Medich v R (No 2)

1. [1]

   THE COURT: On 13 November 2015, the Court delivered judgment in Medich v R [2015] NSWCCA 281 in which it dismissed an appeal from a decision of Bellew J refusing to permanently stay criminal proceedings which have been brought against Ronald Edward Medich (the applicant) for the murder of Mr Michael McGurk.

2. [2]

   At the time that the appeal was heard, a suppression order was made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW), s 7 by Bellew J in respect of the application for the stay and any material relating to the application and in respect of his judgment. The order was subject to an exception for the disclosure of material by or to the parties and their legal representatives. The basis of the order was that it was necessary to prevent prejudice to the proper administration of justice: s 8(1)(a) of the Court Suppression and Non-publication Orders Act.

3. [3]

   The factual underpinning of the suppression order related to the applicant’s compulsory examination by the New South Wales Crime Commission (the Crime Commission) in respect of the matter with which he is presently charged. The reason for the making of the order at that time was so as to ensure the applicant had a fair trial and that the evidence that he had given to the Crime Commission was not divulged.

4. [4]

   A further order was made by this Court at the commencement of the hearing of the appeal and again upon delivery of the judgment of the Court on 13 November 2015. It is the latter order that is the subject of the present application before the Court.

5. [5]

   At the time the applicant gave evidence before the Crime Commission, a direction was made pursuant to s 13(9) of the New South Wales Crime Commission Act 1985 (NSW) (the Crime Commission Act) in the following terms:

6. [6]

   Subsequent orders were made pursuant to s 13(10) and s 13(11) of the Crime Commission Act making the transcripts of the hearings available to the legal practitioners representing the Crown.

7. [7]

   The Crown seeks an order that the suppression order of November 2013 be lifted either in respect of the whole of the judgment or alternatively in respect of the judgment subject to the continuation of the suppression order in respect of the schedules attached to the judgment. The Crown also posits the possibility of the order being continued in respect of certain passages in the judgment. As a further alternative, the Crown seeks an order lifting the suppression order but making a non-publication order.

Legislation

1. [8]

   The Court Suppression and Non-publication Orders Act is an Act to provide for the making of suppression and non-publication orders by courts. It provides relevantly as follows:

2. [9]

   Section 13 of the Crime Commission Act, at the time the order was made, was, relevantly, as follows:

Legal principles

1. [10]

   A suppression order may only be made where, relevantly, the order “is necessary” to achieve the required statutory objective, in this case, “to prevent prejudice to the proper administration of justice”.

2. [11]

   “Necessary” for the purposes of s 8 of the Court Suppression and Non-publication Orders Act is not to be given a restricted meaning. Whether an order is necessary will depend upon the factual circumstances said to require the order to be made: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52 at [8]. See also at [45]-[46].

3. [12]

   These provisions operate in the context of, and as an exception to, the principle of open justice, as to which Bathurst CJ and McColl JA observed in Rinehart v Welker [2011] NSWCA 403 at [32]:

4. [13]

   However, in an appropriate case, public interest in open justice:

Submissions

1. [14]

   The Crown’s application to lift the suppression order was made on two essential bases. First, it contended that there was no material presently before the Court such as would enable it to reasonably reach the conclusion that it was necessary to make an order suppressing the judgment pursuant to s 8(1). The Crown submitted that the Court in its judgment had extracted any relevant portions of the transcript in schedules to the judgment, such that there was nothing in the content of the judgment itself that would prejudice a fair trial of the applicant. In advancing that submission, the Crown did not accept that it remained necessary to suppress the material in the schedule, but stated that it would not oppose the continuation of the suppression orders in respect of the schedules, if that was sought by the applicant.

2. [15]

   Secondly, the Crown submitted that the judgment analyses the principles relevant to the grant of a stay, such as to be of important precedential value. The Crown informed the Court that there were applications pending in other matters in respect of which the principles articulated by the Court in its judgment are directly relevant, such that the legal representatives of parties in their pending matters ought to have access to the judgment.

3. [16]

   The applicant contended that the suppression order made in respect of the Court’s judgment and its orders is necessary to prevent prejudice to the proper administration of justice, and is otherwise necessary and in the public interest. He contended that the public interest significantly outweighs the public interest in open justice pursuant to s 8(a) and (e) of the Court Suppression and Non-publication Orders Act. He submitted that, in circumstances where a hearing is conducted and the taking of evidence by the Crime Commission is not susceptible to notions of open justice and publication, the public interest resides in maintaining the protections afforded to witnesses by statute.

4. [17]

   The applicant contended that the continued suppression of the orders of the Court and the judgment, including the schedules, is necessary, inter alia, in maintaining compliance with the Commissioner’s direction, given pursuant to s 13(9) of the Crime Commission Act, set out above at [5]. He contended that the Crown had not advanced any mechanism whereby the redaction of the judgment could be made that was properly compatible with the Commissioner’s directions.

5. [18]

   Allied to this submission was the further submission that unless the suppression order remained in force in respect of the whole of the judgment, including the schedules of evidence attached to it and the court orders, there was the possibility of the inadvertent disclosure of the applicant’s evidence or aspects of it to the prosecutors and its possible dissemination in the public domain.

6. [19]

   The applicant further contended that any redaction of the judgment by, for example, maintaining the order in respect of the schedules and in respect of certain passages in the judgment, extending beyond those that the Crown suggested might appropriately be subject to the continuation of the suppression order, would not prevent prejudice to his having a fair trial.

7. [20]

   Finally, the applicant submitted that current practice was sufficient to overcome any issue in relation to the use of the judgment in pending cases. In this regard, the applicant noted that, where a judgment subject to a suppression order is relevant to other proceedings, an application can be made to the court for the appropriate order making available the judgment by lifting the suppression order in the particular instance.

8. [21]

   In her written submissions, and further in oral argument on the appeal, counsel for the applicant did not argue that the judgment did not have precedential value such that in an appropriate case it ought to be available to legal representatives and to the court. Counsel for the applicant thus advanced a practical approach to the resolution of the matter, suggesting the redaction of certain portions of the judgment, including but extending beyond those suggested by the Crown. Counsel for the applicant then sought a non-publication order, qualified so as to enable the judgment so redacted to be available to legal practitioners and courts in appropriate cases.

9. [22]

   In response to this, the Crown maintained its preferred position that subject to relevant portions of the judgment being redacted, the judgment should not otherwise be restricted. The Crown also argued that, save for two matters, the additional passages of which the applicant sought redaction did not relate to the content of the applicant’s examination by the Crime Commission. The Crown also pointed out that it was open for the direction made by the Commissioner to be varied at any time. In fairness, senior counsel for the Crown did not argue strenuously against the proposal advanced by the applicant.

Consideration

1. [23]

   We have referred above, at [10]-[13], to the principles that govern the making and continuation of suppression orders under the Court Suppression and Non-publication Orders Act. There can be no doubt in this case that the schedules to the judgment ought to remain subject to such an order as should those portions of the judgment that identify evidence the applicant gave to the Crime Commission.

2. [24]

   There are however, two considerations, which to some extent are conflicting, as to whether an order ought to extend to the entire judgment or whether, subject to appropriate redactions, the judgment ought to be published. The principle of open justice, an aspect of which in this case is what the Court considers is the important precedential value of the judgment, point to the lifting of the suppression order in respect of the balance of the judgment.

3. [25]

   The competing consideration relates to the interaction of directions made by the Crime Commissioner under the Crime Commission Act and orders made by the Court under the Court Suppression and Non-publication Orders Act. We accept the submission advanced by the applicant that, given that he is given statutory protection under the former Act, and may be entitled to statutory protection under the latter, as has been considered appropriate in his case, the two Acts ought to be applied consistently in any given case. Importantly, any order of the court under the latter ought not be in conflict with a direction under the former.

4. [26]

   The applicant submitted that the effect of there being no publication order in place in respect of the judgment, including in its redacted form, would be that that portion of the Crime Commissioner’s direction that there should not be published any information that might enable the applicant to be identified as a person who has given evidence before the Crime Commission would be nullified. As the applicant pointed out, the very basis of his application for a stay was his appearance before the Crime Commission as a witness, so publication of the judgment would identify him as such.

5. [27]

   We consider that there is merit in the applicant’s argument. We also consider that an appropriate balance between these competing considerations can be achieved by making a limited publication order of the type suggested by the applicant. Courts can then be properly appraised of the principles that apply to the grant of a stay in circumstances such as these and the judgment can otherwise be available to legal representatives and courts for precedential purposes.

Orders

1. [28]

   Accordingly, we make the following orders:

   1. (1)

      (a) the Schedules to the reasons for judgment;

   2. (2)

      Other parts of the reasons for judgment in the appeal, and the Court’s orders, are not to be published or disclosed save for disclosure:

   3. (3)

      Nothing in order (2) operates to prohibit the Crown from disclosing the unredacted parts of the judgment to a court or to defence counsel in proceedings where the judgment is relevant, provided that any such disclosure would include disclosure of order (1).