R v Russell - [2022] NSWDC 513

District Court

New South Wales

Medium Neutral Citation: R v Russell [2022] NSWDC 513
Hearing dates: 16 September 2022
Date of orders: 26 October 2022
Decision date: 26 October 2022
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1. At the conclusion of these proceedings (including any appeal period), the Offender and any person who is acting, or who has from time to time acted, as his legal representative in this proceeding is:
(a) to return any physical copies of material served as part of tranches 1 and 2 of the Brief of Evidence (Brief Material) that are in that person’s possession to the Crown Solicitor’s Office (sealed in boxes and marked ‘Subject to Legal Professional Privilege’, to the extent of any such claim), on the undertaking that:
i. the Crown Solicitor’s Office will secure those materials for a period of five years from the date of these orders, and provide them to the Court if so required at any time during that period;
ii. no one in the employ of the Crown Solicitor will open the boxes marked “Subject to Legal Professional Privilege” without order of the Court.
(b) to destroy any electronic copies of the material served as part of tranches 1 and 2 of the Brief of Evidence which are in the possession of, or accessible by, that person;
(c) to destroy any listening device audio recording served as part of tranche 3 of the Brief of Evidence which is in the possession of, or accessible by, that person.
2. There is to be no use of the Brief Material returned to the Crown Solicitor’s Office in compliance with Order 1(a) above except for the purpose of these proceedings or any appeal related to these proceedings.
3. In these orders, Brief Material includes:
(a) any material served in the brief of evidence, whether in paper copy or stored electronically on a USB drive or any other form;
(b) any note made of any of the contents of any material falling within Order 3(a) above.
4. The solicitor in the office of the New South Wales Crown Solicitor with carriage of these matters on behalf of the Commissioner of Police, shall be given prior notice in writing, by email to crownsol@cso.nsw.gov.au, of any subpoena or other legal process to be issued in which the true identities of any of the Witnesses referred to in this application may be disclosed.
5. All confidential affidavits and confidential submissions are to be returned to the Crown Solicitor at the conclusion of the hearing of this application on the undertaking that such material will be secured and provided to the Court if later required.
6. The solicitor in the office of the New South Wales Crown Solicitor with carriage of these matters on behalf of the Commissioner of Police, is promptly to notify in writing the legal representatives who have previously acted for the Offender from time to time in this proceeding of the terms of these orders.

Catchwords:
CRIMINAL PROCEDURE —…

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 Russell

Details

AGLC: R v Russell [2022] NSWDC 513
Case: [2022] NSWDC 513
Decision Date: 26 October 2022

CaseChat Overview and Summary

The case of R v Russell involved the Crown seeking suppression and non-publication orders to protect the identity of certain witnesses and sensitive information related to the case. The orders were sought to ensure the anonymity of the witnesses and to protect the integrity of the proceedings. The court, led by Justice Hulme, was tasked with determining whether the orders were necessary to achieve these objectives.

The legal issues before the court were whether the suppression and non-publication orders were appropriate given the sensitivity of the case and the potential harm that could arise from the disclosure of the witnesses' identities and certain information. The court had to balance the public's right to know against the need to protect the witnesses and the integrity of the proceedings.

The court found that the suppression and non-publication orders were necessary to protect the witnesses and the integrity of the proceedings. The court noted that the witnesses were vulnerable and that the disclosure of their identities could put them at risk. The court also found that the information in question was sensitive and that its disclosure could prejudice the case. The court concluded that the orders were necessary to achieve these objectives and granted them accordingly.

The final orders included provisions for the return and destruction of certain materials, the secure storage of confidential affidavits and submissions, and the notification of relevant legal representatives of the terms of the orders. The court also ordered that the sealed boxes containing the Brief Material be stored securely for a period of five years and that no one in the employ of the Crown Solicitor would open them without order of the court.

Orders

Orders of the court

1. At the conclusion of these proceedings (including any appeal period), the Offender and any person who is acting, or who has from time to time acted, as his legal representative in this proceeding is:

(a) to return any physical copies of material served as part of tranches 1 and 2 of the Brief of Evidence (Brief Material) that are in that person’s possession to the Crown Solicitor’s Office (sealed in boxes and marked ‘Subject to Legal Professional Privilege’, to the extent of any such claim), on the undertaking that:

i. the Crown Solicitor’s Office will secure those materials for a period of five years from the date of these orders, and provide them to the Court if so required at any time during that period;

ii. no one in the employ of the Crown Solicitor will open the boxes marked “Subject to Legal Professional Privilege” without order of the Court.

(b) to destroy any electronic copies of the material served as part of tranches 1 and 2 of the Brief of Evidence which are in the possession of, or accessible by, that person;

(c) to destroy any listening device audio recording served as part of tranche 3 of the Brief of Evidence which is in the possession of, or accessible by, that person.

2. There is to be no use of the Brief Material returned to the Crown Solicitor’s Office in compliance with Order 1(a) above except for the purpose of these proceedings or any appeal related to these proceedings.

3. In these orders, Brief Material includes:

(a) any material served in the brief of evidence, whether in paper copy or stored electronically on a USB drive or any other form;

(b) any note made of any of the contents of any material falling within Order 3(a) above.

4. The solicitor in the office of the New South Wales Crown Solicitor with carriage of these matters on behalf of the Commissioner of Police, shall be given prior notice in writing, by email to crownsol@cso.nsw.gov.au, of any subpoena or other legal process to be issued in which the true identities of any of the Witnesses referred to in this application may be disclosed.

5. All confidential affidavits and confidential submissions are to be returned to the Crown Solicitor at the conclusion of the hearing of this application on the undertaking that such material will be secured and provided to the Court if later required.

6. The solicitor in the office of the New South Wales Crown Solicitor with carriage of these matters on behalf of the Commissioner of Police, is promptly to notify in writing the legal representatives who have previously acted for the Offender from time to time in this proceeding of the terms of these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Russell [2022] NSWDC 513
Hearing dates:	16 September 2022
Date of orders:	26 October 2022
Decision date:	26 October 2022
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1. At the conclusion of these proceedings (including any appeal period), the Offender and any person who is acting, or who has from time to time acted, as his legal representative in this proceeding is: (a) to return any physical copies of material served as part of tranches 1 and 2 of the Brief of Evidence (Brief Material) that are in that person’s possession to the Crown Solicitor’s Office (sealed in boxes and marked ‘Subject to Legal Professional Privilege’, to the extent of any such claim), on the undertaking that: i. the Crown Solicitor’s Office will secure those materials for a period of five years from the date of these orders, and provide them to the Court if so required at any time during that period; ii. no one in the employ of the Crown Solicitor will open the boxes marked “Subject to Legal Professional Privilege” without order of the Court. (b) to destroy any electronic copies of the material served as part of tranches 1 and 2 of the Brief of Evidence which are in the possession of, or accessible by, that person; (c) to destroy any listening device audio recording served as part of tranche 3 of the Brief of Evidence which is in the possession of, or accessible by, that person. 2. There is to be no use of the Brief Material returned to the Crown Solicitor’s Office in compliance with Order 1(a) above except for the purpose of these proceedings or any appeal related to these proceedings. 3. In these orders, Brief Material includes: (a) any material served in the brief of evidence, whether in paper copy or stored electronically on a USB drive or any other form; (b) any note made of any of the contents of any material falling within Order 3(a) above. 4. The solicitor in the office of the New South Wales Crown Solicitor with carriage of these matters on behalf of the Commissioner of Police, shall be given prior notice in writing, by email to crownsol@cso.nsw.gov.au, of any subpoena or other legal process to be issued in which the true identities of any of the Witnesses referred to in this application may be disclosed. 5. All confidential affidavits and confidential submissions are to be returned to the Crown Solicitor at the conclusion of the hearing of this application on the undertaking that such material will be secured and provided to the Court if later required. 6. The solicitor in the office of the New South Wales Crown Solicitor with carriage of these matters on behalf of the Commissioner of Police, is promptly to notify in writing the legal representatives who have previously acted for the Offender from time to time in this proceeding of the terms of these orders.
Catchwords:	CRIMINAL PROCEDURE —…