BUSB v R

each witness was given a pseudonym;

there was to be no publication of their description or identity;

their evidence was given in a closed court and via video-link; and,

their evidence was given in such a way that the witnesses could not be seen by the applicant, but could be seen by all other persons permitted to be present. On 15 December 2010, these orders were remade by Solomon DCJ in advance of the second trial. Only the order preventing the applicant from seeing the faces of the witnesses is challenged in this Court. The order was referred to in the proceedings as a "screening order". On appeal, the issues were: (per Spigelman CJ, Allsop P, Hodgson JA, McClellan CJ at CL and Johnson J agreeing)

No constitutional issue arises in the present case. The existence of an implied power turns on what is necessary for the administration of justice. Were an implied power to have an impermissible effect on the institutional integrity of the court, then the test would not be satisfied and the power would not exist. [22] [88] [94] [95] [96] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51; R v Humby; Ex parte Rooney [1973] HCA 63; (1973) 129 CLR 231; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1; Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173; Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307; International Trust Finance Company Ltd v NSW Crime Commission [2009] HCA 49; (2009) 240 CLR 319, referred to.

In oral submissions, the applicant accepted that the District Court had an implied power to screen witnesses. The existence of an implied power in the District Court to make screening orders does not, therefore, fall for consideration on this appeal. [41] [89] [94] [95] [96] R v Stipendiary Magistrate of Southport, ex parte Gibson [1993] 2 Qd R 687; Jarvie v Magistrates' Court of Victoria [1995] 1 VR 84; R v Hughes [1986] 2 NZLR 129; Gee v Magistrates Court of South Australia [2005] SASC 315; (2004) 89 SASR 534; R v Lodhi [2006] NSWCCA 101; (2006) 65 NSWLR 573; R v Ngo [2003] NSWCCA 82; (2003) 57 NSWLR 55; R v Lodhi [2006] NSWSC 596; (2006) 163 A Crim R 508, referred to.

The applicant abandoned a ground of appeal that may have put in issue whether a power exercised for the purpose of protecting national security could be said to serve the administration of justice. [35] [89] [94] [95] [96]

The applicant sought to define the scope of an implied power to screen witnesses with reference to adverse affects on "full and effective cross-examination". This language is not apposite to delimiting the powers of the court. Such considerations give rise to questions of fact and degree that are more appropriately considered with respect to the exercise of the power, rather than the existence of the power. [41] [88] [94] [95] [96]

The judge was entitled to accept the evidence of the Director-General of Security with respect to the potential threat to national security posed by the applicant seeing the faces of ASIO witnesses. [62] [88] [94] [95] [96]

The trial judge did not impose any evidentiary burden on the accused by noting that no specific forensic disadvantage had been established. His Honour's statement to that effect was appropriately made in the context of balancing national security with the right to a fair trial. [68] [70] [91] [94] [95] [96] R v Alexandroaia (1995) 81 A Crim R 286, referred to.

The degree of impingement that will be permitted on the right to a fair trial by the making of a screening order will vary from case to case. In this case, the only identified benefit of the accused being permitted to see the ASIO witnesses is the possibility that his memory may be refreshed by their physical appearance. This is not of significance in this case. [80] [83] [92]-[93] [94] [95] [96]

The ASIO witnesses are to give corroborative rather than critical evidence. None of them fall within the category of witnesses discussed by the House of Lords in R v Davis . [80] [83] [92]-[93] [94] [95] [96] R v Murphy [1990] NI 306; R v Davis [2008] UKHL 36; [2008] 1 AC 1128, applied. 1. Leave to appeal granted. 2. Appeal dismissed.

SPIGELMAN CJ: This is an application under s 5F of the Criminal Appeal Act 1912 ("the Act") for leave to appeal from an order directing the manner in which certain witnesses will give evidence in the trial of the applicant. The matter has a long procedural history, which it is unnecessary to set out in full.

At a time when an issue had arisen as to this Court's jurisdiction under s 5F of the Act, the applicant for leave protected himself by instituting proceedings in the Court of Appeal invoking the Court's supervisory jurisdiction. Both matters were listed before the same bench. There is now no issue about the s 5F jurisdiction and this Court should exercise that jurisdiction. The same bench should dismiss the Court of Appeal proceedings with no order as to costs. (See s 17 of the Supreme Court Act 1970.)

As will appear below, the applicant raises an important issue about the powers of the District Court of New South Wales and seeks to challenge both the existence of those powers and their exercise in the particular case. Analogous issues have arisen in a number of different trials in recent years.

In the normal course, this Court would not grant leave under s 5F on the basis of an assertion that procedural orders about the manner in which evidence is to be given will undermine the fairness of the trial. That is a matter best dealt with in retrospect after the trial. However, there has already been a trial at which the relevant evidence was given. This application relates to the procedure being repeated in the retrial. The Court can assess the relevant facts on the basis of what happened at the first trial.

In these circumstances leave should be granted.

The appellant is to stand trial again on three counts: that he did shoot at a police officer, alternatively, with intent to murder him; with attempt to do grievous bodily harm to him; or, finally, maliciously with intent to prevent his own lawful apprehension.

On the basis of the submissions in this Court, the principal issue at trial will be whether, with respect to each alternative count, the applicant did "shoot at" the police officer. The applicant's case, as explained to the Court, is that while he discharged a firearm in order to avoid apprehension, he did not "shoot at" the police officer.

The Crown proposes to call a number of witnesses who are, or were, officers of the Australian Security Intelligence Organisation ("ASIO"). Two of them were eyewitnesses to the shooting and gave evidence in the first trial. Prior to that trial, orders were made with respect to the way in which the ASIO witnesses would give evidence.

These orders were that: 15 March 2011 - Typographical error - 'for' was omitted Amended paragraphs: 21