Nagi v Director of Public Prosecutions (NSW) (No 2) - [2009] NSWCCA 198

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
NAGI v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) (NO 2) [2009] NSWCCA 198

FILE NUMBER(S):
2008/13633

HEARING DATE(S):
24 July 2009

JUDGMENT DATE:
4 August 2009

PARTIES:
Hassan Nagi (Appellant)
Director of Public Prosecutions (NSW) (Respondent)

JUDGMENT OF:
Basten JA Hulme J Johnson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/13633

LOWER COURT JUDICIAL OFFICER:
Bennett DCJ

LOWER COURT DATE OF DECISION:
3 June 2009

COUNSEL:
C Steirn SC/M Johnston (Appellant)
M Grogan (Respondent)

SOLICITORS:
Michael Ayache (VA Lawyers) (Appellant)
S Kavanagh (Respondent)

CATCHWORDS:
PRACTICE & PROCEDURE – non-publication order – appeal against refusal of non-publication order dismissed – foreshadowed application for special leave to appeal – stay of orders dismissing appeal

LEGISLATION CITED:

CASES CITED:
[Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [No 1]] [1986] HCA 84; 161 CLR 681

TEXTS CITED:

DECISION:
(1) Stay the orders made in the principal judgment until the later of the following times:[ ][ ](a) if no application for special leave to appeal to the High Court is filed and served (notwithstanding r 41.03.1 of the High Court Rules) within 28 days of pronouncement of this judgment, upon the expiration of that period;[ ] (b) if an application is filed and served in accordance with (a), the day on which the application is disposed of by the High Court.[ ][ ](2) Whilst the orders in the principal judgment are stayed, publication of the principal judgment and orders is prohibited subject to the following exceptions:[ ][ ](a) such publication as is necessary for the further administration of justice in relation to the sentencing proceedings, the proceedings in this Court and any proceedings commenced in the High Court of Australia;[ ](b) such other publication as may be made by or on behalf of the applicant, with his prior written consent.[ ][ ](3) Grant liberty to the Director of Public Prosecutions and the applicant to apply to a judge of this Court for a variation of orders (1) and (2) above, on three days notice.[ ][ ](4) Direct that any publication of the principal judgment and orders permitted under these orders, during the period for which the principal orders are stayed, be accompanied by a copy of this judgment.[ ][ ](5) Note that none of the foregoing ancillary orders prevents or limits the publication of this judgment and these orders.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/13633
BASTEN JA
HULME J
JOHNSON J
4 August 2009

Hassan NAGI v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) (NO 2)

Judgment

Judgment of THE COURT delivered by Basten JA: The applicant was a taxi driver. He was charged in February 2009 with a number of counts of sexual assault on three women. On 12 February 2009 he pleaded guilty to an indictment containing six counts. On that date, he appeared before Bennett DCJ in the District Court at Sydney and was formally convicted of each offence. The hearing was adjourned for sentencing.
The matter came before Bennett DCJ on three subsequent occasions, namely 28 April, 27 May and 3 June 2009. The applicant has not yet been sentenced. As a result of certain events which occurred in March 2009, information became available which was potentially relevant to the sentencing exercise. So much was common ground between counsel for the prosecution and for the applicant. However, the applicant sought to have the Court order that there be no publication of the material. Save on an interim basis, to permit the issues to be ventilated in argument, Bennett DCJ declined to make such an order but allowed the applicant an opportunity to take steps to have this Court review that decision. He considered it inappropriate to sentence the applicant until this issue was resolved. Despite his Honour’s conclusion that publication should be permitted, the steps taken provided continued confidentiality until the review by this Court was completed.
The matter came before this Court on 24 July 2009. At the conclusion of oral argument, the applicant requested that, if the Court were minded to refuse leave or if leave were granted, to dismiss the appeal, the Court should take steps to maintain the current level of confidentiality, to allow the applicant an opportunity to seek special leave to appeal to the High Court, should he be so advised.
This Court is minded to grant leave to appeal but dismiss the appeal. Concurrently with this judgment, it is delivering its reasons for that decision (“the principal judgment”). Conformably with the practice directed by Brennan J in Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [No 1] [1986] HCA 84; 161 CLR 681 at 684, this Court should consider whether a stay should be granted of its orders and judgment, pending determination of the special leave application. The Court is of the view that that course is appropriate, being the course adopted by the trial judge pending determination of the appeal to this Court. However, to give effect to that view, it is also necessary to restrict publication of the judgment of this Court, which makes reference to the material for which confidentiality is sought to be maintained.
The Court now makes the following ancillary orders:
(1)Stay the orders made in the principal judgment until the later of the following times:
(a)if no application for special leave to appeal to the High Court is filed and served (notwithstanding r 41.03.1 of the High Court Rules) within 28 days of pronouncement of this judgment, upon the expiration of that period;
(b)if an application is filed and served in accordance with (a), the day on which the application is disposed of by the High Court.
(2)Whilst the orders in the principal judgment are stayed, publication of the principal judgment and orders is prohibited subject to the following exceptions:
(a)such publication as is necessary for the further administration of justice in relation to the sentencing proceedings, the proceedings in this Court and any proceedings commenced in the High Court of Australia;
(b)such other publication as may be made by or on behalf of the applicant, with his prior written consent.
(3)Grant liberty to the Director of Public Prosecutions and the applicant to apply to a judge of this Court for a variation of orders (1) and (2) above, on three days notice.
(4)Direct that any publication of the principal judgment and orders permitted under these orders, during the period for which the principal orders are stayed, be accompanied by a copy of this judgment.
(5)Note that none of the foregoing ancillary orders prevents or limits the publication of this judgment and these orders.
**********

LAST UPDATED:
5 August 2009

Details

AGLC: Nagi v Director of Public Prosecutions (NSW) (No 2) [2009] NSWCCA 198
Case: [2009] NSWCCA 198
Decision Date: 4 August 2009

CaseChat Overview and Summary

In the matter of Nagi v Director of Public Prosecutions (NSW) (No 2), the applicant, a taxi driver convicted of multiple counts of sexual assault, sought a non-publication order regarding certain material relevant to his sentencing. The case was heard by the Supreme Court of New South Wales, which declined to make such an order. The applicant appealed this decision to the Court of Appeal, which subsequently dismissed the appeal but granted leave to appeal to the High Court. The Court of Appeal made several ancillary orders to manage the publication of its judgment and maintain the confidentiality of the material in question.

The primary legal issue before the Court of Appeal was whether to grant a non-publication order regarding potentially relevant material in the sentencing of the applicant. The Court of Appeal had to consider the balance between the applicant's right to a fair sentencing process and the public interest in open justice. Additionally, the Court had to determine whether to grant a stay of its orders dismissing the appeal pending a potential application for special leave to appeal to the High Court.

The Court of Appeal dismissed the appeal but granted leave to appeal to the High Court, reflecting a cautious approach to the balance between confidentiality and open justice. The Court concluded that it was appropriate to stay its orders and judgment pending the determination of any special leave application to the High Court. To maintain confidentiality, the Court made several ancillary orders, including a prohibition on the publication of its judgment and orders, subject to certain exceptions, and the provision of a copy of the current judgment with any permitted publication. These orders were designed to respect the confidentiality of the material while allowing the legal process to proceed.

The Court of Appeal issued several final orders to manage the stay of its previous orders and the publication of its judgment and orders. These orders included staying the previous orders until a specified time, prohibiting publication of the judgment and orders except under certain conditions, and allowing applications for variations of these orders. The Court also directed that any permitted publication of its judgment and orders be accompanied by a copy of the current judgment. These orders were intended to balance the need for confidentiality with the principles of open justice and the efficient administration of justice.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Judgment of THE COURT delivered by Basten JA: The applicant was a taxi driver. He was charged in February 2009 with a number of counts of sexual assault on three women. On 12 February 2009 he pleaded guilty to an indictment containing six counts. On that date, he appeared before Bennett DCJ in the District Court at Sydney and was formally convicted of each offence. The hearing was adjourned for sentencing. The matter came before Bennett DCJ on three subsequent occasions, namely 28 April, 27 May and 3 June 2009. The applicant has not yet been sentenced. As a result of certain events which occurred in March 2009, information became available which was potentially relevant to the sentencing exercise. So much was common ground between counsel for the prosecution and for the applicant. However, the applicant sought to have the Court order that there be no publication of the material. Save on an interim basis, to permit the issues to be ventilated in argument, Bennett DCJ declined to make such an order but allowed the applicant an opportunity to take steps to have this Court review that decision. He considered it inappropriate to sentence the applicant until this issue was resolved. Despite his Honour’s conclusion that publication should be permitted, the steps taken provided continued confidentiality until the review by this Court was completed. The matter came before this Court on 24 July 2009. At the conclusion of oral argument, the applicant requested that, if the Court were minded to refuse leave or if leave were granted, to dismiss the appeal, the Court should take steps to maintain the current level of confidentiality, to allow the applicant an opportunity to seek special leave to appeal to the High Court, should he be so advised. This Court is minded to grant leave to appeal but dismiss the appeal. Concurrently with this judgment, it is delivering its reasons for that decision (“the principal judgment”). Conformably with the practice directed by Brennan J in Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [No 1] [1986] HCA 84; 161 CLR 681 at 684, this Court should consider whether a stay should be granted of its orders and judgment, pending determination of the special leave application. The Court is of the view that that course is appropriate, being the course adopted by the trial judge pending determination of the appeal to this Court. However, to give effect to that view, it is also necessary to restrict publication of the judgment of this Court, which makes reference to the material for which confidentiality is sought to be maintained. The Court now makes the following ancillary orders:(1)Stay the orders made in the principal judgment until the later of the following times:(a)if no application for special leave to appeal to the High Court is filed and served (notwithstanding r 41.03.1 of the High Court Rules) within 28 days of pronouncement of this judgment, upon the expiration of that period;(b)if an application is filed and served in accordance with (a), the day on which the application is disposed of by the High Court.(2)Whilst the orders in the principal judgment are stayed, publication of the principal judgment and orders is prohibited subject to the following exceptions:(a)such publication as is necessary for the further administration of justice in relation to the sentencing proceedings, the proceedings in this Court and any proceedings commenced in the High Court of Australia;(b)such other publication as may be made by or on behalf of the applicant, with his prior written consent.(3)Grant liberty to the Director of Public Prosecutions and the applicant to apply to a judge of this Court for a variation of orders (1) and (2) above, on three days notice.(4)Direct that any publication of the principal judgment and orders permitted under these orders, during the period for which the principal orders are stayed, be accompanied by a copy of this judgment.(5)Note that none of the foregoing ancillary orders prevents or limits the publication of this judgment and these orders.**********

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.