R v Quintana (No. 3)

Application for Non-Publication Order

1. [1]

   Before me today is an application by the Crown seeking leave pursuant to the Trans-Tasman Proceedings Act 2010 for evidence from a particular critical witness to be taken by way of audio-visual link (“AVL”) from New Zealand.

2. [2]

   As part of the argument made on that application, the Crown has drawn to my attention that there has been discussion about a potential application for extradition of the witness.

3. [3]

   At this stage, the witness has not been told that she is likely to be made subject to an extradition application. A careful delineation and distinction between the witness's potential role as a witness in the trial before me, as opposed to any obligation and other processes that are related to criminal proceedings against her, has been drawn.

4. [4]

   The witness has indicated in her evidence today a willingness to assist the Court with evidence by AVL from New Zealand.

5. [5]

   I am overnight considering the Crown’s application (which has been opposed by the defendant for the reasons that have been articulated) for this witness to give AVL evidence at the trial, and thus not require extradition to facilitate that.

6. [6]

   To protect the position in respect of the application, the Crown has made an oral application for a non-publication order over any reference to the potential application for this witness to be extradited to New South Wales from New Zealand.

7. [7]

   The Crown has argued that the order is necessary to prevent prejudice to the proper administration of justice, that reference being to the currently indicated attitude of the witness that she will cooperate with this Court's processes by being prepared to give evidence by AVL from New Zealand. The Crown has submitted that position may be placed in jeopardy by any publication of her potential extradition and that the witness may “go to ground”, and thus render the application by the Crown currently before me for determination, of no use.

8. [8]

   Mr Evers, counsel for the accused, joins in the application for the non-publication order.

9. [9]

   It seems to me a responsible attitude by both counsel to ensure that this Court's processes are protected, until necessary the determination is reached on its merits. I have indicated that I will be reserving my decision on the Crown's application for the evidence of Ms Tairi to be given by audio-visual link so that I can consider the pros and cons of the arguments and to reflect for a longer period on the content of the evidence of Ms Tairi, and the way in which she gave it this afternoon. I have indicated I will give my judgment at 10 o'clock tomorrow.

10. [10]

    I am of the view that it is necessary to make an order preventing the publication of any reference to a potential extradition relating to Ms Tairi.

11. [11]

    Section 6 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”) requires me, in deciding whether to make a suppression or non-publication order, to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. This is an important safeguard and it is enshrined in the Act in very clear terms.

12. [12]

    Section 7 of the Act does however empower me to prohibit or restrict the publication or disclosure of certain information, provided that a ground under s 8 of the Act is made out.

13. [13]

    I am of the view that I should make the order sought on the ground that it is necessary to prevent prejudice to the proper administration of justice. That is an order pursuant to s 8 (1)(a) of the Act. The proper administration of justice in this instance is to protect the willingness that a potential witness has indicated to this Court on oath this afternoon that she is prepared to give evidence in the murder trial that was listed to commence today. I agree with the concern expressed by the Crown that if the witness is made aware, by a publication, that her extradition is being sought, her willingness to assist the Court may well change.

14. [14]

    I am required, pursuant to s 12 of the Act, to specify a time period for operation of the order.

15. [15]

    In deciding the period for which an order is to operate, s 12(2) of the Act requires that I ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

16. [16]

    Given that I have indicated that I will give judgment on the application seeking leave to call the evidence of Ms Tairi by AVL tomorrow morning at 10am, for the moment I will provide that the order is to operate until judgment is given on that application.

17. [17]

    Pursuant to s 8(1)(a) of the Court Suppression and Non Publication of Orders Act, any reference to the potential extradition of Ms Tairi is not to be published, on the grounds that the order is necessary to prevent prejudice to the proper administration of justice. This order remains in place until judgment is delivered on the Crown’s Notice of Motion filed 30 January 2020 seeking leave for Ms Tairi’s evidence at trial to be taken by AVL.