R v O’Brien (No 2)

[2024] NSWSC 385

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v O’Brien (No 2) [2024] NSWSC 385

Hearing dates:

4 April 2024

Date of orders:

4 April 2024

Decision date:

04 April 2024

Jurisdiction:

Common Law - Criminal

Before:

Garling J

Decision:

See [6]

Catchwords:

CRIMINAL PROCEDURE – Suppression and non-publication orders

Legislation Cited:

Law Enforcement (Controlled Operations) Act 1997 (NSW)

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases Cited:

Not applicable

Texts Cited:

Not applicable

Category:

Procedural rulings

Parties:

Crown
Christopher O’Brien (Accused)

Representation:

Counsel:
K Jeffreys / L Goodwin (Crown)
T Edwards SC / P Lange (Accused)

Solicitors:
Solicitor for Public Prosecutions (Crown)
One Group Legal (Accused)

File Number(s):

2022/69345

Publication restriction:

See non-publication orders made by Garling J on 4 April 2024

EX TEMPORE JUDGMENT

1. Application is made by the Commissioner of Police by Notice of Motion dated 28 March 2024 for orders pursuant to s 7 of the Court Suppression and Non-Publication Orders Act2010 and also pursuant to s 28 of the Law Enforcement (Controlled Operations) Act 1997.

2. In support of the orders sought in the Notice of Motion, the Commissioner relies upon two affidavits of Jason Weinstein, both sworn 28 March 2024. Confidentiality orders have been made with respect to the second of those affidavits.

3. The orders sought are not opposed by either the Crown or the accused.    

4. Upon this basis and the facts contained in both affidavits, which is inappropriate to be set out in detail here, I am satisfied that the orders sought are necessary to be made in these proceedings with respect to a person it is anticipated will give evidence and who will be known as Witness 1.

5. Such necessity arises because of the need to protect the safety of one or more individuals including Witness 1 and to prevent prejudice for the proper administration of justice.

6. Accordingly, I make the following orders:

1. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 and upon the grounds set out in s 8(1)(a) and s 8(1)(c) of that Act as well as pursuant to s 28 of the Law Enforcement (Controlled Operations) Act 1997, there shall be no disclosure by publication or otherwise of any information including, without limitation, any evidence or information about evidence that reveals or tends to reveal the identity of the witness currently known in these proceedings as Witness 1 including, but not limited to, the name of Witness 1, any visual or other description of the physical appearance and/or any other identifying features of Witness 1 and the place or district or region of residence or work of Witness 1 or the fact that Witness 1 has assisted police or other authorities or the fact that there was a civilian participant in controlled operations during the investigation of this matter.

2. Order 1 does not prevent disclosures that are made by a person:

1. who is either a legal practitioner who is engaged to act in these proceedings or a police officer or other public official performing duties in respect of these proceedings or their subject matter; and

2. for the proper purposes of conducting of these proceedings or discharging the functions of a police officer or other public official.

3. Pursuant to s 28 of the Law Enforcement (Controlled Operations) Act 1997, the Court shall be closed for the duration of the evidence given by Witness 1 at the trial and/or any evidence or submission that discloses sensitive information set out in Order 1 including during the reception of any evidence or submission that identifies or tends to identify the sensitive information subject to the following being permitted to be present in court; the presiding judge, the jury, the accused and their legal representatives, the legal representatives of the Crown, officers of the New South Wales Police Force involved in the investigation of the offences before the Court, the legal representatives of the New South Wales Commissioner of Police, staff of the Department of Corrective Services and Sheriff’s Officers and Supreme Court staff.

4. I order that Witness 1 shall be known in these proceedings by the pseudonym Witness 1.

5. In so far as these orders are made pursuant to the Court Suppression and Non-Publication Orders Act 2010, they apply throughout the Commonwealth of Australia and for the lifetime of Witness 1.

6. The forgoing orders do not prevent reference being made during the proceedings, to the extent required, for the proper preparation and conduct of the proceeding to the true identity of Witness 1.

**********

Amendments

24 April 2024 - Coversheet - corrected representation.

Decision last updated: 24 April 2024