R v NK (No 2)

[2015] NSWSC 1282

Supreme Court

New South Wales

Medium Neutral Citation:	R v NK (No 2) [2015] NSWSC 1282
Hearing dates:	3 September 2015
Date of orders:	03 September 2015
Decision date:	03 September 2015
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	(a) There can be publication of the fact that a former member of the Brothers for Life was today sentenced and publication of the length of that sentence and the charges for which he was sentenced. (b) There can be publication of the fact that it is anticipated that the offender will be a witness in upcoming proceedings. (c) It can be published that the court made a suppression order in relation to a remarks on sentence and that suppression orders exist in relation to the identity of the offender and other persons.
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW)
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.

Judgment

1. I am about to deliver my remarks and sentence in relation to the offender Witness L. It is anticipated that Witness L will be a witness in criminal proceedings against 8 men and one woman which are due to commence in the Supreme Court on 2 November 2015. A large number of pre-trial issues have been foreshadowed and it is expected that the trial or trials of those 9 accused persons will commence on 29 February 2016.

2. On 3 July 2015, Johnson J sitting in the Arraignment list ordered that there be no be a non-publication order with respect to the name of the accused, Witness L. Johnson J further directed that there be no publication of any part of that day’s proceedings.

3. The matter was then listed for sentence before me on 20 and 21 August 2015. Before the commencement of the sentencing proceedings the parties made an application for further orders pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW). Accordingly I made the following orders:

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

2. There'll be a suppression order pursuant to s 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.

4. I note for the purposes of s 8 of the Act that the grounds upon which I made 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 interest to make that order.

5. Those orders were to remain in force until further order. The court was closed for a small part of the proceedings that related specifically to the assistance provided by the offender.

6. In anticipation of my remarks on sentence, the parties have asked for further non-publication orders and suppression orders for pursuant to the act. The learned Crown prosecutor has submitted in writing as follows:

“A suppression order with respect to the reasons for sentence is sought pursuant to section 7 (A) and (B) of the court suppression and nonpublication orders act 2010.

Pre-trial proceedings are listed before the Supreme Court on 2 November 2015. The trial of 9 accused for serious game related offences is set down for 29 February 2016 with an estimate of 6 months.

There are a number of informer witnesses to be called. The court is aware that threats have been made to witnesses and their families. I understand that there has been previous publicity in relation to these matters and it would be anticipated that the reasons for sentence may attract significant media attention and initiate the reporting of an account of the past such media attention or reporting may impact upon the ability of the accused to have a fair trial and upon the safety of the witnesses. Such an outcome would prejudice the proper administration of justice. Any delay in having the matter is heard would prejudice the administration of justice and as such would not be in the public interest. The Crown submits that the order should operate until 29 February 2016. In doing so the public interest in open justice is merely postponed to ensure the proper administration of justice.

The Crown relies on the grounds as per 8 (1) (A) (C) and (the) of the act.

The Crown requests at the office of the Director of Public Prosecutions be exempt from the order to permit it to comply with its duties of disclosure with respect to the ongoing proceedings.”

7. Counsel for the accused has indicated that he agrees with those submissions and consents to the orders of this sort. Before determining the merit of the present application two things about the act should be noted. First, section 6 provides that “in deciding whether to make a suppression order or non-publication order, a court must take into account that the primary objective of the administration of justice is to safeguard the public interest in open justice.”

8. Further, section 9 (2) (D) provides that “a news media organisation” is entitled to appear and be heard by the court on an application for a suppression order on non- publication order.

9. The act does not provide a mechanism whereby a news media organisation that may be affected by such an order is to be notified of the application.

10. There are a number of journalists in court this morning but no media organisation has had the opportunity or sought the right to be heard on the application.

11. The remarks on sentence which I will shortly deliver are predicated on an assumption as to the accuracy of an agreed statement of facts. That agreed statement of facts, in turn, is based largely around a number of recorded interviews provided by the offender to the police. The accuracy, truthfulness and reliability of those recorded interviews have not been tested in the proceedings except in relation to one very specific issue (that being whether the offender formed an intention to kill in respect of count 5 on the indictment).

12. A footnote in the written version of the remarks on sentence makes the point that while I am acting on the agreed statement of facts I also anticipate that those facts will be “hotly disputed” when the pre-trial and trial proceedings take place later this year and next year.

13. However, the number of the statements that I make in the course of the remarks on sentence would, if reported, suggest that I had formed an adverse view in relation to a number of the persons accused of very serious offences and whose trial is yet to take place. Accordingly, there is, as the Crown submits, a real risk that any publication of the remarks on sentence will prejudice the rights of the nine accused to a fair trial. Equally, publication at this stage may put at risk the trial date. Significant administrative arrangements have been put in place to ensure that the trial date and pre-trial hearing is able to proceed. This includes the allocation of resources to ensure security, the availability of a very large jury pool, and arrangements being made to obtain a court room capable of accommodating the large number of lawyers and accused who will be present throughout the proceedings.

14. In addition to those matters, which of themselves are weighty enough, there is also the risk of danger to witnesses including, but not limited to, Witness L himself. I am aware that there are at least allegations of threats to the witnesses and, indeed, in the course of the sentencing proceedings a member of the public yelled out to the accused that “you are dead dog”. Accordingly, I am satisfied that the provisions of s 8 (1) (A), and (C) are satisfied. I propose to make the orders sought.

15. However, because of the overriding interest in open justice and the fact that no news media organisation has been heard I propose to make the length of the order until Friday, 16 October 2015 on which occasion the parties involved in the trial proceedings, the director of public prosecutions and any interested news media organisation will be entitled to make submissions. In the absence of submissions to the contrary, I will then extend the orders until the commencement of the trial being 29 February 2016.

16. Accordingly, I order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that there be no publication of the remarks on sentence in relation to the offender Witness L. That order is to remain in force until Friday, 16 October 2015 when I will consider whether it is to be extended. Any submission in relation to the extension of that order beyond Friday, 16 October 2015 will be heard on that date.

17. Pursuant to s 9 (4) I make the following exceptions and conditions to that order:

1. There can be publication of the fact that a former member of the Brothers for Life was today sentenced and publication of the length of that sentence and the charges for which he was sentenced.

2. There can be publication of the fact that it is anticipated that the offender will be a witness in upcoming proceedings.

3. It can be published that the court made a suppression order in relation to a remarks on sentence and that suppression orders exist in relation to the identity of the offender and other persons.

18. I direct the registrar to notify the parties in the proceedings for the Brothers For Life of those orders.

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Decision last updated: 13 December 2016