R v BR

Case [2010] ACTSC 17 4 March 2010

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HUMAN RIGHTS ACT

R v B R
[2010] ACTSC 17 (4 MARCH 2010)

CRIMINAL LAW AND PROCEDURE – non-publication order – principles for granting - “desirable in the interests of justice” – ensuring witness able to appear – Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 91.
APPEAL – decision following committal for sentence – whether decision is an appeal from a Magistrate or exercise of original jurisdiction – decision not appeal.

Crimes Act 1900 (ACT), s 65
Criminal Code Act 1995 (Cth), s 474.19
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 91, 91(1)(b), 40
Adoption Act 1993 (ACT), s 112
Coroner’s Act 1997 (ACT), s 40
Court Procedures Act 2004 (ACT), s 72
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40, 91
Magistrates Court Act 1930 (ACT), s 310
Federal Court of Australia Act 1976 (Cth), s 50
Human Rights Act 2004 (ACT)

Court Procedures Rules 2006 (ACT), r 4731

Magistrates Court Practice Direction No 2 of 2007 (ACT)

R v P J [2006] ACTSC 37
Re F (1989) 51 SASR 141
X v South Australia & Ors [2002] SASC 53
Medical Board of South Australia v AYHT (2001) 212 LSJS 208
Scott v Scott [1913] AC 417
Russell v Russell (1976) 134 CLR 495
Bond (1992) 62 A Crim R 383
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
R v XZ (2000) 116 A Crim R 308
R v Tillett and Ors; Ex parte Newton and Ors (1969) 14 FLR 101
Mellor v Thompson (1885) 31 Ch D 55
In re Martindale (1894) 3 Ch 193
Re A Barrister and Solicitor; Re Legal Practitioners Ordinance (No 2) 1970 (ACT) (1979) 40 FLR 316
National Companies and Securities Commission v Bankers Trust Australia Ltd and Ors (1989) 24 FCR 217
Attorney-General v Leveller Magazine Ltd & Ors [1979] AC 440
Australian Broadcasting Commission v Parish & Ors (1980) 29 ALR 228
E v Australian Red Cross Society & Ors (1991) 27 FCR 310
SRD v Australian Securities Commission & Anor (1994) 123 ALR 730
Commissioner of Australian Federal Police v Cox (1989) 87 ALR 163
Estates Property Investment Corporation Ltd v Pooley (1975) 3 ACLR 256
R v Tait (1979) 46 FLR 386
Raybos Australia Pty Ltd & Anor v Jones (1985) 2 NSWLR 47
John Fairfax Group Pty Ltd (Receivers & Managers Appointed) & Anor v Local Court of New South Wales & Ors (1991) 26 NSWLR 131

No. SCC 38 of 2010

Judge: Refshauge J
Supreme Court of the ACT

Date: 4 March 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCC 38 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

THE QUEEN
AND
BR

ORDER

Judge:  Refshauge J
Date:  2 February 2010
Place:  Canberra

THE COURT ORDERS THAT:

Under s 91(1)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) the publication of the name of the applicant, and accused, be forbidden.

The directions hearing on 25 February 2010 be vacated.

The proceedings be listed for sentence on 6…

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 R v BR

Details

AGLC: R v BR [2010] ACTSC 17
Case: [2010] ACTSC 17
Decision Date: 4 MARCH 2010

CaseChat Overview and Summary

The case of R v BR involved an application for a non-publication order in relation to the name of the applicant, who was also the accused. The application was made under section 91 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), with the primary objective of ensuring that the applicant's identity remained undisclosed to protect a witness's ability to testify. The legal dispute centred on the principles governing the granting of such non-publication orders and whether it was desirable in the interests of justice to prevent the publication of the accused's name. The court had to balance the rights of the accused against the necessity to safeguard the witness's ability to provide evidence without fear of repercussions.

The court addressed several key legal issues. Firstly, it had to determine the appropriate criteria for granting a non-publication order, particularly focusing on whether it was necessary to protect a witness's ability to testify. Secondly, the court needed to consider the implications of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and how it applied to the case at hand. The court also examined whether the decision following a committal for sentence should be treated as an appeal or an exercise of original jurisdiction. In this case, the court clarified that the decision was not an appeal from a Magistrate but an exercise of its original jurisdiction.

In its reasoning, the court concluded that the principles for granting a non-publication order under section 91(1)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) were met in this instance. The court found that it was indeed desirable in the interests of justice to ensure the applicant's identity remained confidential to protect the witness's ability to testify. Consequently, the court granted the non-publication order, forbidding the publication of the applicant's name. Additionally, the court vacated the directions hearing scheduled for 25 February 2010 and listed the proceedings for sentence on 6 May 2010. The prosecution was required to file and serve a statement of the facts on which it proposed to rely by 29 April 2010. The Chief Executive was also directed to prepare a pre-sentence report under Part 4.2 of the Crimes (Sentencing) Act 2005 (ACT). The court further varied the bail conditions to restrict the accused's access to computers and the internet, ensuring compliance with his employment terms and limiting his online activities.

Orders

Orders of the court

1. Under s 91(1)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) the publication of the name of the applicant, and accused, be forbidden.

2. The directions hearing on 25 February 2010 be vacated.

3. The proceedings be listed for sentence on 6 May 2010.

4. The prosecution file and serve a statement of the facts on which it proposes to rely on or before 29 April 2010.

5. The Chief Executive prepare a pre-sentence report under Part 4.2 of the Crimes (Sentencing) Act 2005 (ACT).

6. The bail granted to the accused be varied by deleting condition 3 and substituting “not to access a computer other than a laptop allocated by his employer, Enterprise IT Global and then only for the purpose of employment through the virtual global network between 7.00 am and midnight.” and adding an additional condition: “4. That the accused not access the Internet except via a computer in accordance with condition 3”.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

R v BR [2010] ACTSC 17

Most Recent Citation

R v Watcharaporn Nantahkhum [2012] ACTSC 55

Cases Citing This Decision

Monday (a pseudonym) v The Queen [2022] ACTCA 25
Citation 1 (Para 1)

…road review of the authorities underlines that the categories of cases where a non-publication order can appropriately be made are not closed: R v BR [2010] ACTSC 17 ( R v BR ) at [32]. In Australian Broadcasting Company v Parish (1980) 43 FLR 129 at 132–133, Bowen CJ observed the following in respect of the then…
The Owners of Units Plan No 932 v Marhaba [2017] ACTSC 13
Citation 2 (Para 1)

…cessary. There is, of course, a wide range of powers to conduct proceedings in court but still in private, by, for example, closing the court: R v BR [2010] ACTSC 17 at [25]. No doubt, the inherent jurisdiction would allow that to be done in an appropriate case in any event: R v BR at [24].…
R v Massey [2016] ACTSC 108
Citation 3 (Para 1)

…I considered the effect of the predecessor to the section, then numbered s 91 of the Act, in R v BR [2010] ACTSC 17 at [21]-[39]. One of the interests that (at [32]) I noted had been recognised as being in the interests of justice was where the life or safety of an important witness may be jeopardised by disclosur…
Plaintiff AB v Trustees of the Marist Brothers [2014] ACTSC 381
Citation 4 (Para 1)

…The authorities relevant to the operation of s 111 (previously numbered s 91 in the Act) were surveyed by Justice Refshauge in R v BR [2010] ACTSC 17. That was a criminal case where there was evidence of the potential impact of publicity on the applicant’s wife who had a long history of mental impairment and who h…
R v Meegan [2014] ACTSC 263
Citation 5 (Para 1)

…erent power to make orders that limit the principle of open justice, as noted in Russell v Russell at 520. Some categories, which I set out in R v BR [2010] ACTSC 17 at [24], are relatively well-established. The categories are not closed. There are also statutory provisions which now require names to be suppressed…
R v Watcharaporn Nantahkhum [2012] ACTSC 55
Citation 6 (Para 13)

…d from giving it if their names are published. This may well affect the fairness of the trial for both the accused and the Crown. As I said in R v BR [2010] ACTSC 17 at [40]–[41]: Applying these principles, it seems to me that the critical issue is whether it is reasonably likely that the fair trial (which, releva…

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Cases Cited

R v PJ [2006] ACTSC 37
Citation 1 (Para 1)

…In R v P J [2006] ACTSC 37, Connolly J dealt with an accused who had been committed for trial and an order suppressing his name that had been made by the learned Magistrate. His Honour commented (at [1]) that the order was made “on the sole, but proper basis that as the accused had school-aged children they would…
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101
Citation 2 (Para 1)

…e clearest significant exception is to have the identity of an informer withheld: John Fairfax & Sons Ltd v Police Tribunal of New South Wales & Anor (1986) 5 NSWLR 465 (at 472); R v XZ (2000) 116 A Crim R 308 (at 310). Similarly, exceptions might be made for national security ( R v Tillett & Ors; Ex parte Newton and…
R v O'Neill [2002] SASC 53
Citation 3 (Para 1)

…have been made. That decision might be said to be inconsistent with cases such as Re F (1989) 51 SASR 141 (at 147) and X v South Australia & Ors [2002] SASC 53 (at 58), though see Medical Board of South Australia v AYHT (2001) 212 LSJS 308.…
Bankers Trust Australia Ltd v National Companies & Securities Commission [1989] FCA 63
Citation 4 (Para 1)

…ade depends on the statute establishing the body or giving it power: National Companies and Securities Commission v Bankers Trust Australia Ltd & Ors (1989) 24 FCR 217 (at 232).…
Australian Broadcasting Commission v Parish [1980] FCA 40
Citation 5 (Para 1)

…0 of the Federal Court of Australia Act 1976 (Cth). In the leading decision on that section, namely Australian Broadcasting Commission v Parish & Ors (1980) 29 ALR 228, Bowen CJ (at 236) identified the relevant issues as follows:…
Russell v Russell [1976] HCA 23
Citation 6 (Para 1)

…That principle was affirmed by the High Court of Australia in Russell v Russell (1976) 134 CLR 495 (at 505, 520, 532).…
[1913] AC 417 [1913] AC 417
Citation 7 (Para 1)

…It has long been the position that court proceedings should be held publicly and in open view. That principle is fundamental: Scott v Scott [1913] AC 417 (at 437, 440, 445).…
[1979] AC 440 [1979] AC 440
Citation 8 (Para 1)

…idence given on a voir dire, which publication might come to the attention of the jury, is prohibited: Attorney-General v Leveller Magazine Ltd & Ors [1979] AC 440 (at 450).…

Legislation Cited

Evidence (Miscellaneous Provisions) Act 1991 (ACT) 40, 91, 91(1)(b)
4 mentions (from Para 1)
Court Procedures Rules 2006 (ACT) 4731
2 mentions (from Para 1)
Crimes Act 1900 (ACT) 65
2 mentions (from Para 1)
Federal Court of Australia Act 1976 (Cth) 50
2 mentions (from Para 1)
Adoption Act 1993 (ACT) 112
1 mention (from Para 1)
Court Procedures Act 2004 (ACT) 72
1 mention (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
1 mention (from Para 1)
Criminal Code Act 1995 (Cth)
1 mention (from Para 1)
Human Rights Act 2004 (ACT)
1 mention (from Para 1)
Magistrates Court Act 1930 (ACT) 310
1 mention (from Para 1)