SA Chief Justice Chris Kourakis declines to release his reasons for disqualifying himself from hearing AN0M case

The state’s top judge won’t say why he disqualified himself from one of the nation’s biggest organised crime cases – and insists the law does not require him to do so.

The state’s top judge has declined to reveal why he disqualified himself from the Operation Ironside case, saying his decision “was not a judgment or order” and so does not have to be released.

Supreme Court Chief Justice Chris Kourakis also says releasing his reasons “at this point in time” may “compromise the proper administration, and effective enforcement, of the criminal law”.

In January and February, The Advertiser asked Chief Justice Kourakis for a copy of his sealed written reasons for recusing himself in the case of two alleged AN0M app users.

The requests were filed following his ruling in a separate matter in which he dismissed a bid, by lawyer Enzo Belperio, to suppress his identity over sexual misconduct allegations.

In that case, he ruled a court “has no right to depart from” Section 131 of the Supreme Court Act, which says it “must, on application” permit access to documents and records.

Supreme Court Judge Chief Justice Chris Kourakis. Picture: Dylan Coker

He ruled that right was “unconditional”, that a court had “no power to abrogate”, and that the “principle of open justice” required matters to be resolved with “public scrutiny”.

He also said the rules of the court “do not give judges of the court a super-legislative power to detract from, or abrogate” the provisions of the Act.

In its applications for a copy of the judge’s reasons for recusal, The Advertiser argued the principals behind that ruling also applied to the AN0M case, in which Chief Justice Kourakis recused himself after hearing two days of evidence.

“I make an order recusing myself from the hearing of these reserved questions of law … I direct that my reasons for doing so be sealed until further order,” he said at the time.

On Wednesday, Chief Justice Kourakis declined to grant permission to access his written reasons.

He said that, when announcing his recusal, he “described my decision as an order”.

Chief Justice Kourakis has refused permission to access his written reasons for disqualifying himself from the AN0M case. Picture: NCA NewsWire / Brenton Edwards

“My description of my recusal as an order does not, in itself, make it so … a recusal is a decision not to hear or continue hearing a matter,” he said.

“By its nature, therefore, it is not a judgment or order because the very reason for the recusal is often that the judge should not give a judgment or make any order in the action because to do so might deny the parties procedural fairness.”

Chief Justice Kourakis said that conclusion was supported “by parity of reasoning” with other, earlier decisions about recusals and their effect upon cases.

“Accordingly, access to my reasons depends on a grant of permission, pursuant to section 131(2) of the Supreme Court Act,” he said.

“I decline to grant permission on the grounds that access to my reasons, at this point in time, may compromise the proper administration, and effective enforcement, of the criminal law.”