A B v The Queen
[2013] VSCA 8
•11 February 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2012 0251
| A B | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | COGHLAN JA and KAYE AJA |
| WHERE HELD | MELBOURNE |
| DATE OF JUDGMENT | 11 February 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 8 |
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PRACTICE AND PROCEDURE – Order made by trial judge restricting publication of the sentencing remarks and records of the plea hearing – Whether providing the sentencing remarks and transcript for preparation of an appeal of a co-accused contrary to order – Proper application needed to be filed with the appropriate court – Communication between a party and the court must include all relevant parties
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr K McDonald | Patrick W Dwyer |
| For the Crown | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
COGHLAN JA:
KAYE AJA:
By an application filed 31 July 2012, the Director of Public Prosecutions sought orders restricting use of the transcript of the plea, and part of the reasons for sentence, relating to one CD (‘the co-accused’).
The present applicant, AB (‘the applicant’) and the co-accused were each convicted, after a joint trial in the County Court, of intentionally causing serious injury and affray. Subsequent to the verdict of the jury, the trial judge heard a plea on behalf of the co-accused separately to the plea on behalf of the applicant. On the plea of the co-accused, the trial judge received evidence as to the cooperation of the co-accused with the authorities in a matter which was unrelated to the matters for which he was, with the applicant, convicted in the County Court.
At a later date, the trial judge commenced to sentence the applicant and the co-accused. He completed the sentence of the applicant, who was then removed from the court. The trial judge then closed the court. His Honour then commenced to outline details of the co-accused’s cooperation with the authorities, to which we have referred, and acknowledged that, as a result of that cooperation, the co-accused was entitled to a significant discount of the sentence.
Before the trial judge was able to complete pronouncing his reasons for sentence, the applicant’s emotional state deteriorated. Accordingly, the pronouncement of reasons for sentence were adjourned for a short period of time. After brief discussion at a later date, the matter was stood over again to a further date. On that date, the trial judge heard some further plea submissions on behalf of the co-accused and then sentenced the co-accused two days later.
Subsequently, the trial judge, pursuant to s 80(1) of the County Court 1958 (Vic), made an order prohibiting publication by any means of any matter which might directly or indirectly refer to the co-accused’s cooperation with the authorities.
Following sentence, the present applicant has applied to the Court of Appeal for leave to appeal against sentence. The application for leave to appeal is based on a lack of appropriate parity between the sentence of the applicant and the sentence of the co-accused.
On 8 November 2012, the applicant’s legal practitioners obtained, either from the County Court or from the Victoria Government Reporting Service (‘VGRS’), the two days of transcript of the sentencing remarks for the purpose of preparing appeal papers. As we have earlier noted, those sentencing remarks contained details of the cooperation of the co-accused with the authorities, which were the basis of the discounted sentence imposed on the co-accused. The applicant’s legal practitioners formed the view that the non publication order made by the trial judge did not prevent the use by them of the transcript for the purposes of the appeal. Further, on 12 November 2012, the applicant’s solicitors’ office contacted the trial judge’s associate, and apparently confirmed that the transcript was available for use by them in the proposed appeal on behalf of the applicant.
On 17 December 2012, the Court of Appeal Registry served the applicant’s solicitor and the Crown with the transcript of applicant’s plea hearing. We interpolate that the transcript of the plea submissions, made on behalf of the co-accused at his plea hearing, was not provided to the applicant’s solicitors, and indeed neither the parties nor the Court of Appeal presently have access to it.
As we earlier stated, in the application which is before us, the Director of Public Prosecutions has sought orders restricting use of the sections of the transcript of the plea which referred to the cooperation by the co-accused with the authorities, and restricting use of the transcript of the reasons for sentence detailing the co-accused’s cooperation with the authorities.
When the Director’s application came before us, it was common ground that the legal practitioners for the applicant had not communicated or disclosed to anyone, including their client, the contents of the transcript of the plea, or the sentencing remarks of the learned trial judge, which related to the cooperation by the co-accused with the authorities. After some discussion with counsel, orders were formulated, which we pronounced, in respect of the Director’s application. In effect, those orders confirmed the non publication order of the trial judge made. For the avoidance of doubt, the orders pronounced by us prohibited the publication by any means of any record of the proceedings of the plea hearings of the applicant and the co-accused concerning the co-accused’s cooperation with the authorities, and the sentencing remarks of the trial judge setting out the details of the co-accused’s cooperation with the authorities. The orders permitted the legal practitioners acting for the applicant to retain the transcript of the applicant’s plea hearing, and the reasons for sentence, hitherto provided to them, but prohibited them publishing in any manner those parts of those materials which concern the cooperation of the co-accused with the authorities.
Having pronounced those orders, we reserved stating our reasons for the orders. We did so because the application before us involved important matters relating to the practices and procedures of the courts in relation to cases in which material comes before the court of the kind which was adduced on the plea of a co-accused in this case. It was a matter of concern to us that, without any appropriate order of the court, the transcripts of the applicant’s plea hearing, and the first day of the sentencing remarks, had been released to the legal practitioners acting for the applicant, notwithstanding that such release was, on the face of it, contrary to the terms of the non publication order made by the trial judge. We hasten to add that we do not in any way criticise the conduct of the legal practitioners acting on behalf of the applicant. However it would appear that the processes which are in place need to be given careful consideration, in order to ensure that the protection which is provided by orders of the kind made by the trial judge is properly preserved.
The first matter of concern arises from the release, to the legal practitioners acting for the applicant, of the transcript of the sentencing remarks of the trial judge for the purposes of preparing appeal papers. In our view, the release of that transcript was contrary to the orders of the trial judge, and should not have occurred. As we understand it, that release occurred before the applicant made application for leave to appeal to this Court. In such an event, the proper process, which should have been adopted, was for the applicant’s legal practitioners to have made an application to the trial judge, in court, and on notice to the Director. In that way, where the release of such material is at issue, the Director is able to be heard, and in particular is able to put to the court any relevant submissions which might be necessary for the formulation of appropriate protective orders and directions.
The second matter, which is of concern, is the contact which was made by the applicant’s legal practitioners with the associate of the trial judge on 12 November. This Court has, on previous occasions, made it clear that any contact of that kind with a judge’s chambers should be made on notice to the other side. Again, such contact with the judge’s associate would not have been necessary if the applicant’s legal practitioners had made application to the trial judge, in court, and on notice to the Director.
We add to the foregoing that where an applicant for leave to appeal, having filed the application, requires provision of any materials, the publication of which has been prohibited by the trial judge, the applicant should make application for access to those materials to the Court of Appeal on notice to the Director. Once again, it is important that the Director be on notice, and that the matter be heard in court. The involvement of the Director is important in order to ensure that the question of whether access should be granted, and on what terms, be properly considered. It is equally important that any such application take place in court, so that any orders, varying the original order of the trial judge, can be properly formulated, and the terms of any release of the prohibited material clearly specified.
Finally, we note that the release on 8 November of the transcript of the sentencing remarks appears to have been effected either by the County Court itself or by the VGRS. We shall forward a copy of these reasons to the judicial registrar of the Court of Appeal, Mr Pedley, in order that he may ensure that appropriate corrective action is taken in respect of that matter.
As we earlier stated, the issues, which arose from the release of the materials to the applicant’s legal practitioners, have already been addressed previously by the pronouncement of orders by us, to which we have earlier referred. It is appropriate that we acknowledge that the formulation of those orders was greatly assisted by the sensible cooperation with the court by counsel for the Director of Public Prosecutions and counsel for the applicant, for which we are indebted.
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