John Fairfax Publication Pty Limited v MSK MMK MRK MAK & Regina

SPIGELMAN CJ : In my opinion, pursuant to the Court’s power under r77 of the Criminal Appeal Rules , there being no express rule dealing with the question of identifying separate issues, this Court should make an order in the form of order 2 in the application dated 31 October 2006, namely an order that the questions of the standing of the Applicant and the competency of the application dated 7 August 2006 be heard and determined separately and in advance of all other issues in the proceeding.

It is not appropriate at this stage to determine the question of the admissibility of expert evidence. There are two reasons for that. One is that if we were to launch into that matter then this bench would be part heard and it is by no means clear when the particular members of this bench could be reconstituted. Secondly, there actually have been no submissions before the Court in writing about the issue of admissibility. It does pose some difficult questions about expert evidence and there are no submissions seeking to justify the admissibility of Professor Finlay’s report, to which the report of Dr Chapel is a reply.

Accordingly, I believe that the preliminary questions should be limited to the jurisdictional and standing issues that have been raised in the submissions.

BASTEN JA: I agree.

HISLOP J: I agree.