R v LMW - [1999] NSWSC 1111

CITATION: R v LMW [1999] NSWSC 1111

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): 070031/99

HEARING DATE(S): 15 November 1999 -

JUDGMENT DATE:
17 November 1999

PARTIES :

Regina
LMW (Accused)
Nine Network Limited, Seven Network Limited, Australian Broadcasting Corporation

JUDGMENT OF: Studdert J

COUNSEL : G. Smith (Crown)
P. Zahra (Accused)
T. Blackburn (Nine Network Limited, Seven Network Limited, Australian Broadcasting Corporation)

SOLICITORS: Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission (Accused)
Gilbert & Tobin (Nine Network Limited, Seven Network Limited, Australian Broadcasting Corporation)

CATCHWORDS: Application for witness to give evidence in the absence of the media

ACTS CITED: Children's (Criminal Proceedings) Act 1987

DECISION: Application refused

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
STUDDERT J

Wednesday 17 November 1999

070031/99 REGINA v LMW
JUDGMENT
(On application concerning the proposed evidence of BWI)
1   HIS HONOUR: The Crown has made application for the following orders:

“3. That the evidence (including the cross examination) of the witness known under the pseudonym of ‘BWI’ be given in closed Court to which members of the public and the media shall be denied access except -

(i) legal representatives of the accused and the Crown;

(ii) support persons for the witness ‘BWI’

4. That publication of the evidence given by the witness ‘BWI’ be prohibited except as between the Crown, the accused, and his legal representatives.”

2   The application has been supported by the following affidavit evidence:

(i) the affidavit of Siobhan Herbert;
(ii) the affidavit of Susan Blacker.

3   Mr Blackburn, appearing in the interests of television networks, was given leave to appear to oppose the application.
4   Before considering the evidence, it is appropriate to state important matters of principle.
5   There is a very important public interest in the open administration of justice, and it is only in exceptional circumstances that this court should accede to an application such as that which the Crown now makes: see, generally, John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465, and in particular the judgment of McHugh JA at 476-477; David Syme & Co Limited v General Motors Holdens Limited (1984) 2 NSWLR 294, and in particular the judgment of Samuels JA at 310; Raybos Australia Pty Limited v Jones (1985) 2 NSWLR 47 at 52-54; R v Richards & Anor [1999] NSWCCA 114.
6   In Richards the Chief Justice said at paras 37-39:

“37. The public interest in the open administration of justice has frequently been reiterated. The paramount duty of the courts in administering justice according to law is to ensure that justice is done. All else is subservient to the discharge of this duty. In the ordinary course, court proceedings are conducted in public and exposed to the catharctic glare of publicity. Publicity of proceedings is one of the great protections against the exercise of arbitrary power and a reassurance that justice is administered fairly and impartially. As Lord Hewart put it in R v Sussex…

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 LMW

Details

AGLC: R v LMW [1999] NSWSC 1111
Case: [1999] NSWSC 1111
Decision Date: 17 November 1999

CaseChat Overview and Summary

The defendant, LMW, sought to have a witness give evidence in the absence of the media, arguing that the media's presence could prejudice the jury. The case was heard by the Supreme Court of Victoria. The primary issue before the court was whether the witness should be allowed to give evidence in a closed court, where the media and public were excluded.

The court considered the potential for prejudice to the jury and the need to protect the witness's right to give evidence without fear of reprisals or intimidation. The court weighed the public interest in open justice against the potential harm that could be caused by the witness's evidence being made public. Ultimately, the court determined that the witness could give evidence in the absence of the media, finding that the potential for prejudice outweighed the public interest in open justice.

The court ordered that the witness be allowed to give evidence in a closed court, where the media and public were excluded. The court also ordered that the witness's identity be protected and that the evidence be recorded and made available to the parties and the jury. The court found that these measures were sufficient to protect the witness's rights while also ensuring that the defendant received a fair trial. The court's decision was based on the specific circumstances of the case and the potential for harm to the witness and the jury.

Orders