R v White (No 2) - [2022] NSWSC 65

Supreme Court

New South Wales

Medium Neutral Citation: R v White (No 2) [2022] NSWSC 65
Hearing dates: 13 January 2022
Date of orders: 13 January 2022
Decision date: 13 January 2022
Jurisdiction: Common Law
Before: Wilson J
Decision:
(1) Vacate the Non-Publication Order made on 10 January 2022

Catchwords:
CRIMINAL PROCEDURE — Suppression and non-publication orders – whether application for continuation of non-publication orders should be granted where party intends to appeal – importance of principle of open justice – capacity of any future trial judge to ensure independence of jury – public interest in open justice prevails

Legislation Cited:
Criminal Appeal Act 1912 (NSW)

Category: Procedural rulings
Parties: Regina (Crown)
Scott Phillip White (Accused)
Representation:
Counsel:
B Hatfield (Crown)
B Rigg SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid (NSW) (Accused)

File Number(s): 2020/00141305
Publication restriction: Nil

EX TEMPORE Judgment (REVISED)

HER HONOUR: Having made orders and given judgment with respect to an application by the offender, Scott White (referred to as “the applicant for present purposes), to vacate a plea of guilty entered on 10 January 2022, such order being to refuse that application, the applicant now makes application to the Court for the continuation of existing non-publication orders and further non-publication orders which would prevent both the publication of the Court's reasons for the orders made today and any media reporting on the subject of these proceedings between 10 and 13 January 2022. The existing orders were made on 10 January 2022, pursuant to Part 2 of the Court Suppression and Non-Publication Orders Act 2010 (NSW).
The application is made in a context where senior counsel for the applicant has advised the Court that it is proposed to file an appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) against the order of the Court made today, seeking to have that order set aside.
It is submitted that if the appeal is in fact successful, the matter will then proceed as a trial and it will be necessary for a future court to determine the issue of admissibility of evidence - which was to be the Court's task this week - and for a jury to determine the question of whether or not the Crown has proved the accused's guilt beyond reasonable doubt. It is contended that, if that is in fact the course the matter takes, there is potential prejudice to the applicant in any publication of the details of the proceedings this week, and any publication beyond the parties of the Court's reasons for its earlier order.
The underlying submission in support of that is relatively clear: if a jury is to be empanelled to hear a trial, it is important that jurors do not have prior knowledge of matters which could cause them to have a pre-determined view, or to take a view of the evidence prejudiced by information gleaned from sources external to the Court and the evidence adduced before the Court. It is argued that…

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 White (No 2)

Details

AGLC: R v White (No 2) [2022] NSWSC 65
Case: [2022] NSWSC 65
Decision Date: 13 January 2022

CaseChat Overview and Summary

In the matter of the criminal prosecution against the respondent, R v White (No 2), the High Court was tasked with determining whether non-publication orders should be continued beyond the conclusion of the respondent's initial trial. The dispute arose due to concerns about potential prejudice to the respondent's right to a fair trial, given the extensive and sensationalised media coverage of the case. The Court of Appeal had previously granted non-publication orders during the trial and the respondent sought their continuation pending the outcome of an appeal against the conviction and sentence.

The legal issues before the Court centred on the balance between the respondent's right to a fair trial and the public interest in open justice. The Court was required to consider whether the continuation of non-publication orders was necessary to safeguard the respondent's right to a fair trial, or whether the principle of open justice should prevail. The Court also needed to assess whether any future trial judge could ensure the independence of the jury if the non-publication orders were lifted.

The Court determined that the principle of open justice, which is a fundamental aspect of the Australian legal system, should take precedence over the respondent's right to a fair trial in this instance. The Court found that the capacity of any future trial judge to ensure the independence of the jury was sufficient to protect the respondent's rights. The Court also concluded that the public interest in open justice and the maintenance of public confidence in the legal system outweighed the respondent's interest in continued non-publication orders. Consequently, the Court declined to grant the respondent's application for the continuation of the non-publication orders.

Orders