R v Warwick (No.7)

[2018] NSWSC 236

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Warwick (No.7) [2018] NSWSC 236
Hearing dates:	1 March 2018
Date of orders:	01 March 2018
Decision date:	01 March 2018
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	(1) An order until further order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 that the names of the family members of the accused who provide material in support of the accused's release application, including the fiancé of the accused's daughter, be suppressed; and that any information tending to reveal the identity of any such person is prohibited from publication or other disclosure on the grounds that this order is necessary to protect the safety of the persons identified and, further, that the order is necessary to prevent prejudice to the proper administration of justice. (2) Note that for more abundant caution the names of the family of the accused to which the order I have just made applies to those set out in Order 2 of the Notice of Motion of the accused dated 23 February 2018 and filed in court today. (3) Grant the parties liberty to apply with respect to these orders. (4) Order that the suppression order pursuant to s 7 operates until further order of the Court or seven days after conclusion of the accused's trial, whichever is the earlier. (5) Order that the suppression order applies throughout the Commonwealth of Australia.
Catchwords:	CRIMINAL PROCEDURE – application for suppression and non-publication order – application for release on bail before trial on serious indictable offences – Court Suppression and Non-publication Orders Act 2010 ss 7 and 8 – prejudice to the accused – safety of family members of the accused – principle of open justice – limited suppression order made
Legislation Cited:	Bail Act 2013 Court Suppression and Non-publication Orders Act 2010
Cases Cited:	Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52 Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	The Crown Leonard John Warwick (Accused)
Representation:	Counsel: K McKay / G Christofi (Crown) A Conolly (Sol) / E Ramsay (Sol) (Accused)   Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused)
File Number(s):	2015/222068
Publication restriction:	Not to be published until after return of verdict by Jury or further order of the Court. Non-publication order revoked by direction of Garling J on 20.8.2020.

EX TEMPORE Judgment

1. On 7 March 2018 the Court is scheduled to hear a release application made by the accused pursuant to the Bail Act 2013.

2. In accordance with Court directions, the solicitors for the accused have served on the Crown, and provided to the Court, material upon which they intend to rely from the wife of the accused, three children of the accused and the fiancé of one of the children.

3. The accused submits that, particularly in light of the combination of the nature and seriousness of the crimes with which he has been charged, the interest of the public in these charges and the media interest generated at the time he was arrested, together with a series of public interactions that some of the members of his family have been exposed to, he has a reasonable fear for the safety of the members of his family.

4. The accused’s lawyers submitted that a suppression order with respect to the identity of these individuals, but not the content of the evidence which they may give generally, is necessary to prevent prejudice to the proper administration of justice so that the release application can be heard and determined on all available material. They submit that the accused must be able to rely on the material that has been provided by his family members. There may, ultimately, be an issue raised on the release application, which it is now unnecessary to determine, as to whether the entirety of this material is relevant and, if it is relevant, what weight ought be given to it. However, that is presently beside the point.

5. It is submitted that there is a real risk if the Court does not make a suppression order with respect to the identity of the members of the accused's family that the accused will not persist in his application for release, which would not be in the interests of the administration of justice, or else that those who support his application for release may be exposed publicly to undue publicity or adverse public reaction.

6. Any order which the Court is asked to make must fall within the terms of the Court Suppression and Non-publication Orders Act 2010 (“CSNPO Act”). Section 6 of the CSNPO Act obliges the Court, when deciding whether to make a suppression order or non-publication order, to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

7. Section 8 of the CSNPO Act provides that a court may make a suppression order if such an order is necessary to prevent prejudice to the proper administration of justice, or where it is necessary to protect the safety of any person. Alternatively a third ground exists in s 8(1)(e) of the of the CSNPO Act for the Court to make a suppression order if it is otherwise necessary in the public interest for the order to be made, and that public interest significantly outweighs the public interest in open justice. The accused does not rely on this ground.

8. I am bound by Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 at [27]-[31], where Bathurst CJ and McColl JA noted that the word "necessary" in s 8, is a strong word and that an order under the CSNPO Act should only be made in exceptional circumstances. The Court of Criminal Appeal said in Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52 at [8] per Bathurst CJ:

“8. In par [46] of his judgment, Basten JA has expressed the view that the meaning of ‘necessary’ depends on the context in which it is used. I agree that what is necessary in any given case will depend on that context. It will depend on the particular grounds in s 8 of the Suppression Orders Act relied upon and the factual circumstances said to give rise to the order. I agree that the variables that Basten JA refers to in par [46] are all relevant to what will be necessary in a particular context. Although it is not sufficient, in my opinion, that the orders are merely reasonable or sensible, I agree that the word ‘necessary’ should not be given a narrow construction.”

9. It is important to recognise that the Court is not being asked on the hearing of the release application to close the court and not permit access to the court for members of the public or any media representative, nor is the Court being asked to suppress the content of the evidence or the other material which may be provided by members of the accused's family. What the Court is being asked to do is take some small steps to suppress the name and identity of the family members of the accused, which it is submitted are necessary, to protect the safety of each of those people and to prevent prejudice in the proper administration of justice.

10. I am persuaded, having regard to the nature of the charges which the accused faces, that the interest of the public in the nature of the proceedings against the accused, the fact that what the Court is being asked to consider is a release application pursuant to the Bail Act, and the past history of events surrounding the arrest of the accused, that a limited suppression order, which I will articulate shortly, is necessary to protect the safety of each of the members of the accused's family. In coming to that conclusion I have kept in mind, as I am obliged to, the necessity to ensure that justice is conducted in an open court.

11. Accordingly, I will make orders to the following effect:

1. An order until further order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 that the names of the family members of the accused who provide material in support of the accused's release application, including the fiancé of the accused's daughter, be suppressed; and that any information tending to reveal the identity of any such person is prohibited from publication or other disclosure on the grounds that this order is necessary to protect the safety of the persons identified and, further, that the order is necessary to prevent prejudice to the proper administration of justice.

2. Note that for more abundant caution the names of the family of the accused to which the order I have just made applies to those set out in Order 2 of the Notice of Motion of the accused dated 23 February 2018 and filed in court today.

3. Grant the parties liberty to apply with respect to these orders.

4. Order that the suppression order pursuant to s 7 operates until further order of the Court or seven days after conclusion of the accused's trial, whichever is the earlier.

5. Order that the suppression order applies throughout the Commonwealth of Australia.

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Amendments

24 August 2020 - Revocation of non-publication order

Decision last updated: 24 August 2020