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R v Warwick (No.7)

R v Warwick (No.7)

Case [2018] NSWSC 236 1 March 2018

Appeal

Court Suppression and Non-publication Orders Act 2010

Bail

Prejudice to the Accused

Safety of Family Members

Open Justice

Suppression Order

Criminal Law

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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

On 7 March 2018 the Court is scheduled to hear a release application made by the accused pursuant to the Bail Act 2013.
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.
The accused submits that, particularly in light of…

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 Warwick (No.7)

Details

AGLC: R v Warwick (No.7) [2018] NSWSC 236
Case: [2018] NSWSC 236
Decision Date: 01 March 2018

CaseChat Overview and Summary

In the case of R v Warwick (No.7), the accused faced serious indictable offences and applied for a suppression and non-publication order. The application was made under sections 7 and 8 of the Court Suppression and Non-publication Orders Act 2010 to prevent prejudicial reporting that could affect the fairness of the trial. Additionally, the accused sought release on bail before trial, citing concerns for the safety of family members if their identities were disclosed. The court was tasked with balancing the accused's right to a fair trial against the public's right to know and the principle of open justice.

The court had to determine whether the prejudicial reporting would indeed compromise the fairness of the trial and whether the safety concerns of the accused's family were sufficiently substantiated. The court considered the potential prejudice to the accused, the risk to the family members, and the importance of maintaining the principle of open justice. It was necessary to weigh these factors carefully and decide if the interests of justice would be served by imposing a suppression or non-publication order.

After careful consideration, the court found that while there was a risk of prejudice to the accused, the safety concerns of the family members were significant enough to warrant a limited suppression order. The court determined that this approach would sufficiently protect the family members without unduly restricting the principle of open justice. The court also found that the application for bail should proceed, but with conditions to ensure the safety of the family members, including their anonymity.

The court made a limited suppression order to protect the identities of the family members and allowed the bail application to proceed under conditions that maintained their anonymity. The court's decision aimed to balance the need for a fair trial with the safety of the family members and the broader principle of open justice.

Orders