppression orders were set aside; and that there was no evidence to support the finding that the “earlier dissemination of the information makes it less likely that those who were prepared to respond by way of outrage or threat, particularly on social media, will do so again”. AB finally submitted that the Court overlooked uncontested evidence and submissions as to his psychological safety, when considering the application of s 8(1)(c) of the Act.

Held (Meagher JA, Rothman and Garling JJ), dismissing the application:

In relation to the application under Criminal Appeal Rules, r 50C:

1.    There was no misapprehension of a critical fact. There is a difference between the “rim” and “wheel” of a vehicle, and the evidence drew that distinction. AB was seeking to re-argue inferences which might reasonably have been drawn from very limited evidence. Further, the lack of clarity in the evidence meant that the Court could not infer the incident was only consistent with deliberate conduct intended to cause harm: at [16], [17].

Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300; [1993] HCA 6, applied.

2. The inference regarding likely public response, in the context of earlier dissemination of information, drew upon human experience and common sense. It did not need to be proven by evidence: at [21].

G v H (1994) 181 CLR 387; [1994] HCA 48; Jones v Sutherland Shire Council (1979) 2 NSWLR 206; Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111; [1956] HCA 73, applied.

3. A sufficient opportunity to address a particular matter is given when it is logically involved in a proposition raised in argument as an un-conceded step in determining a conclusion contended for. The Crown had squarely raised the issue of what might happen if the existing suppression orders were lifted: at [22].

Autodesk Inc v Dyason, applied.

4. No submission was made to this Court, or to the primary judge, that AB’s safety from psychological harm should be considered under s 8(1)(c). The psychologist’s report which was said to be a significant aspect of the “uncontested evidence” did not form part of the appeal papers: at [23]-[25].

In relation to the application for a stay pending determination of the application for special leave:

5. There is no realistic prospect that special leave will be granted. Therefore, the fact of the special leave application does not warrant the grant of a stay notwithstanding that its refusal will result in the application being of no utility to AB. Nevertheless, AB should be afforded the opportunity to apply to the High Court for a stay: at [37].

Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1, applied.

In relation to the application for a stay pending the determination of the further application to the District Court:

6. The power to stay its orders to enable a fresh application to the District Court is not reasonably required for, or incidental and necessary to, the exercise of the Court of Criminal Appeal’s powers under the Act, or for the preservation of the subject-matter and efficacy of its judgments. It has no power to grant such a stay: at [41].

Elliot v The Queen; Blessington v The Queen (2007) 234 CLR 38; [2007] HCA 51; Pelechowski v Registrar (Court of Appeal) (1999) 198 CLR 435; [1999] HCA 19, considered.

In relation to the application for a certificate under the Suitors’ Fund Act:

7. The power to grant an indemnity certificate is enlivened when an appeal to this Court succeeds “on a question of law or fact”. That occurs when a dispositive issue in the appeal from an order involves a question of law or fact that has been wrongly decided by reference to the law and evidence at the time the appeal is heard, irrespective of whether it is necessary for such an error to be established for the exercise of the appellate court’s powers: at [50].

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47; Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40; Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497, considered.

8.    The certificate should not be granted. AB urged the outcome at first instance, which was valuable irrespective of the outcome on appeal. Further, the anomalous application of the Suitors’ Fund Act in criminal proceedings (where costs are not payable) means that certificates should only be granted in “unusual” or “exceptional” cases. The circumstances of the present case, including the fact of that variable outcome, are not sufficient to justify the grant of the certificate sought: at [54], [55].

R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399, applied.

Judgment

  1. THE COURT: By its judgment delivered on 6 June 2018, this Court allowed the Crown’s appeal and set aside orders made by the District Court under the Court Suppression and Non-publication Orders Act 2010 (NSW), s 7. Immediately following the delivery of judgment, AB filed a motion and affidavit seeking a temporary stay of those orders pending the determination of an application for special leave to appeal to the High Court. Simpson AJA, Bellew and Wilson JJ, by consent, ordered that this Court’s orders as made on 6 June 2018 be temporarily stayed until AB’s application for a stay was determined.

  2. On 13 June 2018, AB filed a further notice of motion seeking orders including:

  1. That the orders made by this Court allowing the appeal be set aside under Criminal Appeal Rules (NSW), r 50C (Order 1 sought by that motion);

  2. That the Court hear and determine a fresh application for orders under Suppression Orders Act, s 8(1)(c) (Order 3);

  3. That the orders made on 6 June 2018 be stayed pending determination of AB’s proposed application for special leave to appeal to the High Court (Order 6);

  4. That the orders made on 6 June 2018 be stayed pending determination of a fresh application to be made by AB to the District Court in respect of matters that have arisen since the hearing of 6 April 2018 (Order 8);

  5. That AB be granted a certificate under Suitors’ Fund Act 1951 (NSW), s 6(1) in respect of the appeal determined adversely to him on 6 June 2018 (Order 11).

  1. At a hearing on 15 June 2018 this Court as presently constituted made directions for the provision of written submissions in relation to the relief described in (1), (3) and (5) of [2] above, directed that the applications for the relief in (1) and (5) be determined on the papers, and dismissed the application for the relief described in (2), leaving that sought in (3) to be the subject of oral argument.

  2. AB’s application for special leave to appeal to the High Court was filed on 4 July 2018. On the same day, a notice of motion was filed in the District Court at [XX]. That motion, listed for directions or hearing on 30 July 2018, seeks a further non-publication and suppression order under s 8(1)(c).

  3. On 5 July 2018, at the commencement of the oral argument in support of the relief in (3) above, AB also sought the relief in (4). At the conclusion of argument, this Court reserved its decision in relation to each of those applications.

  4. Accordingly there are four matters for determination. They are AB’s application under r 50C to set aside this Court’s orders; the application for a stay pending the determination of AB’s special leave application; the application for a stay pending the determination of AB’s District Court motion; and AB’s application for a certificate under the Suitors’ Fund Act.

Application to set aside the orders of this Court of 6 June 2018

  1. Rule 50C of the Criminal Appeal Rules provides:

50C Power to set aside or vary order (cf UCPR rule 36.16)

(1)    The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order.

(1A)    An application to set aside or vary an order may only be made with the leave of the Court.

(1B)    The Court may determine both whether to grant leave and the application on the papers.

(2)    If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered.

(3)    Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered.

(4)    The Court may not extend the time limited by subrule (2) or (3).

(5)    Nothing in this rule affects any other power of the Court to set aside or vary an order (including any power to correct clerical mistakes or errors arising from accidental slips or omissions).

  1. AB’s application was made within 14 days of this Court’s orders being entered on 6 June 2018, but nevertheless requires leave: Rule 50C(1A). As was noted in Alramadan v DPP (NSW) (No. 2) [2008] NSWCCA 69 at [6] (Basten JA, Latham and Rothman JJ), the High Court confirmed in Elliot v The Queen; Blessington v The Queen (2007) 234 CLR 38; [2007] HCA 51 at [31]-[32] that guidance as to the criteria to be applied when this Court is exercising the power to “re-open” a proceeding is provided in the following remarks of Mason CJ in Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300 at 303; [1993] HCA 6:

What must emerge in order to enliven the jurisdiction is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.

  1. In this context a misapprehension of the facts is not merely a finding or holding as to a particular fact in issue that is asserted to be wrong. This is made clear by Mason CJ’s examples given in Autodesk at 302. In the judgment appealed from in Smith v NSW Bar Association (1992) 176 CLR 256, when assessing whether a barrister was guilty of professional misconduct in relation to statements made to a magistrate concerning his instructions, the Court of Appeal had proceeded on the basis that the barrister had not in any professional conduct tribunal given evidence of a particular conversation before doing so in the proceedings in that court. That conclusion was wrong and underpinned the majority’s finding that he had “invented” the relevant conversation. The making of that wrong assumption enlivened the power to re-open that Court’s judgment. As Brennan J emphasised in Autodesk at 310, the power to re-open is engaged where the relevant decision is given “in ignorance or forgetfulness of some statutory provision or of some critical fact”, and not because, as a result of further argument, the Court should be satisfied it reached a wrong conclusion of fact or law.

  2. If this Court has proceeded according to such a misapprehension of fact or law which cannot be attributed solely to the neglect or default of the moving party, it must then consider whether that misapprehension materially affected its orders so as to justify their being set aside or varied: Kauwenberghs v R [2009] NSWCCA 201 at [10] (Beazley JA, Hall and Fullerton JJ); PFC v R (No. 2) [2014] NSWCCA 241 at [32] (Fullerton, R A Hulme and Garling JJ); Gall v R (No. 2) [2015] NSWCCA 152 at [23] (Hoeben CJ at CL, R A Hulme and Davies JJ agreeing).

  3. AB relies on three grounds in support of his application to re-open and set aside this Court’s orders. They are:

  1. That in considering evidence concerning an incident relevant to the assessment of risks to the safety of AB and his family, the Court misapprehended a fact, namely that the words “wheel” and “rim”, when used in relation to a motor vehicle, are used interchangeably;

  2. That the issue as to what was likely to happen by way of further public response if the existing suppression orders were set aside was not raised by the Crown or the Court in argument, with the result that AB did not have an opportunity to make submissions on that question. It is also said there was no evidence to support this Court’s finding at Judgment [45] that the “earlier dissemination of the information makes it less likely that those who were prepared to respond by way of outrage or threat, particularly on social media, will do so again”;

  3. That in limiting its consideration of the application under Suppression Orders Act, s 8(1)(c) to safety from physical harm, the Court “overlooked [AB’s] uncontested evidence and submissions as to the prospect of further psychological harm”.

  1. It is convenient to address these grounds in this order.

Misapprehension of fact in relation to the difference between a “rim” and “wheel”

  1. At Judgment [43], Meagher JA’s summary of the evidence relied on by AB as justifying a suppression order under s 8(1)(c) (“the order is necessary to protect the safety of any person”) included:

… After 30 November and before 8 December 2017 there were further “threats” (unspecified in the evidence) left by telephone messages to the respondent’s home and an incident in which his daughter, having borrowed his motor vehicle, “experienced a rim of the vehicle to come off whilst driving as the nuts had been removed from same”. This event as described (the reference being to a “rim” and not to the wheel itself) does not seem to have involved any significant risk of harm to the driver of the vehicle.

  1. The evidence extracted above in quotations was the entirety of the evidence concerning this incident and was given on information and belief by AB’s solicitor. Meagher JA continued at Judgment [44]:

Taking account of this last incident, there remains no evidence of any action clearly directed to causing real harm or injury to the respondent; or of any threats of harm made to the respondent’s wife or children. Nor is there evidence of any credible threat of harm made to the respondent in the period after 8 December 2017 and before the hearing in this Court in early April 2018, notwithstanding that the information as to the respondent’s identity has remained freely available on the internet during the whole of that period.

  1. AB submits that in referring to the distinction between “rim” and “wheel” of a vehicle, his Honour misapprehended what was being said because whilst the rim is a circular part of the wheel, in their everyday use these words are interchangeable or have become so in common parlance. In AB’s written argument in support of the special leave application (at para 35) it is said that having regard to the evidence extracted in Judgment [43], such a misapprehension was material because the effect of that evidence was:

… removal or loosening of the nuts on the wheel rim renders the whole wheel assembly liable to suddenly detach from the vehicle when driven: so understood, this act is highly dangerous and it could not reasonably be considered to be other than for the purpose of causing the owner of the vehicle, the respondent or any other driver of the vehicle serious harm or death.

  1. This last submission both draws attention to the difficulties with the evidence as led, and confirms that there was no misapprehension of any critical fact. The probative value of the evidence lay in its describing an incident which realistically was only consistent with deliberate conduct intended to cause serious harm or worse to the driver, and any occupant of the vehicle. The submission accepts that there is a difference between a “wheel” and the “rim”, the latter being a part of the former. The evidence described the “rim” of the vehicle, as distinct from the wheel, as coming off. What it came off, whether it included the wheel detaching from the vehicle, and whether all or only some of the nuts were found to be missing or loosened, is not made clear.

  2. This lack of clarity in the evidence meant that the Court could not infer that what happened was only consistent with deliberate conduct intended to cause harm. As Meagher JA observed at Judgment [44], taking account of that evidence there remained “no evidence of any action clearly directed to causing real harm or injury to the respondent” (emphasis added). Importantly there was no ignorance or misapprehension of some critical fact. There is a difference between the “rim” and “wheel” and the evidence drew that distinction. In substance this ground seeks to re-argue the inferences that might reasonably have been drawn from the very limited evidence concerning this incident. It follows that this first ground for setting aside the Court’s judgment is not made out.

Denial of opportunity to address issue as to likelihood of further threats of harm

  1. As Meagher JA noted at Judgment [42], AB’s reliance on the ground in s 8(1)(c) “directs attention to the likely position concerning” his safety and that of his wife and their two young adult children “in the event that the existing order is revoked”. That required the Court consider, in the event that the suppression order was lifted, the likely responses of people who already know of AB’s identity, as well as of those who do not. The Crown’s primary argument, that there was no “utility” in continuing the suppression orders, was directed to this subject. It was submitted that those who were aware of AB’s identity and had continued to make threats were likely to do so, irrespective of whether the non-publication order was lifted. As to those persons who were not previously aware of AB’s identity, it was said to be speculative whether they would respond in the same way as others had earlier responded.

  2. At Judgment [45], Meagher JA addressed these questions, concluding:

In these circumstances, I am not satisfied that there is a real risk of physical harm to the respondent or his family which presently exists and is being minimised or avoided by the existing suppression order. If that order is revoked, subject to the application of the prohibition in s 15A, it is to be expected there will be further coverage particularly in the traditional media – press, radio and television – which identifies the respondent with the commission of offences involving [XX] and [XX]. However, any such publication of that information, particularly to the respondent’s local community, is not likely to produce any different response from that which occurred in late November and early December 2017. Indeed, the earlier dissemination of that information makes it less likely that those who were prepared to respond by way of outrage or threat, particularly on social media, will do so again.

  1. It is submitted on behalf of AB that the conclusion in the last sentence was “not based on any evidence” and that the issue to which it was directed was not raised by the Crown or the Court in argument, with the result that AB did not have an opportunity to address it.

  2. The first part of this submission does not identify a ground for setting aside this Court’s judgment under r 50C. If correct it might provide a basis for asserting error in any appeal from this Court’s fact finding. However, in making its assessment of the likely responses of the public to the availability of the information sought to be suppressed, the Court was entitled to draw on matters of ordinary human experience and common sense. As Brennan and McHugh JJ observed in G v H (1994) 181 CLR 387 at 390; [1994] HCA 48, the drawing of an inference as to the existence of a fact is “an exercise of the ordinary powers of human reason in the light of human experience”. The position is the same in relation to the drawing of inferences as to how people are likely to respond in or to particular circumstances. In each case, as Mahoney JA explained in Jones v Sutherland Shire Council (1979) 2 NSWLR 206 at 222-223, one step in the chain of reasoning involves drawing on human experience as to how people act. Under the common law that is not a matter that need be proved by evidence. See Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 118-119; [1956] HCA 73 (Dixon CJ, Kitto and Taylor JJ). That position is not affected by Evidence Act 1995 (NSW), s 80(b) which is concerned only with the admissibility of opinion evidence about matters of “common knowledge”, which might include matters of ordinary human experience.

  3. The second part of AB’s submission is simply not correct. As appears above, the Crown’s submissions addressed what might happen if the existing suppression order was lifted. Indeed the Crown’s “utility” argument was squarely directed to that question. A sufficient opportunity is given to address a particular matter or question when it is “logically involved in a proposition that has been raised in the course of argument before a court or is to be considered by the Court as an unconceded step in determining the validity of a conclusion for which one of the parties contends”: per Brennan J in Autodesk at 308. There was no misapprehension of the facts and no denial of procedural fairness, as this second ground seems to assert.

Consideration of application of s 8(1)(c) as limited to safety from physical harm

  1. The argument made by AB to this Court is the same as that advanced in support of his special leave application (para 36), it is said that this Court’s consideration of s 8(1)(c) “was wrongly limited to safety from physical harm” and “overlooked the applicant’s uncontested evidence and submissions to the primary judge as to the real prospect of further psychological harm being caused to the applicant personally”. The implication of this argument – that AB’s submissions to this Court were directed to the need to protect AB from the risk of psychological harm – is not correct. As Mr Robinson SC accepted in oral argument, at no time did senior counsel appearing for AB in the appeal submit or suggest that AB’s case under s 8(1)(c) extended to threats to his “psychological safety”. Indeed, the report dated 30 November 2017 of Ms Howell, the forensic psychologist qualified on behalf of AB, and relied on as a significant aspect of the “uncontested evidence” referred to, did not form part of the appeal papers before this Court.

  2. Nor was it submitted to the primary judge that the risk of psychological harm to AB should be considered when addressing his “safety” under s 8(1)(c). The submissions to the District Court focussed only on the threats of violence or harm to the physical safety of AB and his family. The essence of the argument made was that:

… the orders are necessary to protect the safety of [AB] and his family, that’s ground 8(1)(c), and there’s been no challenge to the evidence in that regard regarding the threats being made to the applicant and indeed the incident involving his daughter.

  1. In the result the issue of psychological safety was not argued before the primary judge as a basis of the orders sought. Nor was it raised in this Court. Accordingly the matter was not overlooked. It simply did not form part of AB’s case, either at first instance or on appeal.

Conclusion in relation to r 50C application

  1. None of the grounds argued in support of AB’s application to re-open is made out. Because the merits of the application have been dealt with, leave to make it should be granted and the application dismissed.

Application for temporary stay pending determination of special leave application

  1. It is accepted that the Court of Criminal Appeal has jurisdiction to grant such a stay, if the circumstances justify its doing so. The basis of that jurisdiction is considered below (at [40]). In Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1, the Court of Appeal (Bathurst CJ, Beazley and McColl JJA) refused to grant a stay of a judgment relating to non-publication orders where the applicant intended to file an application for special leave to appeal. In so concluding, their Honours (at [48]) applied the test in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84 in which Brennan J said (at 684) that the jurisdiction to stay a judgment of an intermediate appellate court to preserve the subject matter of litigation pending an application for special leave to appeal is an “extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted”. His Honour then identified (at 685) as factors material to the exercise of the High Court’s discretion to grant a stay in a matter where the Court is satisfied that is required to preserve the subject-matter of the litigation:

… first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

  1. It may be accepted that a stay of this Court’s order is required to preserve the subject-matter of the special leave application, namely the existing non-publication and suppression order made by the District Court on 12 December 2017. On one view, the significance of that subject-matter to AB depends on the outcome of his further application to the District Court. If that application were to be successful and not appealed by the Crown, Mr Robinson SC conceded that AB would not “need to pursue the High Court appeal”. However, from this Court’s perspective and in circumstances where the evidence relied on in that application has not been finalised, the likelihood of its being successful and not the subject of a further appeal cannot in the present context be treated as other than speculative. Accordingly, this application must be dealt with on the basis that the refusal of the stay sought (by this Court and the High Court) is likely to result in the application for special leave being rendered futile.

  2. In his application for special leave, AB identifies five questions as arising and deserving the attention of the High Court. They are:

(1) should what is necessary to protect the safety of any person under s 8(1)(c) Court Suppression and Non-publication Orders Act 2010 (NSW) be assessed by a calculus of risk considering the degree of the likelihood of the risk coming home and the gravity of the harm that may be incurred if it does, such that even a real possibility of a grave risk may make an order necessary?

(2) should what is necessary to protect the safety of any person under s 8(1)(c) Court Suppression and Non-publication Orders Act 2010 (NSW) be determined by assessing all risks taken together?

(3) in the absence of new evidence by the appellant, is the respondent to an appeal under section 14 Court Suppression and Non-publication Orders Act 2010 (NSW) required (reasons for decision [44] and [45]) to justify continuance of a suppression or non-publication order by leading new evidence of threats of harm occurring in the period of its operation?

(4)    whether the Court below made a mistake of fact or such importance that it failed to carry out its appellate function.

(5)    whether the applicant was denied procedural fairness in the premises.

  1. Questions (4) and (5) may be dealt with shortly.

  2. Question (4) is directed to the asserted error made by this Court in relation to the difference between a “rim” and “wheel” of a vehicle. That matter is addressed above. It involves a question of fact, raises no question of principle and has no realistic prospect of success.

  3. Question (5), which asserts a denial of procedural fairness, has two parts. The first is that AB was denied the opportunity to address the issue concerning the likelihood of further threats of harm in the event that the existing order is revoked. The second is that he was denied procedural fairness because this Court did not address an argument that the ground in s 8(1)(c) extends to safety from psychological harm. For the reasons outlined above, neither of these questions arises, and in each case the argument to the contrary has no sensible prospect of success.

  4. It remains to consider questions (1), (2) and (3) which are said to concern the construction of s 8(1)(c). Those questions are dealt with in AB’s written argument in support of his special leave application (paras 18 to 25).

  5. Question (1) as formulated was not the subject of any controversy in this Court as Judgment [31] and [32] show. In AB’s written argument to the High Court (para 21), it is said that the correct approach to the application of s 8(1)(c) should not have required that “the risk of death or serious injury be established as a matter that was ‘likely’ as opposed to a real and not fanciful possibility” (para 21). This Court did not adopt the former approach. It inquired whether there was a “real risk of physical harm to the respondent” revealed by conduct or threats. See Judgment [45] which is extracted at [19] above. Accordingly, question (1) does not arise.

  6. Secondly, in that written argument (para 22) it is also said that this Court only considered the risk of physical harm and that an issue arises as to whether s 8(1)(c) extends to safety from psychological harm. This issue does not form part of any of questions (1), (2) or (3) as formulated. More fundamentally, it does not arise for the reasons given above.

  7. Finally, it is submitted (para 23) that this Court erred in construing ss 8(1)(c) and 14 of the Suppression Orders Act as “together requiring the applicant to establish”, by calling evidence of what occurred in the period between the order being made and the hearing of the appeal, that at the latter time “there existed a real risk of physical harm that was being minimised or avoided by the existing suppression order”. This Court imposed no such requirement. The appeal under s 14 is by way of rehearing and one in which evidence may be given which is in addition to that given at first instance. Accordingly, this Court was required to decide the appeal by reference to the circumstances as they existed at the time the appeal was heard: Suppression Orders Act, s 14(5); and see Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62 at 619 (Mason J, Barwick CJ and Stephen J agreeing); Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23] (Gaudron, McHugh, Gummow and Hayne JJ). In that context the Court noted that there was no evidence of any credible threat of harm made to the respondent in the period after 8 December 2017 and before the hearing in early April 2018, notwithstanding that information as to AB’s identity remained freely available to be searched on the internet during the whole of that period. This observation was made in support of the conclusion of fact at Judgment [45]. The reasoning process supports a finding of fact and gives rise to no question of principle.

  8. In the result, this Court’s assessment is that there is no realistic prospect that special leave will be granted. That being the position, the fact of the special leave application does not warrant the grant of a stay notwithstanding that the effect of refusing it will result in that application being of no utility to AB. Finally it is accepted by the Crown that before the existing stay is terminated, AB should have the opportunity to consider this judgment and to make an application to the High Court for a stay of this Court’s orders pending the determination of his special leave application.

Application for a stay pending AB’s further application to the District Court

  1. The jurisdiction of the Court of Criminal Appeal is statutory and to be found in the statutes conferring it: Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at [22]. They are principally the Criminal Appeal Act 1912 (NSW), and relevantly for present purposes the Suppression Orders Act, s 14. The express jurisdiction conferred by s 14 includes the hearing and determination of appeals from orders made under that Act by the District Court in the exercise of its criminal jurisdiction where the appeal against the final judgment of that Court in the relevant proceeding is or would be to the Court of Criminal Appeal: R v AB (No 1) [2018] NSWCCA 113 at [25].

  2. AB’s application for a stay of this Court’s order to permit the making of a fresh application to the District Court is not made as a step in his response to the Crown’s appeal to this Court under s 14. That controversy was finally determined by this Court on 6 June 2018 when orders were made and entered: Burrell v The Queen at [18]-[20]. Nor is it made in support of the prosecution of AB’s application for special leave to appeal, and for the purpose of preserving the subject-matter of the litigation in this Court so that the right to appeal from this Court’s order to the High Court is not rendered ineffective. See Jennings v Burgundy Royale at 684; Nagi v Director of Public Prosecutions (No 2) [2009] NSWCCA 198 at [4] (Basten JA, Hulme and Johnson JJ).

  3. This Court’s power to stay the operation of its orders pending a special leave application arises either under the express power conferred by Criminal Appeal Act, s 12(1) or, in the absence of any specific provision, by an implied power. Section 12(1) provides that the Court may, if it thinks it necessary or expedient in the interests of justice, “exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters”. Those powers include the inherent power of a state Supreme Court to grant a stay of execution pending an application for special leave to appeal to the High Court in its appellate jurisdiction conferred by s 73 of the Constitution. See Rinehart v Welker at [19]; Palmer v Permanent Custodians Ltd [2009] VSCA 164 at [38] (Dodds-Streeton JA, Beach AJA agreeing); State Bank of Victoria v Parry [1989] WAR 240 at 244 (Malcolm CJ). Otherwise, an implied power to make such an order might be justified as reasonably necessary to preserve the subject-matter and efficacy of this Court’s judgments in a judicial system which provides for appeals to the High Court from the Court of Criminal Appeal, for this purpose treated as the Supreme Court. See Stewart v The King (1921) 29 CLR 234 at 240; [1921] HCA 17.

  1. However, this Court’s implied powers remain limited to those reasonably required for the effective exercise of its express powers: see Elliott v The Queen at [30]; and Pelechowski v Registrar (Court of Appeal) (1999) 198 CLR 435; [1999] HCA 19 at [50], [51] (Gaudron, Gummow and Callinan JJ). The power to grant a stay of its orders, after the determination of an appeal, and so as to enable a fresh application to be made to the District Court is not reasonably required for, or incidental and necessary to, the exercise of this Court’s powers under the Suppression Orders Act, or for the preservation of the subject-matter and efficacy of its judgments. Accordingly, it has no power to grant the stay of its judgment and orders sought by this application.

Application for a certificate under the Suitors’ Fund Act

  1. Section 6 of the Suitors’ Fund Act 1955 (NSW) relevantly provides:

6 Costs of certain appeals

(1) If an appeal against the decision of a court:

(a) to the Supreme Court on a question of law or fact,

…

succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.

  1. The purpose of this statute was described by Dixon CJ in Gurnett v Macquarie Stevedoring Co Pty Ltd [No. 2] (1956) 95 CLR 106 at 113; [1956] HCA 29 as being “to relieve litigants of the burden of costs that might be imposed upon them by reason of erroneous decisions on questions of law”. The Chief Justice concluded in that case, that “no question was involved as to any principle of law or any application of principle or as to the meaning or effect of any statutory provision”. The reference only to decisions on questions of law is explained by the fact that as originally enacted s 6 only provided for certificates to be granted in such appeals. In 1987 the section was amended by Suitors’ Fund Amendment Act 1987 (NSW) to include appeals against decisions on questions of fact.

  2. In the proceedings in this Court in R v Hookham (No 2) (1993) 32 NSWLR 345, Priestley JA (Wood and Sully JJ agreeing) described the reasoning behind the Act as being that “the court system, in what has happened prior to the appeal being upheld, has made a mistake and that there will be at least some circumstances in which cost caused by the fault of the system should not be visited on the respondent.” More recently, in State of New South Wales v Abed (No 2) [2015] NSWCA 47 at [39], Gleeson JA (Bathurst CJ and Macfarlan JA agreeing) described the statute’s purpose as being “to relieve the unsuccessful respondent of at least part of the costs for which he or she will be liable in circumstances where the Court system, run by the State, has erred”. The reasons given for not exercising the discretion in that case included (at [45]) that the erroneous decision of the primary judge was due in part to his taking a course urged by the moving party based on an earlier decision which had in fact been overruled. For similar reasoning relied on as justifying a refusal to grant a certificate, see Frost v Karouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [48] (Leeming JA, Beazley P and Basten JA agreeing).

  3. Although s 6 confers the power to grant an indemnity certificate on the “Supreme Court”, it was not contested by the Crown that for the purposes of this Act, that reference includes the Court of Criminal Appeal. And this Court has granted certificates under that Act on the basis that this power extends to it. See R v Hookham (No 2); R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399; and more generally Stuart v The King and the discussion in DPP v Moradian, Saliba and Sparos [2010] NSWCCA 27 at [6]-[10] (Basten JA, Howie and Johnson JJ).

  4. The power is enlivened if an “appeal” to this Court “on a question of law or fact” succeeds. In that event the Court may grant an indemnity certificate, the effect of which is, by s 6(2), to entitle the unsuccessful respondent to be paid an amount equal to (a) the appellant’s costs ordered to be paid and actually paid by the respondent, and (b) 50% of the amount payable pursuant to (a) or where no amount is so payable, an amount equal to the respondent’s taxed costs. The maximum amount payable from the Suitors’ Fund in any appeal to this Court is $10,000.

  5. The Crown submits that an appeal under s 14 is not an appeal to which s 6(1)(a) applies, because it is an appeal by way of a hearing de novo with the consequence that it is not necessary to establish error on the part of the first instance court before this Court’s appellate powers may be exercised.

  6. The appeal under s 14 is described in subsection (5) as one “by way of rehearing”. In Allesch v Maunz at [23] the plurality described the critical difference between an appeal by way of rehearing and a hearing de novo as being:

… that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error.

And also observed that “on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand”.

  1. This first argument of the Crown has two parts. The first is directed to the construction of s 6(1) and treats the description of “an appeal against” a decision “on a question of law or fact” as requiring for its satisfaction that the exercise of the appellate power depend on the establishment of error in relation to the relevant question of law or fact. The second part is directed to the characterisation of an appeal to this Court under s 14 as being by way of a hearing de novo, with the result that the Court’s powers may be exercised regardless of whether there has been error.

  2. In our view the language of s 6(1) is satisfied if the or a dispositive issue in the appeal from a judgment or order involves a question of law or fact that has been wrongly decided by reference to the law and evidence at the time the appeal is heard, and irrespective of whether it is necessary for such an error to be established for the exercise of the appellate court’s powers.

  3. As McHugh JA said in Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 545, the Suitors’ Fund Act is remedial legislation and to be given a beneficial construction. It is not necessary in this case to give the word “appeal” a particularly liberal construction (cf the cases referred to in Dao (No 2) at 515-516). An appeal is a right conferred by statute and the nature of that right depends on the terms of the statutory conditions conferring it. See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [11] (Gleeson CJ, Gaudron and Hayne JJ) and the analysis in Allesch v Maunz at [20]-[23]. Whilst for that reason there can be no definitive classification of statutory appeals, it may be accepted for present purposes that they include appeals by way of a hearing de novo in which the appellate court is required to exercise its powers, whether or not there was error at first instance. It does not follow that in such appeals the outcome may not in fact involve and turn on the identification of such error.

  4. In Dao (No 2), which was decided before the 1987 amendment, s 6(1) was held to be satisfied provided the “question of law [is] that upon which the success of the appeal turns”, it being unnecessary “to the scheme of the section that the successful question of law should necessarily have been dealt with in the decision of the court below”: at 512 (Kirby P, Samuels and McHugh JJA agreeing). Thus in that case it was sufficient to enliven the power under s 6(1) that the appeal was in fact successful on a question of law, it not being relevant to the satisfaction of that condition whether that question had been raised or dealt with below or wrongly decided at first instance so as to engage the appellate court’s power.

  5. This conclusion makes it unnecessary to consider the second part of the Crown’s first argument. We turn then to whether the success of the Crown’s appeal turned on a question of law or fact. The appeal to this Court was conducted on the evidence before the primary judge. The Crown submitted that the primary judge’s decision involved five errors. They included that the orders made “were not necessary for any of the purposes set out in s 8(1)” and that asserted error was agreed to raise the dispositive question in the appeal (Judgment [5], [6]). In arguing the appeal, AB supported the correctness of the primary judge’s conclusions on the grounds in s 8(1)(a) and (c), namely to ensure AB’s identity as a juvenile offender was not revealed, and to protect the safety of AB and his family: Judgment [33], [34]. The Crown’s argument that the suppression order was not justified on either of these grounds was upheld, a conclusion reached by deciding questions of law and fact relevant to each ground. Its success on that dispositive question was sufficient to satisfy the requirements of s 6(1).

  6. Although the discretionary power to grant an indemnity certificate is enlivened, in our view it should not be exercised in this case for two reasons. First, the subject matter of the underlying proceeding was the making of a suppression order which depended on the primary judge concluding that the public interest in open justice should give way to one or both of the interests propounded by AB by reference to the grounds in s 8(1)(a) and (c). In that context, the successful outcome of AB’s application depended on his persuading the primary judge that those grounds were made out, and irrespective of whether there was a risk that result might be overturned on appeal, as occurred. From AB’s perspective, success at first instance was a valuable outcome, providing the benefit of suppression orders, even if they might be set aside on appeal. In this respect, his position is different from that of a party to civil litigation who recovers a money judgment at first instance but is unsuccessful on appeal, with the result that the earlier success is wholly reversed. In AB’s case the outcome at first instance was the one that he urged and was prepared to accept, even if accompanied by a risk that it would be overturned on appeal.

  7. Secondly, the appeal was brought in criminal proceedings and, as was the case in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 at [104], in the appeal no costs order was sought or made, the Crown seemingly having taken the position that Criminal Appeal Act, s 17(1) applied and prevented an award of costs. Nor was any costs order sought or made in the District Court application which resulted in the orders appealed from. This is consistent with the parties proceeding on the basis of the common law principle that the Crown neither pays nor receives costs. One of the consequences of their doing so, and of the application of Criminal Appeal Act, s 17(1), was that in the event of an appeal under s 14, the successful party on appeal would not recover its costs of the appeal from the unsuccessful party or (albeit indirectly) by any indemnity against those costs provided from the Fund. This variable outcome as between the successful and unsuccessful parties to a criminal appeal was described in R v King, in the context of a successful appeal under Criminal Appeal Act, s 5F, as “anomalous”; and as only justifying the granting of a certificate under s 6 in a case which was “unusual” (Spigelman CJ at [99]) or “exceptional” (Dunford J at [104]). The circumstances of the present case, including the fact of that variable outcome, are not sufficient to justify the grant of the certificate sought.

Conclusion   

  1. In the argument on 5 July 2018, AB’s senior counsel accepted that the notice of motion filed on 6 June 2018 was “in effect spent” following the making of the orders of Simpson AJA, Bellew and Wilson JJ. As has already been noted, on 15 June 2018 the Court dismissed paragraph 3 of AB’s notice of motion of 13 June 2018. With the exception of paragraphs 9, 10 and 12, the orders proposed below address all of the remaining relief sought. Paragraph 9 was not pressed and the “catch all” paragraph 12 was not relied on in support of any further relief. Paragraph 10 was dealt with by the directions made on 15 June 2018.

  2. Accordingly, the orders of the Court are:

  1. Grant leave to AB to make an application under r 50C of the Criminal Appeal Rules (NSW);

  2. Dismiss paragraphs 1, 2, 4, 5, 6, 7, 8 and 11 of AB’s notice of motion filed on 13 June 2018;

  3. Vacate order 1 made by Simpson AJA, Bellew and Wilson JJ on 6 June 2018 and instead order that the orders of this Court made on 6 June 2018 be stayed until 5pm on Monday, 30 July 2018 or until the High Court grants or refuses a stay of those orders, whichever (of the expiry of that period and the High Court’s determination) first occurs.

*********

Amendments

26 July 2018 - Coversheet, [1], [55] and orders - members of bench amended

26 July 2018 - Publication Restriction note in coversheet - noting outcome of application to High Court for stay

08 April 2019 - Changes made to headnote and [38] to reflect change in case name.

Decision last updated: 08 April 2019

Most Recent Citation
Cases Citing This Decision

7

Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238
Mehajer v The King (No 2) [2024] NSWCCA 247
Karout v Director of Public Prosecutions (NSW) [2020] NSWCCA 15
Cases Cited

38

Statutory Material Cited

5

R v AB (No 1) [2018] NSWCCA 113
Autodesk Inc v Dyason (No 2) [1993] HCA 6
Applicant S116/2003 v Minister for Immigration And Citizenship & Anor [2008] HCASL 20