R v Flentjar; R v Snibson

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.