JB v Regina

1. [1]

   BATHURST CJ: On 10 September 2009 JB, who was a child at the relevant time, was found guilty by a jury of the murder of Edward Spowart. An appeal was unsuccessful: JB v R [2012] NSWCCA 12. An application to the High Court of Australia for special leave was also unsuccessful: JB v The Queen [2013] HCA Trans 28.

2. [2]

   Subsequently an application was made on behalf of JB pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction for murder. The application was based on material discovered subsequent to the exhaustion of the avenues of appeal and related to an important prosecution witness in the trial.

3. [3]

   On 20 November 2014, R A Hulme J determined that the whole of the proceedings should be referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW) pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act. It is convenient to set out the short reasons given by R A Hulme J for the referral:

4. [4]

   In JB v R (No 2) [2016] NSWCCA 67, JB’s conviction for murder was quashed and by majority a verdict of acquittal was entered.

5. [5]

   To protect the identity of the person referred to in the reasons of R A Hulme J as A107, the following suppression order was made:

6. [6]

   The order was first made on 24 March 2015 and confirmed on 16 September 2015. Further, although the order does not expressly state this, it was common ground that it was made pursuant to the provisions of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act).

7. [7]

   On 23 September 2016, the Director of Public Prosecutions referred Terrance William Thorpe, the Crown Prosecutor at the original trial, to the Legal Services Commissioner of NSW, requesting that the Commissioner consider the question of whether Mr Thorpe’s conduct in the matter amounted to professional misconduct or unsatisfactory professional conduct. On 29 November 2016, the Commissioner initiated a complaint in accordance with s 266(2) of the Legal Profession Uniform Law (NSW) (Uniform Law). On 16 January 2017, the Commissioner referred the complaint to the Council of the NSW Bar Association (the Bar Council) for investigation and determination in accordance with the Uniform Law. On 21 September 2017 the Bar Council resolved that certain allegations in the complaint be referred to the NSW Civil and Administrative Tribunal (NCAT) pursuant to s 300 of the Uniform Law.

8. [8]

   It is unnecessary to set out the particulars of the complaint in any detail, but it is alleged that A107 was a police informant during the investigation, and at the time of the prosecution in the proceedings. It was alleged that a significant aspect of the Crown case was the contention that JB made admissions at a police station on 26 April 2008, following his arrest. The admissions were said to have been made to A107 as a support person who was present because JB was a vulnerable person due to his age. The complaint alleged that prior to the trial, each of Mr Thorpe and JB’s solicitor, a Mr Kaufmann, were aware that A107 at the time he acted as a support person, was also a police informer and resolved not to disclose this fact to the defence counsel at, or prior, to the trial of JB or on appeal. In relation to Mr Kaufmann, it was also alleged that at the time he was acting for JB he was also acting for A107 in connection with fraud proceedings in which an affidavit of assistance was obtained for A107’s sentencing proceedings referring to the assistance A107 gave in conveying the admission said to be made to him by JB to the police.

9. [9]

   Mr Thorpe’s legal advisers complained that the use of certain material by the Bar Council to support its case contravened the suppression order and also the effect of the suppression order was to deny Mr Thorpe procedural fairness as he could not use the material for his case.

10. [10]

    As a result, the Bar Council filed a notice of motion seeking the following orders:

11. [11]

    The notice of motion was served on Mr Thorpe and the Law Society of NSW as being persons affected by the order. The Law Society has resolved to institute and prosecute disciplinary proceedings against Mr Kaufman in NCAT. Mr Thorpe and the Law Society were subsequently joined as first and third respondents to the motion, whilst the Commissioner of Police who had an interest in protecting the identity of A107, was joined as second respondent.

12. [12]

    Each of the parties filed written submissions. In addition to filing written submissions, the Commissioner of Police prepared draft short minutes of order indicating a variation to the suppression order to which he would be prepared to consent. That variation was in the following terms:

13. [13]

    Each of the Bar Council and the Law Society supported the making of an order in those terms. However, it was opposed by Mr Thorpe.

14. [14]

    Prior to dealing with Mr Thorpe’s submissions, it is convenient to set out the relevant provisions of the Suppression Act.

15. [15]

    Section 7 confers upon the Court the power to make suppression orders. It is in the following terms:

16. [16]

    The grounds for making such an order are set out in s 8, whilst the procedure for making an order is set out in s 9. These sections provide as follows:

17. [17]

    Sections 13 and 14 deal with reviews of orders and appeals against orders respectively. They are in the following terms:

Mr Thorpe’s submissions

1. [18]

   Mr Thorpe opposed the making of the orders on two grounds. First, the Bar Council had no standing to seek a review of the orders and second, the orders proposed would have the effect of depriving him of procedural fairness in the disciplinary proceedings.

2. [19]

   The submissions made by Mr Thorpe asserting that a denial of procedural fairness would arise from the making of the orders are obscure. In his written submissions, he referred to his general law application seeking orders that the application made by the Bar Council to NCAT be dismissed as incompetent under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). He also referred to paragraph 35 of the affidavit of Amber Leigh Sharp filed in the present proceedings, which in turn referred to a letter written by Mr Thorpe’s solicitor to the Bar Council, stating that the Bar Council will be in contempt if it continues to prosecute the proceedings in NCAT in reliance of material obtained in breach of the Court’s order. It was as a result of this assertion that the Bar Council brought the notice of motion, the subject of these proceedings.

3. [20]

   Mr Thorpe in his written submissions at paragraph 27 also referred to certain subparagraphs of his amended reply to the NCAT proceedings which he stated, “directly refer to and rely on the information and material which would nonetheless be the subject of suppression and non-publication despite the requested variation to the Order as propounded by the Council”. The submission did not condescend to identify the documents in question.

4. [21]

   However, the amended reply itself makes reference to the affidavit of assistance provided in connection with the sentencing of A107. In addition, senior counsel for Mr Thorpe identified what he described as the affidavit of “the officer in charge of the investigation”. Presumably he was referring to the affidavit of Detective Sergeant M, who was the officer in charge of the investigation into the murder of Mr Spowart. It should be noted that significant portions of each of these affidavits were reproduced in the decision of this Court in at [10] [12] and as counsel for the Commissioner of Police conceded, were in the public domain. Senior counsel for Mr Thorpe did not seek to demonstrate what further material was required.

5. [22]

   In these circumstances, I am not satisfied that any denial of procedural fairness to Mr Thorpe would result from the variation of the orders. However, if at any stage during the course of the disciplinary hearing Mr Thorpe or those advising him remain of the view that his case cannot be properly presented without use of the documents which remain the subject of the suppression order, it would be open to him to seek either a further variation of the order or a stay of the disciplinary proceedings.

6. [23]

   In addition, the written submissions at paragraph 28 state “[i]t is axiomatic that Mr Thorpe’s right to a fair hearing is infringed in circumstances where he is precluded from challenging the legality of the Council’s opinion under s 300 of LPUL [Uniform Law] by way of review, whether as a matter of competency in the Tribunal or by way of judicial review to the court”.

7. [24]

   This cryptic submission was not elaborated on at the hearing. As best as it can be ascertained, the proposition is that, because the Council would no longer be in contempt using the material, the objection foreshadowed by Mr Thorpe cannot now be taken. This does not mean that there is any denial of procedural fairness. Mr Thorpe has had an opportunity to be heard on whether the variation should be made. Making the order does not deny him procedural fairness.

8. [25]

   The second matter relied on by Mr Thorpe was the proposition that the Bar Council had no standing to seek a review. Senior counsel for Mr Thorpe in advancing this proposal stated that the only persons who could seek a review under s 13(2)(e) were persons who had an interest in the making of the order at the time it was made. He submitted that that proposition was supported by the fact that the provisions dealing with review did not contain a provision similar to s 14(5) dealing with fresh evidence on appeal.

9. [26]

   He also submitted that his contention was supported by the fact that the persons named in s 13(2)(e) as being entitled to be heard on a review, are described in the same terms as those named in s 9(2)(e) as being entitled to appear on the original application.

10. [27]

    In my opinion, there is no merit in this proposition. It is unnecessary to deal with the principles of statutory construction in any detail, save to say the starting point must be the text of the provisions read in the context of the statute as a whole: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [4], [47]; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23]-[24], [88]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 at [103].

11. [28]

    In the present case the structure of the legislation is clear. Section 13 provides for the review of a suppression order by the same court which made the order, while s 14 in its terms, deals with appeals from that court to the appellate court with leave.

12. [29]

    There is good reason for this. The need for a suppression order or the need for it to contain particular restrictions or exceptions, may vary over time. The present case provides a good example. Once that is understood, it is clear in my opinion that the persons referred to in s 13(2)(e) are persons who have an interest in the maintenance or continuation of the suppression order at the time the application for review is made. In the present case, this would include the Bar Council and the Law Society in the performance of their statutory functions under the Uniform Law.

13. [30]

    Further, s 13(2)(e) refers to persons who have a “sufficient interest in the question of whether the suppression order or non-publication order should have been made or should continue to operate” (emphasis added). Unsurprisingly, the words “should continue to operate” do not appear in s 9(2)(e).

14. [31]

    The fact that there is no express provision for further evidence does not support the construction contended for by Mr Thorpe. Section 13 does not prohibit the giving of evidence on a review and it is implicit in the review process that evidence could be led, if only to show why the review is necessary.

15. [32]

    For these reasons the Bar Council had standing to bring the application for review. The orders agreed to by the parties should be made to facilitate the performance by the Bar Council and Law Society of their functions in prosecuting a matter which if made out, involves serious breaches of the professional and ethical obligations of the barrister and solicitor concerned.

16. [33]

    I would make the following orders:

    1. (1)

       Order 6 made on 24 March 2015 in these proceedings is amended by adding at the end the following words:

    2. (2)

       “save that for the proper purposes of any disciplinary processes or proceedings under the Legal Profession Uniform Law (NSW) (and without limiting the generality of the foregoing prohibition on publication) it shall be permissible to disclose:

17. [34]

    HOEBEN CJ at CL: I agree with the Chief Justice and the order which he proposes.

18. [35]

    SIMPSON AJA: I agree with the orders proposed by the Chief Justice, for the reasons his Honour gives.