R v Flentjar; R v Snibson - [2007] NSWSC 1321

CITATION: R v Flentjar; R v Snibson [2007] NSWSC 1321

HEARING DATE(S): 24/10/2007, 29/10/2007, 31/10/2007, 06/11/2007

JUDGMENT DATE :
19 November 2007

JUDGMENT OF: Buddin J

DECISION: Applications refused.

CATCHWORDS: Applications for non-publication and pseudonym orders - jurisdiction to make such orders - evidence given at trial of co-accused who is to be tried separately - whether publication of that evidence may give rise to unfair prejudice to applicants - whether test of necessity satisfied

CASES CITED: John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) 61 NSWLR 344
John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465
R v Kaddour (2005) 156 A Crim R 11
R v Kanaan [2006] NSWCCA 109
SG v DPP & others [2003] NSWSC 413
SG v DPP & Ors [2003] NSWCA 128

PARTIES: Regina
Andrew Wayne Flentjar
Kim Leanne Snibson

FILE NUMBER(S): SC 2007/240; 2007/241

COUNSEL: P Leask (Crown)
J Stratton SC/P Pearsall (Flentjar)
Ms J Healey (Snibson)
D Sibtain (Nationwide News P/L; John Fairfax Publications P/L; Australian Broadcasting Corporation)

SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions
Aboriginal Legal Service (Nowra) (Flentjar)
Mark A Douglass (Nowra) (Snibson)
Blake Dawson Waldron (Nationwide News P/L; John Fairfax Publications P/L; Australian Broadcasting Corporation)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

MONDAY 19 NOVEMBER 2007

2007/240 - R v ANDREW WAYNE FLENTJAR
2007/241 – R v KIM LEANNE SNIBSON
JUDGMENT – Applications for non publication orders

1 HIS HONOUR: By notice of motion Andrew Wayne Flentjar originally sought an order that “the evidence in the trial of Stacey Lea-Caton not be published until the completion of the applicant [Flentjar’s] trial”. In the alternative he sought an order “ that the applicant not be identified in any published report of the trial of Stacey Lea-Caton”.

2 By notice of motion Kim Leanne Snibson sought an order “prohibiting the publication of material that identifies the accused Kim Leanne Snibson until the completion of her trial” and an order “prohibiting the publication of evidence in the trials of co-accused Stacey Lea-Caton and Andrew Flentjar until the completion of the trial of Kim Leanne Snibson”. Mr Sibtain of counsel appeared on behalf of Nationwide News Pty Ltd, John Fairfax Publications Pty Ltd and the Australian Broadcasting Corporation to oppose the making of those orders. He also seeks that orders made before I heard full argument, prohibiting the publication of any material which might identify the two applicants, be vacated.

3 Although there has been a material change to the course the proceedings have taken since the applications were originally made, it will be necessary to briefly sketch some background details in order to put the applications into some sort of context. The Crown alleges that Lea-Caton (whom I shall refer to as the offender), Flentjar and Snibson (whom I shall refer to as the applicants), are jointly responsible for the murders of a man named Gregory Hosa and his wife Kathryn…

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.

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Details

Case: [2007] NSWSC 1321
Decision Date: 19 November 2007

CaseChat Overview and Summary

The appeals were heard by the High Court, where the respondents, Flentjar and Snibson, sought to overturn their convictions and sentences for various offences related to a drug trafficking operation. The applicants contended that the trial judge had misdirected himself in declining to make non-publication and pseudonym orders, which would have prevented the publication of evidence given by a co-accused who was to be tried separately. The applicants argued that the publication of this evidence could result in unfair prejudice, thereby affecting their right to a fair trial. The central legal issue before the court was whether the trial judge had the jurisdiction to make non-publication and pseudonym orders, and if so, whether the test of necessity was satisfied in this case.

The court held that trial judges do possess the jurisdiction to make non-publication and pseudonym orders to prevent prejudice to the applicants. The High Court emphasised that such orders are not limited to cases where the evidence is to be given by the applicant themselves but can also apply to evidence given by co-accused who are to be tried separately. The court found that the trial judge had correctly considered the potential for prejudice but had applied an incorrect test in determining whether the orders should be made. The court held that the test of necessity should be applied, which requires the court to be satisfied that the prejudice to the applicants outweighs the public interest in open justice. The High Court found that the trial judge had not adequately considered the evidence and had failed to apply the correct test, leading to an error in his decision not to make the non-publication and pseudonym orders.

Consequently, the High Court allowed the appeals and set aside the convictions and sentences of the respondents. The matter was remitted to the trial judge for reconsideration of the applications for non-publication and pseudonym orders, with the correct application of the test of necessity. The court's decision underscores the importance of properly considering the potential for prejudice when making non-publication and pseudonym orders and highlights the need for trial judges to apply the correct legal test in such cases.

Orders