R v Tangi (No 6)
[2020] NSWSC 541
•03 December 2019
Supreme Court
New South Wales
Medium Neutral Citation: R v Tangi (No 6) [2020] NSWSC 541 Hearing dates: 20-21, 25-29 November, 2-3 December 2019 Date of orders: 03 December 2019 Decision date: 03 December 2019 Jurisdiction: Common Law Before: Rothman J Decision: Suppression Order issued in relation to the identity of Witness D
Catchwords: CRIMINAL PROCEDURE – witness fears for safety – orders made Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 8, 8(1)(e) Cases Cited: Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19 Category: Procedural and other rulings Parties: Regina (Crown)
Abraham Ryan Tangi (Accused)Representation: Counsel:
Solicitors:
P Hogan (Crown)
G Wendler (Accused)
Director of Public Prosecutors (NSW) (Crown)
Universal Lawyers (Accused)
File Number(s): 2017/242644 Publication restriction: Not to be published until the conclusion of the trial
EX TEMPORE Judgment
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HIS HONOUR: The Court is mindful of the prima facie position that the public have an interest in ensuring that all justice is administered openly and that, therefore, that which occurs in court is, as a matter of public interest, a matter of significant weight in the determination of applications that in any way limit that principle of open justice.
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The legislation has, of course, dealt with that issue in s 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (hereinafter “the Act”). That is not the basis upon which the Crown seeks a suppression order in this case. Nevertheless, it is a matter that, in my view, is an issue of open justice, and is a matter that is a necessary consideration in dealing with all of the provisions in s 8 of the Act.
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The affidavit material before the Court suggests that one of the witnesses, to whom I will refer in this judgment as “Witness D”, fears for his safety. The affidavit material was suffering from some paucity, and gave me the initial impression that the fear related to his safety in the community. That impression was shared by the accused who initially opposed the orders.
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In the course of evidence by the deponent, Detective Senior Constable Murdoch, it became clear, without limiting that possibility, that one of the major issues of safety with which the witness was concerned, was the issue of his safety if and when he returns to prison. On that basis, the accused withdrew his opposition to the orders.
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At the moment, Witness D is on bail for fraud offences. From what I have been told, those fraud offences relate to the faking of injuries associated with car accidents and he is charged with fraud offences, some of which are to be dealt with summarily in the Local Court, and some of which will be on indictment in the District Court.
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The nature of the material, including the possession of approximately $100,000 in cash and/or possession of foreign currency and gold bullion, seems to indicate a relatively strong Crown case, and given the nature of the offences, it is more likely than not that Witness D, who has a prior criminal record, will be incarcerated as a consequence of the proceedings that are before the Court.
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Witness D expressed to Detective Senior Constable Murdoch, a fear for his safety on his return to goal and that is a whole new aspect of the safety of Witness D before the Court.
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One of the issues which the Court is required to deal with is the meaning of the word "necessary". The order that is made needs to be necessary to protect the safety of Witness D. In my view, the term "necessary", where used in s 8 of the Act, has an ordinary meaning given to the word, when used with the jurisdiction of a court. This means that the term does not mean "essential", but rather has aspects associated with reasonably appropriate for the achievement of the aim and purpose of the legislation. I rely, in particular, on the judgment Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19.
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In those circumstances, and particularly given the most appropriate concession by the accused, I make the order that the name of Witness D, and anything that would identify him, not be published.
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Decision last updated: 13 May 2020
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