Da Silva v R (No 2) [2012] NSWCCA 106

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Da Silva v R (No 2) [2012] NSWCCA 106 Hearing dates: 9 May 2012 Decision date: 09 May 2012 Before: Whealy JAat [1] Hidden Jat [5] Schmidt Jat [6] Decision: 1. Pursuant to s.7 of the Court Suppression and Non-publication Orders Act 2010, a non-publication order is made prohibiting the publication, save for the proper conduct of the proceedings, of any of the information referred to in the Schedule to these orders. 2. Pursuant to s.11(2) of the Court Suppression and Non-publication Orders Act 2010, it is specified that this order applies throughout the Commonwealth of Australia. Catchwords: CRIMINAL LAW - interlocutory application - Court Suppression and Non-publication Orders Act 2010 (NSW) s 7, s 8 - "reward" applications for witness testimony - whether publication of witness interview would indirectly reveal police methodology - suppression order made to prevent prejudice to proper administration of justice. Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) - s7, s8, s11 Category: Interlocutory applications Parties: Rodney Rodrigues Da Silva (Applicant) Crown (Respondent) Representation: Counsel: Dr S. Bogan (Applicant) Ms N. Noman (Respondent) I.D. Bourke (Intervenor: NSW Commissioner of Police) Solicitors: CrimLaw (NSW) Pty Ltd (Applicant) Director of Public Prosecutions (Respondent) Crown Solicitor's Office (Intervenor) File Number(s): 2007/009452

Judgment

Ex tempore judgment on application pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW) 1WHEALY JA: There is before the Court an application by the NSW Commissioner of Police made pursuant to ss 7 and 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW). The application is sought to prevent the publication of evidence in proceedings in this Court today. That evidence takes two forms. First, the precise evidence is contained in a record of interview given by Mr Roy Da Silva on 10 August 2011, in particular, questions 54 to 58 of that interview where he described an amount of money given to him pursuant to what I will loosely describe as a "reward" application for giving evidence. It appears to be not uncommon that, in appropriate cases, police are entitled to apply for a monetary reward on behalf of a witness. Such 'rewards' relate to the preservation of a witness's safety. Detective Michael Abbott, the police officer in charge of Rodney Da Silva's investigation, explained in an affidavit dated 30 January 2012 that the guidelines for information to be provided to witnesses is contained within New South Wales Police Force Policy. 2Secondly, the application extends to protect by a non-publication order any mention in the evidence before this Court today, or otherwise in any judgment given by this Court or an argument in Court, as to the precise amount of the reward. The grounds of the application are contained in the affidavit of Commissioner Peter Barrie. In order for the application to succeed, the Court must be satisfied that the order sought is necessary to prevent prejudice to the proper administration of justice: s 8 of the Act. 3Commissioner Barrie, in paragraphs 13 and 14 of his affidavit, confirms that the concern of the police is that publication of this information will indirectly reveal police methodology with regard to the value placed on specific types of information in the granting of rewards. This may, if known, compromise future investigations, according to Commissioner Barrie. It may also create an expectation in potential sources that they should receive a specific amount of money. It may encourage witnesses not to provide information unless a reward is offered and, in particular, a specific reward is offered. In paragraph 14, Commissioner Barrie makes the further point that if this information were publicly known, it may lead to existing sources becoming dissatisfied with the amount of money awarded to them, and may deter them from continuing to assist police. 4Each of those matters, in my opinion, satisfies the requirements of s 8(1)(a) of the Act and, for my part, I would be prepared to make an order in the terms of the Short Minutes of Order which have been placed before the Court. The ground on which the order is made is required to be stated. As I have indicated, the relevant ground is that contained in s 8(1)(a) of the Act. 5HIDDEN J: I agree. 6SCHMIDT J: I agree.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 May 2012