Samuels (a pseudonym) v The King - [2024] SASCA 50

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SAMUELS (A PSEUDONYM) v THE KING
[2024] SASCA 50
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable President Livesey and the Honourable Justice Lovell)
18 April 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - OTHER MATTERS
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - OTHER MATTERS
This was an ex parte application brought by the Director of Public Prosecutions (SA) (the Director) that the Court of Appeal receive evidence and hear submissions on an aspect of the appellant’s appeal in the absence, and without the knowledge, of the appellant. A contradictor was appointed to answer the Director’s application.
In the underlying proceedings, the appellant had brought an application for permission to appeal against sentence on the basis that, in the light of a lower sentence having been imposed on his co-offender, he had a justifiable sense of grievance with the sentence imposed on him.
The Director sought to resist that application on the ground that the sentence imposed on the appellant’s co-offender was attributable to the assistance that the co-offender had given investigative and prosecuting authorities. So as not to disclose the fact of the co-offender’s co-operation to the appellant, the Director sought to admit into evidence an affidavit for the purpose of answering the contention that the sentencing judge had departed from the parity principle and to make submissions in the appellant’s absence.
Held, per Kourakis CJ and Lovell JA, dismissing the application:
1.There is no express conferral of power on the Court of Appeal to hear any part of an appeal in private, and, even if it were accepted that the jurisdiction and/or power of the Court extended to the making of the orders sought, such orders should generally not be made. While the Director’s inability to contest appeals on the ground of disparity in cases of this kind may have unmeritorious consequences, the existence of proper grounds for the differentiation in the sentencing of co-offenders is such that it would be a substantial denial of procedural fairness to hear and determine that question in the absence of the appellant.

Held, per Livesey P, dismissing the application:
2.Whilst a court may adopt procedures that limit the open justice principle in the exercise of its inherent jurisdiction to secure the proper administration of justice, the course proposed by the Director goes well beyond anything previously countenanced and is without statutory backing.
3.Even if one were to assume that a hearing of the kind proposed by the Director might be within the Court’s power, that power ought not be exercised in the manner suggested. The Court should not exercise its inherent power so as to regulate its proceedings in a way that denies the appellant the fundamental common law right to participate in proceedings, disregarding both open justice and procedural fairness principles.

Criminal Procedure Act 1921 (SA) ss 157(1)(a)(iii), 158(7), referred to.
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; Hogan v Hinch (2011) 243 CLR 506; Prince Alfred College Inc v ADC (2016) 258 CLR 134, applied.
HT v The Queen (2019) 269 CLR 403, distinguished.
Al Rawi v Security Service [2012] 1 AC 531; Donnelly (a Pseudonym) v R [2022] SASCA 125; GZO v R (2021) 138 SASR 256; Jarvie v Magistrates’ Court of Victoria at Brunswick [1995] 1 VR 84; Kioa v West (1985) 159 CLR 550; R v Gladkowski (2000) 115 A Crim R 446; R v Golding (1980) 24 SASR 161; R v Harris (1992) 59 SASR 300; Hennessey (1979) 68 Cr App R 419; R v James & Sharman (1913) 9 Cr App Rep 142; R v Savvas (1989) 43 A Crim R 331, considered.

SAMUELS (A PSEUDONYM) v THE KING
[2024] SASCA 50

KOURAKIS CJ and LOVELL JA: This is an ex parte application brought by the Director of Public Prosecutions in the appellant’s appeal against sentence. The publication of these reasons has been delayed for a substantial period of time in order to preserve anonymity. The appellant’s complaint is that there is undue disparity between his sentence and the sentence imposed on a co-offender who had provided assistance to the police. The Director’s application, which he requested be heard in closed court and without notice to the appellant, sought the following orders:
a.admitting into evidence in the applicant’s appeal against sentence this affidavit for the purpose of answering the contention that the learned sentencing judge erred in the application of the parity principle in sentencing the applicant;
b.notwithstanding order 5(a) above, prohibiting the disclosure of this affidavit and anything tending to suggest that it exists and anything that would indicate that [the co-offender] was given credit in sentencing for cooperating with the authorities;
c.anonymising and/or de-identifying any reasons delivered by this Court on the hearing of this application, and delaying publication of those reasons for a sufficient period of time as to minimise any risk of the application and reasons being connected to [the co-offender].
The affidavit referred to in the proposed orders disclosed the assistance given by the co-offender and set out the course of his sentencing proceeding. After a hearing held in closed court and without notice to the appellant, this Court dismissed the Director’s application. We now publish these brief reasons.
It is doubtful that the jurisdiction of the Court of Appeal extends to receiving evidence and hearing submissions on a sentence appeal in the absence of one of the parties. The statutory conferral of jurisdiction to hear sentence appeals is premised on the adversarial processes of the common law, particularly in its criminal jurisdiction. There is no express conferral of power to hear any part of the appeal in private. The principle of legality generally demands explicit authorisation to proceed in a way which denies, or substantially diminishes, the procedural fairness ordinarily allowed a person whose liberty is put in jeopardy by criminal proceedings.
Even if it were to be accepted that the jurisdiction and/or power of the Court extended to the making of the orders sought, such orders should generally not be made in cases of this kind. The existence of proper grounds for the differentiation in the sentencing of co-offenders will generally be determinative of appeals of this kind. It would, therefore, be a substantial denial of procedural fairness to hear and determine that critical question in the absence of the appellant. The Director contended that special counsel might be appointed to put submissions in support of the appellant but without taking instructions from him. The appointment of special counsel would secure a contradictor, but would not allow the appellant any measure of procedural fairness.
We acknowledge that the Director’s inability to contest appeals on the ground of disparity without putting the co-offender at risk may have unmeritorious consequences. If there be a solution to this vexed problem, statutory intervention is necessary. However, we observe that a statutory scheme which conscripts this Court in one sided and secret processes of this kind would be problematic for a number of obvious reasons.
LIVESEY P: I joined in the orders made by the Court because, in the circumstances of this case, no orders can be tailored to afford practical justice to the appellant.[1]
[1] HT v The Queen (2019) 269 CLR 403, 430, [64] (Gordon J).
This case concerns the sentencing of co-offenders where their ostensible roles were similar, but the co-operation given by one offender resulted in sentences which are not similar. The offender who did not co-operate with the authorities seeks permission to appeal against what appears the harsher sentence, entertaining what appears to be a ‘justifiable sense of grievance’.[2]
[2] Lowe v The Queen (1984) 154 CLR 606, 613 (Mason J); Postiglione v The Queen (1997) 189 CLR 295, 323 (Gummow J).
Though the objective demonstration of a marked disparity between the sentences imposed on co-offenders does not necessarily mean that the appeal by the offender with the harsher sentence will be allowed,[3] in the absence of strong countervailing considerations, the appeal court will usually seek to eliminate marked disparities between sentences which cannot be justified.[4]
[3] R v Lagana [2012] SASCFC 135, [53] (White J), quoting Green v The Queen (2011) 244 CLR 462, 476, [33] (French CJ, Crennan and Kiefel JJ).
[4] R v MacGowan (1986) 42 SASR 580, 583 (King CJ).
The problem in this case arises because the appellant does not know about the co-operation given by the appellant’s co-offender. Whilst it is well-recognised that giving co‑operation usually warrants a reduction in sentence,[5] it is likewise clear that the fact of co-operation must ordinarily be kept confidential. There is a public interest in ensuring that any source of information valuable to law enforcement authorities continues to flow, and there is a need to ensure the personal safety of the informant.[6] The serious risks associated with an offender providing information to law enforcement are well-recognised.[7]
[5]     There is a public interest in promoting the view amongst offenders that there is ‘no honour amongst thieves’, R v James Sharman (1913) 9 Cr App R 142, 144 (Darling J); R v Golding (1980) 24 SASR 161, 163 (Wells J). See also GZO v The Queen (2021) 138 SASR 256; Donnelly (a Pseudonym) v The King [2022] SASCA 125.
[6]     ‘The Courts appreciate the need to protect the identity of informers, not only for their own safety but to ensure that the supply of information about criminal activities does not dry up’, Hennessey (1979) 68 Cr App R 419, 426 (Lawton LJ for the Court). See also R v Savvas (1989) 43 A Crim R 331, 336 (Hunt J); R v Harris (1992) 59 SASR 300, 302-303 (King CJ, with whom Olsson and Mullighan JJ agreed).
[7]     R v Golding (1980) 24 SASR 161, 170 (Wells J); Jarvie v Magistrates’ Court (of Victoria at Brunswick) [1995] 1 VR 84, 88 (Brooking J); R v Gladkowski (2000) 115 A Crim R 446, 447 [7] (Pincus, Thomas JJA and Atkinson J).
The dilemma for the Director of Public Prosecutions (SA) (the Director) is that he cannot defend the aggrieved appellant’s sentence appeal head-on by disclosing the fact of the co-offender’s co-operation. To meet this dilemma, the Director has proposed that this Court should proceed to hear a portion of the appeal in the absence of the appellant, albeit with the assistance of a contradictor.
Whilst it is accepted that this kind of private hearing risks offending the ‘open court principle’, as well as denying the appellant procedural fairness, it is submitted that this may be justified by resort to the Court’s inherent or implied power, which attaches to the grant of jurisdiction conferred by ss 157(1)(a)(iii) and 158(7) of the Criminal Procedure Act 1921 (SA) (the CPA). It is submitted that the inherent or implied power must be regarded as a collection of powers to be exercised in aid of jurisdiction.[8]
[8] NH v DPP (SA) (2016) 260 CLR 546, 577 [61] (French CJ, Kiefel and Bell JJ).
The Director submitted that the deeply rooted common law tradition of an open court, presided over by an independent judge who accords procedural fairness to both parties, is not immutable.[9] Rather, relying on dicta in HT v The Queen,[10] the Director submitted that the Court must determine how justice can best be achieved by tailoring orders which take into account the rights and needs of the parties.[11]
[9] Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 46-47 [1], [5] (French CJ); Hogan v Hinch (2011) 243 CLR 506, 531-532 [21] (French CJ); HT v The Queen (2019) 269 CLR 403, 417-423, [18]-[43] (Kiefel CJ, Bell and Keane JJ).
[10] HT v The Queen (2019) 269 CLR 403.
[11] HT v The Queen (2019) 269 CLR 403, 423 [44] (Kiefel CJ, Bell and Keane JJ), discussing Roussel Uclaf v Imperial Chemical Industries Plc [1990] FSR 25, 29-30 (Aldous J).
Acknowledging the extraordinary nature of the course for which he contended, the Director submitted that to do otherwise risked that justice would not be done. That is to say, that the appellant’s appeal would be decided on a false footing and, in all likelihood, adversely to the Crown. However, as counsel for the contradictor submitted, absent statutory authority, procedural fairness cannot be ‘reduced to nothingness’.[12]
[12] Kioa v West (1985) 159 CLR 550, 615-16 (Brennan J); Assistant CommissionerCondon v Pompano Pty Ltd (2013) 252 CLR 38, 105 [177] (Gageler J).
In HT v The Queen, the High Court considered a case where HT was not permitted access to evidence which addressed the assistance she had given to law enforcement. That evidence was taken into account when HT was sentenced for dishonesty offending. The Crown appealed the sentence on the ground that it was manifestly inadequate. When counsel for HT sought access to the evidence, access was opposed on the ground of public interest immunity. The prosecution sentence appeal was allowed, and HT was re-sentenced.
HT was granted special leave to appeal. The High Court held that the appeal to the Court of Criminal Appeal should have been dismissed for reasons that included the failure to afford HT procedural fairness. The High Court rejected any extension of the common law principles governing public interest immunity. The plurality considered how orders preventing access to the evidence might otherwise be supported:[13]
True it is that orders of the kind referred to, excepting disclosure from the general rule of the common law, are made for identifiable purposes: in the case of wards because the object of the proceedings is to protect and promote the best interests of the child; in the case of trade secrets because the very subject of the litigation may be destroyed. Clearly a case such as the present does not fall into either of those categories. But once it is accepted that there are certain classes of cases where a departure from the general rule may be justified for good reason, it makes it difficult to suggest that the court lacks jurisdiction to vary the basic principles of open and natural justice[14] or to say that the proper administration of justice may not require it. The trade secrets cases in particular show that the general rule is not absolute.[15] Consistently with the general rule of the common law regarding fairness in the conduct of proceedings, the concern of the courts is to avoid practical injustice.[16]
[13] HT v The Queen (2019) 269 CLR 403, 424 [46] (Kiefel CJ, Bell and Keane JJ).
[14] Al Rawi v Security Service [2012] 1 AC 531 at 599 [114] per Lord Mance JSC (with whom Baroness Hale of Richmond JSC agreed).
[15] Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 100 [157].
[16] Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 99 [156].
The Court adverted to cases where a party may consent to what was described as a ‘closed material procedure’:[17]
It may be that a case where a tailored order is not possible will be rare. Such a circumstance may raise the question whether a consent to confidentiality can be effective, whether it may in effect be waived.[18] In Al Rawi two members of the Supreme Court considered that a party should be able to consent to a closed material procedure.[19] Other members of the Court took the view that it was a matter of importance which had not been argued and therefore left the question open.[20] No concluded view need be expressed in this case. The parties did not argue this question. The respondents’ argument proceeded upon the assumption that consent could be effective. In any event the question is not an issue in this appeal.
[17] HT v The Queen (2019) 269 CLR 403, 425 [50] (Kiefel CJ, Bell and Keane JJ).
[18] See, eg, the discussion in Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed (2017), 492-496 and the cases there referred to.
[19] Al Rawi v Security Service [2012] 1 AC 531, 597 [113] per Lord Mance JSC (with whom Baroness Hale of Richmond JSC agreed).
[20] Al Rawi v Security Service [2012] 1 AC 531, 581 [46] per Lord Dyson JSC; 587 [75] per Lord Hope of Craighead DPSC.
The case referred to in this passage, Al Rawi v Security Service, concerned civil proceedings against the Crown for breach of statutory duty in connection with the alleged complicity of the Security Service and other organs of the United Kingdom in the detention and torture of five plaintiffs by foreign authorities at various locations, including Guantanamo Bay.[21] The Crown sought to rely upon material which had not been pleaded or disclosed but which it proposed to adduce in a ‘closed material procedure’, being:[22]
[21] Al Rawi v Security Service [2012] 1 AC 531.
[22] Al Rawi v Security Service [2012] 1 AC 531, 570 (formatting added).
… a procedure in which:
(a)      a party is permitted to:
(i)    comply with his obligations for disclosure of documents, and
(ii)     rely on pleadings and/or written evidence and/or oral evidence
without disclosing such material to other parties if and to the extent that disclosure to them would be contrary to the public interest (such withheld material being known as ‘closed material’), and
(b)disclosure of such closed material is made to special advocates and, where appropriate, the court; and
(c)the court must ensure that such closed material is not disclosed to any other parties or to any other person, save where it is satisfied that such disclosure would not be contrary to the public interest.
For the purposes of this definition, disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.
The Supreme Court of the United Kingdom dismissed the appeal from the Court of Appeal which had held that it was not open to a court in England and Wales to order a ‘closed material procedure’ in connection with the trial of an ordinary civil claim, absent statutory power or agreement between the parties.[23]
[23] Al Rawi v Security Service [2012] 1 AC 531, 541 [11] (Lord Neuberger MR for the Court).
In HT v The Queen, Nettle and Edelman JJ were ‘less sanguine’ than the plurality about how far courts may go in criminal proceedings to protect the confidentiality of sensitive information by tailoring orders:[24]
… it is fundamental to the Anglo-Australian criminal justice system that no-one is to be sentenced for a criminal offence without first being apprised of the basis on which he or she stands to be sentenced and being afforded the opportunity to be heard on it.[25] It is, therefore, self-evidently unacceptable for a sentencing judge to be provided with information pertinent to sentence that the prisoner may not see or upon which the prisoner may not give effective instructions to his or her counsel.[26]
[24] HT v The Queen (2019) 269 CLR 403, 427 [57].
[25] Pantorno v The Queen (1989) 166 CLR 466, 473‑474 (Mason CJ and Brennan J), 482‑483 (Deane, Toohey and Gaudron JJ); Burrell v The Queen (2008) 238 CLR 218, 226 [28] (Gummow A‑CJ, Hayne, Heydon, Crennan and Kiefel JJ); Moss v The Queen [2013] 1 WLR 3884, 3887 [5] (Lord Hughes JSC for the Privy Council); DL v The Queen (2018) 92 ALJR 764, 772 [39] (Bell, Keane, Nettle, Gordon and Edelman JJ).
[26] See Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318, 359 [117] (Heydon J). See also Al Rawi v Security Service [2012] 1 AC 531, 578 [36], 580 [42] (Lord Dyson JSC), 589 [83] (Lord Brown of Eaton-under-Heywood JSC); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 69 [62] (French CJ).

This case is distinguishable from HT v The Queen. In that case, the appellant knew of the existence of the evidence which addressed the co-operation she had given, though she did not know its detail and could not check or challenge it. In this case, it is proposed that the appellant will never know about the material concerning the co-operation given by the appellant’s co-offender, because it will be aired in a private hearing at which the appellant will be represented by a contradictor who cannot reveal anything to the appellant or appellant’s counsel.
Armed with that material, the Court will then be invited by the Director to proceed with a further hearing in open court in which the appellant’s counsel will put submissions about disparity in sentence in complete ignorance of what occurred during the private hearing. That is to say, both the Court and the Director will know what happened in secret, but the appellant and appellant’s counsel will never know what happened.
Whilst a court may adopt procedures that limit the open justice principle in the exercise of its inherent jurisdiction to secure the proper administration of justice,[27] what is proposed goes well beyond anything previously countenanced and is without statutory backing.[28] For example, the proposal made by the Director goes well beyond the recognised scope of a hearing which specifically addresses the co-operation given by a defendant, which is usually assisted by a Golding letter,[29] conducted in private but in the presence of the defendant, with restrictions imposed on the dissemination of the evidence adduced.
[27] Hogan v Hinch (2011) 243 CLR 506, 531-532 [21] (French CJ).
[28] Whether State legislation could permit this kind of hearing or would exceed recognised ‘constitutional limits’ was not explored in argument. Cf Assistant Commissioner Condon v Pompano (2013) 252 CLR 38, 47 [5] (French CJ).
[29] R v Golding (1980) 24 SASR 161.
Even if one allows for the assumption that a hearing of the kind proposed might be within power, the power ought not be exercised in the manner suggested. The Court should not exercise its inherent power so as to regulate its proceedings in a way that denies the appellant the fundamental common law right to participate, disregarding both open justice and procedural fairness principles.[30] The Court should not accede to a request that there be a secret hearing which precedes an open hearing, with the process necessarily occurring without the appellant’s knowledge or informed consent. It would be difficult to regard this kind of process as anything other than a ‘mere simulacrum of the process of doing justice’.[31]
[30] HT v The Queen (2019) 269 CLR 403, 434-435 [79]-[80] (Gordon J).
[31] Prince Alfred College Inc v ADC (2016) 258 CLR 134, 167 [105] (French CJ, Kiefel, Bell, Keane and Nettle JJ).
Whilst that means that a later Court hearing the application for permission to appeal against sentence is at some risk of comparing the sentences of the co‑offenders on an incomplete, if not false, premise, the public interest in securing co-operation and protecting an informant requires that confidentiality in the co‑offender’s assistance be preserved.
The Director’s application must be dismissed.