R v Warwick (No.92)

[2020] NSWSC 78

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Warwick (No.92) [2020] NSWSC 78
Hearing dates:	ON THE PAPERS
Date of orders:	14 February 2020
Decision date:	14 February 2020
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	Suppression order made on 21 August 2017 with respect to all judgments of the Court up to and including R v Warwick (No.32) [2018] NSW SC1105, except for R v Warwick (No.7) [2018] NSWSC 236 and R v Warwick (No.19) [2018] NSWSC 655 is revoked.
Catchwords:	CRIMINAL PROCEDURE – suppression order - suppression order no longer necessary – revoked – no point of principle
Legislation Cited:	Bail Act 2013 Court Suppression and Non-publication Orders Act 2010
Cases Cited:	R v Warwick [2017] NSW SC 1151 R v Warwick (No.2) [2017] NSWSC 1225 R v Warwick (No.7) [2018] NSWSC 236 R v Warwick (No.8) [2018] NSWSC 304. R v Warwick (No.19) [2018] NSWSC 655 R v Warwick (No.32) [2018] NSW SC1105
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	The Crown Leonard John Warwick (Accused)
Representation:	Counsel: K McKay / G Christofi (Crown) A R Conolly / I Benson (Accused)   Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused)
File Number(s):	2015/222068
Publication restriction:	Suppression order in relation to the names of the Accused’s wife and daughter: see R v Warwick (No.7) [2018] NSWSC 236. Suppression orders in relation to identification of particular witnesses. Suppression order regarding name of Offender's wife and daughter revoked by direction of Garling J on 20.8.2020. Suppression order relating to identification of particular witness remains in place.

Judgment

1. The Accused, Leonard John Warwick, was first arraigned in this court on 3 March 2017 upon an Indictment which contained 24 counts. To each of these counts the Accused pleaded not guilty. At that time, the trial was fixed to commence in February 2018 before a Jury.

The Court Makes a Suppression Order

2. On 21 August 2017, the Court heard pre-trial argument on two questions: whether the Crown ought be entitled to rely upon tendency and coincidence notices, and whether the counts on the Indictment ought be separated so that those counts which related to each of the seven separate Events of criminality would be heard at separate trials.

3. At the commencement of that argument, the Accused sought a suppression order on all aspects of pre-trial proceedings including the contents of any judgments delivered by the Court so that any details which emerged in pre‑trial proceedings or the judgments would not be published. The order was sought so as to avoid any potential impact upon the fairness of the trial which was to be conducted, at that time, before a jury.

4. The application was not opposed by the Crown and suppression orders pursuant to the CourtSuppression and Non-publication Orders Act 2010 (“the Act”) were made: see R v Warwick [2017] NSWSC 1151. The orders were expressed to continue until the jury returned with a verdict, or else until the subject of a further Court order.

Thirty-Two Interlocutory Judgments are Suppressed

5. Thereafter, until 16 July 2018, which was about the time when evidence commenced to be taken in the trial, 32 interlocutory judgments (all judgments up to and including R v Warwick (No.32) [2018] NSW SC1105) were suppressed.

Present Situation

6. Shortly before the trial commenced, the Crown agreed to the request of the Accused that the trial take place before a judge alone and without a jury.

7. On 12 February 2019, after 182 days of hearing, the evidence in the trial was concluded. That is to say, the evidence in the Crown case was concluded, the evidence put before the Court by the Accused in answer to the Crown's case was completed, and some documentary evidence tendered by the Crown in reply was also completed. The trial stands adjourned for a period before submissions of law, and submissions on all issues are to be taken.

8. As shown by the short reasons delivered when the suppression order was made, the sole reason why the suppression order was made was to avoid any potential impact upon the deliberations of a jury. As that reason no longer existed, the parties were invited to make any submission to the Court on the question of whether or not the suppression order ought be lifted on each of the pre-trial judgments, except R v Warwick (No.7) [2018] NSWSC 236 and R v Warwick (No.19) [2018] NSWSC 655.

Attitude of the Crown

9. The Crown submitted that it would be appropriate to lift the suppression order.

Attitude of the Accused

10. The Accused does not oppose the removal of the suppression order from most of the 32 judgments upon which submissions were invited. However, he opposes removing the suppression order for two judgments: R v Warwick (No.2) [2017] NSWSC 1225 and R v Warwick (No.8) [2018] NSWSC 304. In respect of those judgments, the Accused submits that restrictions should remain in place until verdict.

11. The judgment in R v Warwick (No.2) deals with the question of the Tendency and Coincidence Notices and whether separate trials should be ordered of the counts relating to the seven Events covered in the Indictment. The judgment in R v Warwick (No.8) deals with a bail application made by the Accused pursuant to the provisions of the Bail Act 2013.

12. In respect of these judgments, the Accused submits that it would be inappropriate to lift the suppression order because with respect to each judgment:

“It might well be anticipated that there would be media comment that the judge in the … trial had opined that the case against [the Accused] was strong. This would cause distress to [the Accused] and his family.”

13. It was also submitted that the phrase “the proper administration of justice” as in s 6 of the Act comprehends the public perception that justice has been administered impartially. It is submitted that if it were reported that a judge presiding over judge alone trial had made comments in the course of interlocutory judgments, the effect of which was that the Crown case was “strong” while the trial still proceeding, the public confidence in the impartiality of the proceedings may be adversely affected.

14. The Accused disclaimed any suggestion that the trial had in fact been conducted without the appropriate impartiality. He relied solely on the possible public perception.

Court Suppression and Non-publication Order Act 2010

15. Section 6 of the Act provides:

“In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.”

16. Section 7 of the Act provides the Court with the power to make a suppression or non-publication order, but only on grounds permitted by the Act.

17. Section 8 specifies the grounds. It is in the following form:

“8. Grounds for making an order:

1. A court may make a suppression order or non-publication order on one or more of the following grounds:

a) the order is necessary to prevent prejudice to the proper administration of justice,

b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security';

c) the order is necessary to protect the safety of any person;

d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature…;

e) 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.”

18. Section 12 of the Act provides that a court is to ensure that a suppression order operates for no longer than is reasonably necessary to achieve the purpose which it is made.

Discernment

19. Here the suppression order was made on the grounds set out in s 8(1)(a) of the Act, that is, upon the basis that such an order was necessary to prevent prejudice to the proper administration of justice. That was because, as earlier described, in a jury trial there was a risk from publicity about pre-trial proceedings including descriptions of evidence, (which may include evidence which is not ultimately admissible before a jury) of prejudice to the administration of justice, in that a jury may be influenced by having read such publicity, and takes into account impermissible material.

20. Those circumstances do not persist now because no jury was empanelled and the evidence in the trial has concluded. The original bases for the grant of the suppression order no longer exist.

21. The two reasons advanced by the Accused in his submissions are unpersuasive. Personal embarrassment and distress to the Accused and his family is not a consideration which could outweigh the public interest in open justice. The public has a strong interest in open justice and the public is entitled to know why it is that the trial has taken place as it has. It is entitled to know why evidence has been admitted, why the trial occurred on all counts on the Indictment and why adjournments and other applications have been dealt with in the way that they have and for the reasons which they have. I note that it was not suggested that there was any need to protect the safety of the Accused or his family members.

22. The second submission was that the public confidence in the impartiality of the proceedings may be adversely affected if the earlier judgments are published. In my view that is not established on the evidence or on the probabilities. On the contrary, public confidence in the impartiality of the proceedings will be positively enhanced if the public can see, in detail, the pre‑trial applications which have been made, the results of those pre-trial applications and the reasons why the Court has reached those results. After all, that is the only way of achieving the primary objective set forth in s 6 of the Act.

Conclusion

23. I am satisfied that that all pre-trial judgments, except for R v Warwick (No.7) and R v Warwick (No.19) should be published.

Orders

24. I make the following orders:

1. Suppression order made on 21 August 2017 with respect to all judgments of the Court up to and including R v Warwick (No.32) [2018] NSW SC1105, except for R v Warwick (No.7) [2018] NSWSC 236 and R v Warwick (No.19) [2018] NSWSC 655 is revoked.

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Amendments

24 August 2020 - Suppression order regarding name of Offender's wife and daughter revoked by direction of Garling J on 20.8.2020.

Suppression order relating to identification of particular witness remains in place.

24 August 2020 - Suppression order regarding name of Offender's wife and daughter revoked by direction of Garling J on 20.8.2020.

Suppression order relating to identification of particular witness remains in place.

Decision last updated: 24 August 2020