BRENNAN v. STATE OF NEW SOUTH WALES

HIS HONOUR : On 22 March 2006, I delivered judgment with respect to an application made on behalf of the Commissioner of Police on 15 March 2006. On 22 March 2006, I made orders in terms of paragraphs 84(a), (b) and (c) of the judgment. In this judgment I will deal with consequential orders revoking certain interim orders and record matters that have arisen since 22 March 2006.

On 6 March 2006, interim orders were made in terms of paragraphs 4, 5, 6, 7, 8 and 9 of the notice of motion dated 6 March 2006 and an interim order suppressing Exhibit C was made until further order.

Those interim orders have now been overtaken by the orders made by me on 22 March 2006 and accordingly, I make an order discharging them.

On 24 March 2006, and in compliance with order 84(c), Mr. Singleton of counsel on behalf of the Commissioner of Police produced an edited version of Exhibit C. That document was admitted and was marked as Exhibit D and, accordingly, becomes a public exhibit in the proceedings.

On the latter date, Mr. Singleton of counsel made application pursuant to the “slip rule” for an order amending Table I set out in the Schedule to Judgment of 22 March 2006 on the basis that Table I as set out in the Schedule to it omitted certain other references that had been included in Table I in the written submissions on behalf of the Commissioner dated 15 March 2006. I made an order accordingly. On 27 March 2006, Mr. Singleton also applied for a further order under the “slip rule” upon the basis that the reference to p.117 line 37 in Table III contained in the written submissions on behalf of the Commissioner had inadvertently been included in Table III and not in Table I in the submissions where it had been intended to be included. Accordingly, an order was made pursuant to the slip rule for the inclusion of the transcript reference p.117 line 37 to be included in Table I to the Schedule to Judgment dated 22 March 2006.

On 27 March 2006, on the application of the Commissioner of Police, I made interim orders in the following terms:- “1. The interim order made in these proceedings on 22 March 2006 by which the Court prohibited the disclosure of the matter described in Table III of the Schedule to the Judgment Brennan v. State of NSW [2006] NSWCCA 167 is continued until 5.00 pm on 29 March 2006 or, if the Commissioner of Police has by that time applied for leave to appeal against the decision of the Court to permit disclosure of the said matter, until such time as that application is determined and, if leave is granted, the appeal is determined. 2. The parties (including Nationwide News Pty. Limited and John Fairfax Limited) shall have liberty to apply to his Honour Justice Hall upon notice to the Crown Solicitor and by arrangement made under his Honour’s Associate.”

The interim orders referred to in paragraph [6] were made on an ex parte application on behalf of the Commissioner of Police. Mr. Singleton of counsel advised that Mr. Matlz of counsel did not wish to be heard on that application.

There is one other matter arising from my judgment of 22 March 2006 which I should clarify concerning the order made in paragraph 84(b) with respect to the documents in Exhibit A, Tab 15.

That matter concerns the basis for the order in paragraph 84(b). Whilst, as stated in paragraph 77 of the judgment of 22 March 2006, I am of the view that no non-publication order could be made with respect to the documents as admissible evidence, such an order may be made with respect to documents that were used in the proceedings and which were provisionally admitted as relevant pursuant to s.57 of the Evidence Act 1995 (NSW) .