Kadir v The Queen; Grech v The Queen [2019] HCATrans 147 (1 August 2019)

Last Updated: 6 August 2019

[2019] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S160 of 2019

B e t w e e n -

ZEKI RAY KADIR

Appellant

and

THE QUEEN

Respondent

Office of the Registry
Sydney No S163 of 2019

B e t w e e n -

DONNA GRECH

Appellant

and

THE QUEEN

Respondent

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 1 AUGUST 2019, AT 9.31 AM

Copyright in the High Court of Australia

____________________

MR G. O’L. REYNOLDS, SC: In the first matter, your Honour, I appear for the appellant with my learned friend, MR D.P. HUME. (instructed by Michael Bowe)

MS K.I.H. LINDEMAN: May it please the Court, I appear for the appellant in the second matter. (instructed by Legal Aid NSW)

MR H. BAKER, SC: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (NSW))

HER HONOUR: Yes. I have had an opportunity to read the materials filed in support of these applications. Mr Baker, do I understand that the respondent takes a neutral stance?

MR BAKER: Yes, your Honour.

HER HONOUR: Yes. Yes, Mr Reynolds.

MR REYNOLDS: If your Honour pleases. I move on a summons which was filed on 25 July. As your Honour will appreciate, there are two matters and summonses.

HER HONOUR: Yes.

MR REYNOLDS: That is the one that concerns my client and I assume your Honour has a copy of that.

HER HONOUR: I do.

MR REYNOLDS: I also rely upon and I read the affidavit of Michael Bowe, sworn on 24 July 2019.

HER HONOUR: Yes.

MR REYNOLDS: That is the only evidential material.
HER HONOUR: Yes. Ms Lindeman, do I understand that you read the affidavit of Pip Hill, affirmed on 19 July 2019?

MS LINDEMAN: That is right, your Honour.

HER HONOUR: That is the only evidence on which you rely in the application?

MS LINDEMAN: In fact, I intended to hand up and tender an email chain that unfortunately was omitted. It was contemplated by my written submissions but was omitted from the affidavit.

HER HONOUR: Yes, I understand. I take it, Mr Baker, no objection?

MR BAKER: No objection.

MS LINDEMAN: In that case, your Honour, I might hand it up.

HER HONOUR: Yes, thank you.

MS LINDEMAN: Your Honour, the significance of that email chain is simply on page 2; towards the top of the page there is an email from the CCA registrar explaining the position in relation to the publication of the CCA decision –or I should say the restriction of that decision.

HER HONOUR: Yes, thank you. I take it you have seen this material?

MR REYNOLDS: I have, your Honour.

HER HONOUR: Yes, Mr Reynolds.

MR REYNOLDS: Your Honour, we have prepared some short minutes of order which ‑ ‑ ‑

HER HONOUR: Well, Mr Reynolds, before we get to short minutes of order there is a high threshold for the making of an order of this kind. The only evidence before me in your application is the opinion of your solicitor that – just let me turn it up – it is necessary to restrict disclosure of information tending to reveal the appellant’s identity because there is a risk that a juror may view material associated with the present proceedings which may prejudice the appellant’s prospects of a fair trial ‑ ‑ ‑

MR REYNOLDS: Yes.

HER HONOUR: ‑ ‑ ‑ and I think an opinion to similar effect in the related proceeding S163 is before the Court, but otherwise no evidence. Mr Reynolds, it is not self‑evident that there is a material risk to the fair trial of the appellant were the appellant’s name to be published.

MR REYNOLDS: Your Honour, could I address that?

HER HONOUR: By all means.

MR REYNOLDS: Your Honour is aware of the nature of the issues raised on appeal.

HER HONOUR: Yes, I am.

MR REYNOLDS: Most of the submissions which – and the appellants have already been filed – are directed towards an analysis of this evidence which is, or was found to be inadmissible or rejected as a matter of discretion by the primary judge.

HER HONOUR: Yes.

MR REYNOLDS: Now, the analysis of this sort of Bunning v Cross type issue obviously involves an assessment of the particular evidence and whether it is, first of all, important in the case but perhaps, more particularly for relevant purposes, whether it is probative. So the submissions in writing and orally and also inevitably the judgment will direct themselves to what is very close to the same issue or issues as a jury will need to consider in due course if the appeal is dismissed.

So if these orders are not made it raises the spectre of material being available and easily discoverable by the use of a search engine where no lesser body of individuals than the High Court of Australia have looked at the very evidence which – or very close to the evidence which the jury is going to look at and evaluated whether it proves the elements of the offence. That same inquiry, or very similar inquiry, is a matter that the jury is going to have to embark upon.

So that if this material is available and easily procurable within the community there is a risk that there will be some flow‑on discussion of that material of the reasoning, some communication of it, some media publicity in relation to the particular individuals and what your Honours on this Court have said about the probative value about particular evidence, with the result that there is at least a real risk that the jury’s assessment of those issues will be, or may possibly be, to some extent affected by that material.

HER HONOUR: So just to be clear, Mr Reynolds, it is not so much that the jury may come to be aware of some material the subject of the voir dire hearing before Judge Buscombe that it is common ground is inadmissible but rather that the jury might be influenced by a wrong understanding that this Court had assessed, as it were, the probative value of the evidence to be tendered at the trial and given it a tick. Is that the submission?

MR REYNOLDS: Well, that is part of it, your Honour.

HER HONOUR: I mean, it is just, Mr Reynolds, that the issues raised by the appeal are concerned with the correctness or otherwise of the Court of Criminal Appeal’s determination that in certain respects Judge Buscombe erred in determining to exclude material under section 138 of the Evidence Act, is it not?

MR REYNOLDS: Yes, and one of the key things there is to focus on ‑ this is a mandatory requirement under the section, to look at the probative value of really all of the evidence under the three headings that we are talking about in this case and, of course, there is the possibility that some of this evidence may be rejected at trial on other grounds when it is tendered. So there is also the possibility of that extra material being referred to in submissions, oral and in writing, and also in the judgment, which will not be before the jury, so there is that extra possibility of, if you like, contamination of their consideration of the issues.

So, obviously, if the appeal is dismissed what everyone is trying to bring about is that the jury proceed to hear the case and determine the case only on the evidence before them, and ‑ ‑ ‑

HER HONOUR: As they will be instructed by the trial judge.

MR REYNOLDS: They will be.

HER HONOUR: Mr Reynolds, the prejudice that you apprehend is that a prospective juror – that is, any person on the jury roll for the area of Penrith, is it, where the trial is to be held?

MR BAKER: Yes, your Honour.

MR REYNOLDS: I think around that area, your Honour.

HER HONOUR: Yes. So any person on the jury roll in Penrith might read some account of the argument before this Court concerning the rightness or otherwise of the decision to exclude certain evidence in a case involving the allegations that this case involves and that that person, perhaps a matter of months, even weeks only, later finds him or herself empanelled to try such an allegation. In that case, whether the person knows your client’s name would seem, with respect, to be hardly to the point. The danger that you fear, that is, the danger that the prospective juror would reason – I think I read in the newspaper that the High Court said this was probative or important evidence, something of that kind ‑ how, if that is a risk, do you protect against it by anonymising the appellant?

MR REYNOLDS: Well, because if the appellant’s name is anonymised then that makes it far less likely that there will be a connection made in the mind of the relevant juror between this case and any material which comes directly or indirectly to their attention.

HER HONOUR: That would assume that in ordinary human experience there are a number of cases of this character to be expected to be before the court.

MR REYNOLDS: Not necessarily, your Honour, but if there is not that connection then if the relevant prospective juror or actual juror were to think about the matter he or she might well think that this is something which has been endemic in the industry, yes. I think there has been some publicity to that effect, that this is, for want of a better expression, a problem in the greyhound industry and would not necessarily connect the discussion in the media or otherwise about this case with these particular individuals moreover where ‑ your Honour has already touched on this – the judge at trial is making some directions, the sort of directions that might be made might include a statement such as – and it would be particularly apposite in this case – you may have heard some discussion or read things elsewhere about this kind of thing and you have no basis for thinking that the discussion that you have heard has got anything to do with this case so you must put that completely to one side.

Now, if the media discussions, if the material on, for example, the High Court website, the material in academic discussion or what have you of this case actually refers to the individual’s names, then that makes it very, very difficult from my client’s point of view to have the judge effectively protect his interests in a fair trial because if that material is out there ‑ that is, on this topic of greyhound baiting – and is actually connected with his name, then there has to be some prospect that the discussions which have taken place may have some effect on the juror’s directly or indirectly in this case.

HER HONOUR: You accept that from the moment the jury is empanelled the protection of the proper administration of justice is in the hands of the trial judge, so that the concern which informs this application assumes that a person who has not been selected as a juror but is a prospective juror might read material in the media and absorb from that not only the nature of the allegation but recall the name of the person the subject of the allegation and bring that to bear in a way that might prejudice the fair trial, notwithstanding the trial judge’s directions standardly given, precluding jurors from accessing the internet in order to inform themselves of material that might relate to the accused.

MR REYNOLDS: Your Honour, it is not just read, it is also things like there may well be – there has been a lot of publicity already, as your Honour probably appreciates ‑ ‑ ‑

HER HONOUR: There is no evidence before me of that at all.

MR REYNOLDS: Well, I do not think there will be any issue about that, your Honour. If necessary, we can put that before you. Let me put it to you this way. It is the sort of case that might well lead to a lot of media publicity, for example, on the hearing of the appeal, with the sort of footage that your Honour has seen from time to time of the clients, the parties, being photographed, for example, coming into the High Court to watch their case and not, as I say, just reading that material but seeing it, and there may be identification by a potential juror of the individual who has been, they will think, involved in this activity, and there will be a discussion by the journalist on the television which will put the case in a particular way, perhaps in a rather extravagant way, we do not know. All of these things can contribute to a potential poisoning of the well of material even before the jury is empanelled.

The orders which we seek – can I hand a copy to your Honour ‑ ‑ ‑

HER HONOUR: Yes, by all means.

MR REYNOLDS: ‑ ‑ ‑ are slightly different from the summons in two respects. First, in the last line your Honour will see the words “until the empanelling of a jury”.

HER HONOUR: Yes.

MR REYNOLDS: So that takes up, to some extent at least, the issue that your Honour raised with me, that is – and this is a matter your Honour will see from the submissions which Justice Gageler adverted to in his judgment in the Obeid Case, that is the first thing. The second thing is that there has to be under the relevant provision of the Judiciary Act – and we have pointed this out in our submissions – a specification – this is in paragraph 13 of our submissions, picking up section 77RF – the order must specify the ground on which the order is made.

HER HONOUR: Yes.

MR REYNOLDS: So if I could just, as it were, parenthetically mention those two matters. Now, we have summarised in our submissions most of the key paragraphs in Justice Gageler’s judgment in the Obeid matter.

HER HONOUR: In the Obeid Case I think his Honour’s analysis was heavily dependent upon the desirability of not undermining the efficacy of orders that had been made below. Now, that is not a matter that concerns me on this application.

MR REYNOLDS: No, but it is really just a procedural glitch, we would suggest, that those orders have not been made below.

HER HONOUR: Was an order sought below under the Court Suppression and Non‑publication Orders Act (NSW)?

MR REYNOLDS: I do not believe so. No, your Honour, but again that ‑ ‑ ‑

HER HONOUR: Well, it is hardly just, as it were, a technical glitch.

MR REYNOLDS: Well, your Honour, not in that respect but when your Honour sees the email correspondence it was the clear intention of the Court of Criminal Appeal to safeguard the integrity of the trial by restricting the access to the judgment, although they, I accept, could have gone about it with a greater degree of formality and could have ‑ ‑ ‑

HER HONOUR: Why would I infer other than that a person within the administration of the Court of Criminal Appeal of New South Wales has placed information concerning the proceeding in a restricted area? I certainly – there is nothing before me to suggest that any judge of the Supreme Court of New South Wales has turned his or her mind to the test of necessity which I think is required under the New South Wales Act much as it is under the Judiciary Act.

MR REYNOLDS: Yes, whatever that means.

HER HONOUR: Mr Reynolds, you accept, I think, that necessity, in this context, is as – I withdraw that. Do you accept that necessity in this context is to be understood in the way this Court analysed Hogan v Australian Crime Commission?

MR REYNOLDS: Your Honour, I do not have that case to hand, but could I – if your Honour will please forgive me, before I forget ‑ ‑ ‑

HER HONOUR: Yes.

MR REYNOLDS: ‑ ‑ ‑ the email correspondence on page 2 does advert – does use the expression that the court put the judgment in the restricted area, which I assume to mean that is talking about judges rather than administrative functionaries. Anyway, that is the only ‑ ‑ ‑

HER HONOUR: In any event, Mr Reynolds, whatever administrative arrangements are made with respect to the court file in the Court of Criminal Appeal no order restricting disclosure of the identity of the appellant has been made by that court.

MR REYNOLDS: Although it is clear that the court, we submit on the material, has thought that it was appropriate that the judgment be placed in the restricted area of the court’s case law.

HER HONOUR: An email communication from the registrar of the court in the terms that appear on page 2 of the material handed up to me by Ms Lindeman seems to me to fall well short of that.

MR REYNOLDS: Your Honour, if we can return perhaps to the approach taken by Justice Gageler.

HER HONOUR: Yes.

MR REYNOLDS: I would suggest that even if – I withdraw that – that it is not simply a matter of continuing on a regime instituted by the lower court. If that regime was not appropriate and was not thought by Justice Gageler to be appropriate he would have said so and said that in his opinion there was no need for any restriction and declined to make the order. Now, he has ‑ ‑ ‑

HER HONOUR: That would be somewhat inconsistent, would it not, with his Honour’s observation at paragraph 8 of the judgment which is reported (2016) 90 ALJR 452 at 453 that:

Ordinarily, an application for such a non‑publication order should be made to the court from whose judgment the application . . . is brought . . . That court will ordinarily be better placed than this Court . . . to consider the merits of the application –

MR REYNOLDS: That is certainly right, your Honour, and it was not made by those who were briefed in the matter below and, for what it is worth, it may well be the case that that was an error but we are where we are and counsel now appearing are simply trying to do the best they can to ensure that their client’s interests are protected.

We submit that if your Honour does not make the orders which we have referred to in the short minutes that it is distinctly on the cards that there will be a high level of publicity about this case naming my client and the other accused in a way where there is a possibility that that may affect the administration of justice at the trial and that stems primarily from the nature of the issues which are going to be agitated on the hearing of this appeal in submissions and in the judgment and with the similarity of those issues with those which may come, or will come, before a jury also together with the possibility that there will be material referred to in those discussions and those written documents which may even be excluded by the trial judge and, for those reasons, we submit that your Honour should make the orders which we seek.

HER HONOUR: Mr Reynolds, how does this differ from a case in which an order is made prior to – in which there is an order for the examination of a witness prior to trial, something of that kind? I mean, if one goes back a little to committal hearings, our system for many, many years accepted that the allegations in an indictment would have been the subject of a committal hearing and publicity associated with the committal hearing, but the assumption upon which the administration of criminal justice has long proceeded is that the trial judge’s powers to direct the jury with respect to publicity or material on the internet address any risk of prejudice.

MR REYNOLDS: Well, your Honour, that is only part of the regime. The other part of the regime are the principles of sub judice contempt which cut in, as I recall, from the point of charge. Now, that law takes effect from that time and if there is any material which is published anywhere which – and it is a very low test, as your Honour appreciates – has the tendency to interfere with the due administration of justice then that acts as a constraint, for example, on the media discussion of these issues.

HER HONOUR: The fair reporting of evidence adduced at committal proceedings did not invoke consideration of sub judice contempt.

MR REYNOLDS: Well, your Honour raises a point similar to the one that I am about to raise, and that is that there may be reporting of the evidence in this case which has that tendency but which is not a contempt only because there is that rider on the law of sub judice contempt about the discussion of matters of public interest and including probably fair reports of proceedings, but that is one of the reasons, we submit, that orders of this kind need to be made in a case like this, is because otherwise the media – if we just take that example – would invoke the principle that we have just been discussing and say they are entitled, notwithstanding the risk to the administrative of justice, nonetheless to publish the material because they will say they are reporting on argument and submissions and judgments in this Court.

The point I am trying to make is that does not deny that there is the relevant tendency and that is one of the reasons why we submit that an order is necessary in this case. At any rate, I think I am starting to ‑ ‑ ‑

HER HONOUR: Just one further matter. Your proposed form of order is in terms that has a terminus, namely, the empanelling of the jury in District Court proceedings. Of course, on another view, depending on the outcome of the appeal, as I understand it the likely result would be that the Director exercising his power would direct no further proceedings on the indictment so it would be – were an order to be made surely it should be until the empanelling of a jury in District Court proceedings as numbered or until the Director determines not to proceed further on the indictment. Is there any problem with that?

MR REYNOLDS: Yes. We would suggest that implicitly these orders are (a) subject to any further order of this Court, first of all, and (b) I think there is an implicit liberty to apply, and given both of those matters we did not include that in the short minutes of order because if the eventuality your Honour has just touched on occurred then the matter could be dealt with in the way I have mentioned, namely, that the ‑ ‑ ‑

HER HONOUR: My recollection is the court is to ensure that the order operates for no longer than is reasonably necessary. In those circumstances, I would not be inclined to make an order upon some understanding of the likelihood that the matter would be brought back before the court, depending on the outcome of the appeal or something of that sort; I would want to see a clear terminus consistently with the scheme.

MR REYNOLDS: Well, one possibility obviously is that if the appeal was allowed the court might well ask the Director whether the Director is intending to proceed in the matter and if the Director is not then that matter could be dealt with at that point. If the appeal is dismissed then we are going to be looking at the empanelling of a jury.

HER HONOUR: Mr Reynolds, I am not attracted to the idea of an open‑ended order with a possibility that the Full Court might turn its attention to bringing it to a conclusion at the end of argument on the hearing of the appeal. That just seems to me to be a rather uncertain course. Is there any difficulty were I to make the order with framing it as I have suggested?

MR REYNOLDS: I am sorry, your Honour, your Honour’s wording was ‑ ‑ ‑

HER HONOUR: Until the empanelling of a jury in District Court proceedings 2015188045 or until the Director of Public Prosecutions directs no further proceedings on the indictment dated 28 April 2016.

MR REYNOLDS: Your Honour, we do not have a problem with it.

HER HONOUR: All right. Thank you, Mr Reynolds. Yes, Ms Lindeman.

MS LINDEMAN: Your Honour, only a few short points. To begin with, the form of the order perhaps, where we left off, my client would be content with the form of order proposed by the co‑appellant, if I can put it that way ‑ ‑ ‑

HER HONOUR: Yes.

MS LINDEMAN: ‑ ‑ ‑ however, we would suggest that rather than the wording your Honour has just suggested language in terms such as “or the earlier finalisation of the charges on the indictment” be adopted. The reason being that it may be the case that a plea is entered and so there is a possibility that the indictment would be resolved other than by the Director declining to proceed or the empanelment of a jury.

HER HONOUR: Yes, I see the point, Ms Lindeman. I would still wish to – the earlier finalisation of the charges in the indictment addresses the matter that properly you raise, but it leaves a degree of uncertainty about what constitutes the finalisation so were it to be until the empanelling of the jury et cetera or earlier finalisation of the charges in the indictment or until the Director directs no further proceedings.

MS LINDEMAN: We would be content with that, your Honour.

HER HONOUR: Yes, thank you for that ‑ ‑ ‑

MS LINDEMAN: The only other matter is in relation to the orders that are in my client’s proceedings; obviously the District Court proceeding number would be different and those formal matters would need to be dealt with.

HER HONOUR: Yes.

MS LINDEMAN: Your Honour, in terms of the substance, we would embrace the submissions of Mr Reynolds and I am not sure I can put the point much higher. The only additional matter I would raise is that your Honour raised the fair reporting of committal proceedings. In my respectful submission, these proceedings differ, are distinguishable from that circumstance, due to the Four Corners expose, if I can put it that way, that was published or aired in January 2015. I accept at the outset that there is not any evidence before your Honour of that program going to air. All I can say in that regard is that the airing of the report is dealt with in the judgments below and so I do not think there is any controversy at least that the episode aired.

The reason I raise that matter is that we do not suggest there is any prejudice to the risk of a fair trial arising from that Four Corners episode at present, it having gone to air some five years ago, or at least it will have been five years by the time this matter goes to trial. However, in circumstances where a judgment of this Court is publicised shortly before the matter returns to trial it may be that the media attention surrounding the Four Corners report is revived, if I can put it that way, shortly before the matter goes to trial, which is perhaps of a different nature to fair reporting of committal proceedings given the footage associated with that program and I appreciate that your Honour does not have before you the transcript so perhaps that is the highest I can put the submission.

HER HONOUR: Again, Ms Lindeman, I just have some difficulty with the logic of the concern. If for some reason connected with the arguments in this Court as to the correctness of the Court of Criminal Appeal’s analysis there is revived some memory of a Four Corners television program, it is stretching things, is it not, to think that your client’s name would be material to the thinking of the person who having followed that account in the media then finds him or herself empanelled to serve on a jury, listens to the Crown Prosecutor’s opening and thinks, this is the very matter that I read about three months ago. I just have difficulty seeing the anonymisation of the name as bearing particularly relevantly on the risk. Surely the system has to proceed on an understanding that the trial judge’s directions that the matter is to be determined on the evidence before the jury and nothing else is effective.

MS LINDEMAN: I accept that entirely, your Honour. I think there are only two things I can say in response. Firstly, my client was – and, again, I apologise and we may need to put on evidence to this effect – my client was not named in the Four Corners report and so the naming of my client in these proceedings would draw together an association of her and the Four Corners reporting in a way that presently, or previously, has not been the case.

HER HONOUR: Ms Lindeman, if you wish the matter stood over in order to adduce some further evidence I would be open to such an application plainly, but I am prepared to deal with the application upon acceptance that your client was not named. The point remains – and I understand Mr Reynolds’ submission that the issue of live baiting has been
one that has stimulated considerable publicity – but the concern informing both these applications is of the link being made between material aired on the hearing of the appeal and the trial and if that is a real concern then whether the accused are named or not seems to me to be somewhat tangential.

MS LINDEMAN: I understand, your Honour. I think all that I can say in response to that is that the proposal to anonymise the names is simply a compromise between the need for open justice, as is contemplated by the Judiciary Act, and our client’s interest in a fair trial. We appreciate that it is perhaps an unhappy compromise in the sense that it perhaps does not deal as fulsomely as possible with the concern we raised with respect to prospective jurors but we thought at least going so far as anonymisation would give some protection or some necessary protection, I should say, to my client’s right to a fair trial while still allowing for the publication of the substance of the material before this Court in which there is a public interest and must be taken into account by this Court in making an order. I think that is the highest I can put the submission. May it please the Court.

HER HONOUR: Thank you, Ms Lindeman. Mr Baker, do you wish to be heard?

MR BAKER: Thank you. Your Honour, if I can quickly say the Crown’s position is, as I provided at the outset, a neutral position. Perhaps the best way to explain why is to really refer to Ms Lindeman’s last point, which is that this relates to an interlocutory judgment which was partly successful and there will be reference to the recordings that were excluded that will understandably be part of the hearing of the appeal. In those circumstances, however, the Crown does point to the fact that, as your Honour has already identified, there is a low risk it is potentially whether a prospective jury in the Penrith catchment would at some point over the next seven months become exposed to the content of that and as an identification of that have recollection of the name of either appellant and that by anonymising by the use of their own initials the low risk of that prejudice is, at least to some extent, mitigated.

On the other side of that, there is the question of whether or not by simply using their own initials the principles of open justice are somewhat, although compromised to some extent, the real content of the issues within the appeal will still be able to be open to the public.

HER HONOUR: Thank you, Mr Baker.

MR BAKER: Thank you.

MR REYNOLDS: Your Honour, only one matter in reply and that is that we cannot assume that this case is going to be heard by jurors within the Penrith catchment, as it was referred to.

HER HONOUR: Yes.

MS LINDEMAN: Nothing further, your Honour.

HER HONOUR: The appellants are jointly charged in an indictment signed on 28 April 2016 with certain offences. They were arraigned on that indictment in the District Court of New South Wales before Judge Buscombe and each entered pleas of not guilty.

On 28 June 2017, prior to the empanelment of the jury, Judge Buscombe granted the appellants’ application to exclude certain evidence. That determination was made following a voir dire hearing. The Director of Public Prosecutions (“the Director”) appealed to the Court of Criminal Appeal of the Supreme Court of New South Wales against Judge Buscombe’s orders.^[1]

On 30 November 2017, the appeal was allowed in part.

On 17 May 2019, this Court granted the appellants special leave to appeal from the orders of the Court of Criminal Appeal. Subsequent to that grant, on 31 May 2019, the appellants’ trial which had been listed for hearing in June 2019 was vacated and the matter was relisted for trial commencing on 2 March 2020 in the District Court at Penrith. The expectation is that the trial will proceed with a jury.

Each appellant now applies for orders under s 77RE(1) of the Judiciary Act 1903 (Cth) (“the Act”) restricting the publication of information tending to reveal their identities in these proceedings. The Court may prohibit or restrict the publication or other disclosure of information tending to reveal the identity of any party to a proceeding before the Court on one or more of the grounds set out in s 77RF of the Act. The orders are sought under s 77RF(1)(a) on the ground that the order is necessary to prevent prejudice to the proper administration of justice.

The procedure for making an order is provided by s 77RG. The Court may make the order on its own initiative or on the application of persons, including a party to the proceeding. Subsection 77RG(2) confers an entitlement to appear and be heard on an application for a non‑publication order on persons, including “a news publisher” and any other person who, in the Court’s opinion, has a sufficient interest in the question of whether an order should be made.

The respondent appears and neither consents nor opposes the making of the orders that are sought. No person other than the parties and the respondent appears to have a sufficient interest in the question to be entitled to appear and be heard, save for any news publisher.

The appellants’ application was listed for hearing entitled “Applications for suppression orders” in each proceeding in a notice published on Wednesday, 31 July 2019. No news publisher has appeared and sought to be heard.

Each summons seeks an order that publication of information tending to reveal the identity of the appellant in the proceedings be restricted by identifying the appellant by nominated initials in any publicly available document in the proceedings and by the redaction of any information tending to reveal the identity of the appellant in any publicly available document relating to the proceedings until the empanelling of a jury in the District Court proceedings or the finalisation of the proceedings on the indictment dated 28 April 2016 or until the Director directs that no further proceedings be taken against a person on the allegations contained in the indictment dated 28 April 2016.

In deciding whether to make a suppression or non‑publication order, the Court is required to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.^[2]

Consistently with recognition of that primary objective, a suppression or non‑publication order must specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which it is made.^[3]

In deciding the period for which an order is to operate, the Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.^[4]

The appellants contend that the making of the orders sought is necessary to prevent prejudice to the proper administration of justice by reason that there exists a risk that if information revealing their identity is published, prospective jurors might gain access to information, including evidence given on the voir dire that it is accepted is inadmissible on the trial of the allegations in the indictment, or that a prospective juror might reason that this Court had lent its imprimatur to the evidence which the Court of Criminal Appeal determined Judge Buscombe erred in excluding, in the event that the appellants’ appeal is dismissed.

The test imposed by s 77RF(1)(a) is a stringent one. The making of the order must be necessary to prevent prejudice to the proper administration of justice, which is correctly identified here as the fair trial of the appellants. It does not suffice that the making of the order appears to the Court to be convenient, reasonable or sensible.^[5]

The only evidence in proceedings S160 of 2019 is the opinion of the appellant’s solicitor that the making of the order is necessary because “there is a risk that a juror may view material associated with the present proceedings which may prejudice the appellant’s prospects of a fair trial before a jury”. The only evidence in proceedings S163 of 2019 is the opinion of that appellant’s solicitor in similar terms.

The asserted risk to the fair trial of each appellant which might be relieved by an order restricting publication of their names is not self‑evident. It proceeds upon the suggestion that a prospective juror being a person on the jury roll for the Penrith district might read an account of the argument in this Court and learn, either from that account or perhaps from this Court’s reasons, of material excluded on the voir dire application, or that the prospective juror might misapprehend that in determining whether the Court of Criminal Appeal erred, this Court was expressing a view about the cogency of evidence that may be adduced at the trial.

In support of the latter contention, my attention is drawn to the factors to which a court is directed to have attention under s 138 of the Evidence Act 1995 (NSW) while undertaking the determination of admissibility, which include consideration of probative value. Nonetheless, it remains, in my view, a long bow to consider a prospective juror might take from any account of an argument respecting the application of s 138 to the facts of the appellants’ case that this Court was expressing a view which the juror should, contrary to any direction of the trial judge, take into account in determining whether the prosecution has satisfied the burden of proof at a subsequent trial.

The present applications are to be contrasted with the application considered in Obeid v The Queen (No 2).^[6] In making the non‑publication order in that case Gageler J addressed the concern to preserve the efficacy of existing orders made in the court below. No such orders have been made by the District Court or the Court of Criminal Appeal in these proceedings.

I have been referred to material which supports the account in the submissions filed in proceedings S163, namely, that sometime between 30 November 2017 and 8 July 2019, access to the Court of Criminal Appeal’s decision was restricted. It appears that following an inquiry of the Registrar of that court made by a solicitor in the employ of the Director, the Registrar explained that:

In this matter there was no specific court order restricting publication. The court simply put it in the restricted area of NSW Caselaw, in light of the nature of the judgment.

I am invited to infer from that that access to the decision was restricted to protect the efficacy of the pending trial. It is not apparent that any administrative arrangement made with respect to access to the judgment or file in the registry of the Court of Criminal Appeal bears relevantly on my determination. It is not suggested that any application has been made to that court, nor any consideration given by a judge of that court, to the making of a non‑publication order under the Court Suppression and Non‑publication Orders Act 2010 (NSW).

In Dupas v The Queen this Court observed that it is neither remarkable nor singular that some trials are attended by extensive pre‑trial publicity, including sometimes with reference to heinous acts.^[7] Dupas v The Queen recognises the availability to the trial judge of a range of mechanisms to relieve against any prejudice thought to be occasioned by publicity.

Nothing in the material filed in support of the applications satisfies me that the orders sought are necessary to prevent prejudice to the proper administration of justice. It follows that for these reasons there will be the following orders: in each proceeding the summons is dismissed.

Would you adjourn the Court.

AT 10.35 AM THE MATTERS WERE CONCLUDED

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^[1] Criminal Appeal Act 1912 (NSW), s 5F(3A).
^[2] Judiciary Act 1903 (Cth), s 77RD.
^[3] Judiciary Act 1903 (Cth), s 77RG(5).
^[4] Judiciary Act 1903 (Cth), s 77RI(2).
^[5] Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at 664 [30]- [31].
^[6] Obeid v The Queen (No 2) (2016) 90 ALJR 452; 329 ALR 379.
^[7] [2010] HCA 20; (2010) 241 CLR 237 at 250 [36].