BUSB v R [2011] NSWCCA 39

BUSB v R [2011] NSWCCA 39

The District Court has implied power to make an order screening witnesses from the accused for reasons of national security; such a power does not require explicit statutory authority and is not unconstitutional where it does not undermine institutional integrity or unfairly impact the right to a fair trial. The exercise of the power in this case was not erroneous, as there was no demonstrated forensic disadvantage to the accused, and the evidence established a real risk to national security from disclosure of witness identities.

Jurisdiction
Australia
Judgment Date
11 March 2011
Procedural Posture
Criminal Appeal / Court of Criminal Appeal
Outcome
Appeal dismissed, leave granted
Legal Topics
['procedure Witnesses Screening Orders' 'national Security Protection of Identity' 'implied Powers of District Court' 'right to Cross Examine and to a Fair Trial']
['criminal Law' 'constitutional Law'] ['procedure Witnesses Screening Orders' 'national Security Protection of Identity' 'implied Powers of District Court' 'right to Cross Examine and to a Fair Trial']

Case Brief

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the District Court has implied power to make an order for screening of witnesses for the purpose of protecting national security' 'Whether a screening order violates Chapter III of the Commonwealth Constitution' 'Whether the trial judge erred in exercising the power to make the screening order']

Ratio Decidendi

The District Court has implied power to make an order screening witnesses from the accused for reasons of national security; such a power does not require explicit statutory authority and is not unconstitutional where it does not undermine institutional integrity or unfairly impact the right to a fair trial. The exercise of the power in this case was not erroneous, as there was no demonstrated forensic disadvantage to the accused, and the evidence established a real risk to national security from disclosure of witness identities.

Court Disposition

Appeal dismissed, leave granted

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']