R v NK

[2015] NSWSC 1281

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v NK [2015] NSWSC 1281
Hearing dates:	20 August 2015
Date of orders:	20 August 2015
Decision date:	20 August 2015
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	(1) Pursuant to s 7A of The Court Suppression and Non-publication Orders Act 2010 there is to be no publication or other disclosure of any information tending to reveal the identity of the offender or X and X including any picture, image or description and any information that could reveal the current whereabouts of the offender or X or X. (2) There'll be a suppression order pursuant to section 7B of the Act restricting disclosure of any information concerning the assistance provided by the offender to investigating police and the prosecution with the exception of disclosure by the office of Director of Public Prosecutions in compliance with its obligation for disclosure with regard to ongoing related proceedings.
Catchwords:	CRIMINAL LAW – non publication
Legislation Cited:	Court Security Act 2005 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW)
Cases Cited:	R v Tait (1979) 46 FLR 386
Category:	Procedural and other rulings
Parties:	NK (Offender) Crown
Representation:	Counsel: J Crespo (Crown) E Ozen (Offender)   Solicitors: Solicitor for the NSW DPP (Crown) Benjamin & Leonardo (Offender)
File Number(s):	2014/19546; 2014/175887; 2015/26412
Publication restriction:	No publication of the offender’s name.

ex tempore Judgment

1. Witness L appears today for sentence in relation to a number of self-evidentiary serious charges. Before the proceedings commenced, or as soon as they did, the parties jointly applied for me to close the Court so that a preliminary matter could be considered.

2. In view of the nature of the matter that I anticipated would be pursued, I closed the Court with the exception of three police officers and court staff. Once the Court was closed, the parties essentially jointly made an application for various orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW), they being orders restricting or prohibiting publication in relation to certain information that will become evidence in the sentence proceedings. In addition to that, an application is made by the offender and supported by the learned Crown Prosecutor for there to be a closed court during certain parts of the evidence.

3. The parties tendered before me on this application, a confidential affidavit by one of the officers-in-charge of the investigation, as well as the statement of facts which will become evidence in the case on sentence. It is unnecessary to go into the detail of that material, other than to say it discloses that Witness L has, over a significant period of time, assisted the investigating police in their investigation of a series of extremely serious crimes including two murders, a number of shootings with intent to murder, and drug cases as well as generally providing information concerning the activities of a criminal syndicate known as the Brothers For Life.

4. As a consequence of that, his partner has been relocated and provided with an assumed identity. He is, I assume, in a form of seriously restricted protective custody, and I am told there have been threats and incidents threatening him. The nature of the activities of the Brothers For Life is disclosed in the statement of facts, and it only needs to be read to understand that the people involved, if those facts are accepted, are a group of potentially, extremely dangerous individuals. It is also to be expected that they have contacts outside of the nine accused who are coming up for trial before me later this year and early next year.

5. The Court does not close a court lightly, and the general proposition is that justice must be done in a public forum. Accordingly, the parties responsibly do not seek closure of the Court generally, but simply in relation to particular parts of the evidence. Those parts of the evidence have been identified as the evidence of Detective Browne, who is the author of the affidavit in exhibit VD1 which is a confidential affidavit; the evidence of the offender's partner and for part of the offender's evidence when he will give evidence, of the assistance that he has provided, as well as threats, I assume, that he has received, and possibly other incidents where those threats were carried out.

6. The Court has powers pursuant to the Court Security Act2005 (NSW) in section 7. Orders can be made "for securing order and safety in court premises or a part of the premises", and that gives the Court a statutory power to close the Court to particular groups of people or individuals. That power may have application in the present case, however, the application to close the Court as I see it, has more to do with my inherent power to do that which is appropriate and necessary in the interests of justice.

7. The learned Crown Prosecutor has referred me to the case of R v Tait (1979) 46 FLR 386 at 487. However, the principles that guide an application such as this are reasonably clear, and really do involve an assessment of what is in the interests of justice. It is in the interests of justice that the identity and information to be provided by X and those parts of the evidence of Witness L be given in a way that is not in any way affected by concerns that they may have as to the presence in court of people who may be motivated to do them harm, either in court, or perhaps more relevantly, in the aftermath of the evidence that they give as to the assistance Witness L has provided and is anticipated to continue to provide.

8. It is also in the interests of justice that Mr Browne be permitted to speak freely, both as to the content of the offender's assistance, and his assessment as one of the lead detectives in the case, as to the importance of and efficacy of that assistance and future assistance. The Court, otherwise, would remain open so that the general principles of open justice will not be offended, other than to the extent that it is necessary to protect the safety of people participating in the Court proceedings and their loved ones. For those reasons, I am satisfied that the orders sought by Mr Ozen and supported by the learned Crown Prosecutor ought to be made.

9. I will make the following orders :

1. Pursuant to s 7A of The Court Suppression and Non-publication Orders Act 2010 there is to be no publication or other disclosure of any information tending to reveal the identity of the offender or X and X including any picture, image or description and any information that could reveal the current whereabouts of the offender or X or X.

2. There'll be a suppression order pursuant to section 7B of the Act restricting disclosure of any information concerning the assistance provided by the offender to investigating police and the prosecution with the exception of disclosure by the office of Director of Public Prosecutions in compliance with its obligation for disclosure with regard to ongoing related proceedings.

10. I note for the purposes of s 8 of the Act that the grounds upon which I make those orders are:

1. To prevent prejudice to the proper administration of justice to ongoing proceedings.

2. That it is necessary to protect the safety of the offender and that it is in the public interests to do so.

11. The orders thus far articulated are to remain in force until further order, and pursuant to my inherent powers to protect the safety of persons involved in the litigation, I would order that the Court is to be closed during the evidence to be given by Detective Glenn Browne, the evidence to be given by X and that part of the evidence of the offender which touches upon his assistance and related matters, and I will be guided by Mr Ozen as to when I should close the Court for that latter purpose.

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Amendments

16 August 2017 - Typographical error.

Decision last updated: 16 August 2017