AW v Rayney [No 4]
[2012] WASCA 117
•8 JUNE 2012
AW -v- RAYNEY [No 4] [2012] WASCA 117
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 117 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:22/2010 | 18 APRIL 2012 | |
| Coram: | McLURE P BUSS JA NEWNES JA | 8/06/12 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Suppression orders varied | ||
| A | |||
| PDF Version |
| Parties: | AW LLOYD PATRICK RAYNEY |
Catchwords: | Courts and Judges Open-court or open justice principle Correlative entitlement to publish a fair and accurate report of proceedings in court or reasons for decision Fundamental right of an accused to a fair trial Suppression orders Whether suppression orders 'necessary' for the proper administration of justice including securing the fair trial of an accused Whether existing suppression orders made in relation to the reasons for decision of the Court of Appeal should be set aside or varied |
Legislation: | Australian Constitution, s 80 Criminal Code (Cth), s 11.2(1) Criminal Investigation Act 2006 (WA), s 151 Criminal Procedure Act 2004 (WA), s 118 Evidence Act 1906 (WA), s 31A Legal Profession Act 2008 (WA), s 555 Surveillance Devices Act 1998 (WA), s 5(1)(b) Telecommunications (Interception and Access) Act 1979 (Cth), s 7(1)(a) |
Case References: | Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 AW v Rayney [2010] WASCA 161 AW v Rayney [No 2] [2010] WASCA 221 AW v Rayney [No 3] [2010] WASCA 244 Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 351; (2004) 90 SASR 160 Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 Herald and Weekly Times v Williams [2005] VSC 316 Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15 Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 L v ABC [2005] NTSC 5 McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468 Minister for Justice v West Australian Newspapers Ltd [1970] WAR 202 Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 R v MacFarlane [1923] HCA 39; (1923) 32 CLR 518 R v Perish [2011] NSWSC 1102 R v Strawhorn (No 2) [2006] VSC 433 Re a Former Officer of the Australian Security Intelligence Organisation [1987] VR 875 Re Consolidated Press Ltd; Ex parte Terrill (1937) 37 SR (NSW) 255 Re Truth & Sportsman Ltd; Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242 Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650 Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 The State of Victoria v Australian Building Construction Employees' & Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25 The State of Western Australia v Rayney [2011] WASC 326 W v M [2009] NSWSC 1084 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 X v General Television Corp Pty Ltd [2008] VSC 344 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AW -v- RAYNEY [No 4] [2012] WASCA 117 CORAM : McLURE P
- BUSS JA
NEWNES JA
- Appellant
AND
LLOYD PATRICK RAYNEY
Respondent
- Appellant
AND
AW
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M M FLYNN
File No : SJA 1009 of 2010, SJA 1011 of 2010
Catchwords:
Courts and Judges - Open-court or open justice principle - Correlative entitlement to publish a fair and accurate report of proceedings in court or reasons for decision - Fundamental right of an accused to a fair trial - Suppression orders - Whether suppression orders 'necessary' for the proper administration of justice including securing the fair trial of an accused - Whether existing suppression orders made in relation to the reasons for decision of the Court of Appeal should be set aside or varied
Legislation:
Australian Constitution, s 80
Criminal Code (Cth), s 11.2(1)
Criminal Investigation Act 2006 (WA), s 151
Criminal Procedure Act 2004 (WA), s 118
Evidence Act 1906 (WA), s 31A
Legal Profession Act 2008 (WA), s 555
Surveillance Devices Act 1998 (WA), s 5(1)(b)
Telecommunications (Interception and Access) Act 1979 (Cth), s 7(1)(a)
Result:
Suppression orders varied
Category: A
Representation:
CACR 22 of 2010
Counsel:
Appellant : Mr G T W Tannin SC
Respondent : Mr C P Shanahan SC
Intervener : Mr A V McCarthy
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Timpano Legal
Intervener : Mr A V McCarthy
CACR 23 of 2010
Counsel:
Appellant : Mr C P Shanahan SC
Respondent : Mr G T W Tannin SC
Intervener : Mr A V McCarthy
Solicitors:
Appellant : Timpano Legal
Respondent : State Solicitor for Western Australia
Intervener : Mr A V McCarthy
Case(s) referred to in judgment(s):
Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
AW v Rayney [2010] WASCA 161
AW v Rayney [No 2] [2010] WASCA 221
AW v Rayney [No 3] [2010] WASCA 244
Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 351; (2004) 90 SASR 160
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Herald and Weekly Times v Williams [2005] VSC 316
Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23
John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465
L v ABC [2005] NTSC 5
McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468
Minister for Justice v West Australian Newspapers Ltd [1970] WAR 202
Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
R v MacFarlane [1923] HCA 39; (1923) 32 CLR 518
R v Perish [2011] NSWSC 1102
R v Strawhorn (No 2) [2006] VSC 433
Re a Former Officer of the Australian Security Intelligence Organisation [1987] VR 875
Re Consolidated Press Ltd; Ex parte Terrill (1937) 37 SR (NSW) 255
Re Truth & Sportsman Ltd; Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242
Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650
Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264
Russell v Russell [1976] HCA 23; (1976) 134 CLR 495
The State of Victoria v Australian Building Construction Employees' & Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25
The State of Western Australia v Rayney [2011] WASC 326
W v M [2009] NSWSC 1084
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525
X v General Television Corp Pty Ltd [2008] VSC 344
1 McLURE P: I agree with Buss JA.
2 BUSS JA: On 6 August 2010, this court delivered judgment and its reasons for decision in AW v Rayney [2010] WASCA 161 (Rayney [No 1]). The case involved an appeal and a cross-appeal from the decision of a magistrate on applications made by AW (the appellant in CACR 22 of 2010 and the respondent in CACR 23 of 2010) under s 151 of the Criminal Investigation Act 2006 (WA). The magistrate's decision concerned whether various non-electronic and electronic records seized by the police, pursuant to the execution of search warrants under s 42 of the Criminal Investigation Act, were protected by legal professional privilege. When the court delivered judgment in Rayney [No 1] it made a suppression order (the Principal Suppression Order) in relation to its reasons for decision.
3 On 14 September 2010, AW applied to vary the Principal Suppression Order. On 24 September 2010, this court delivered judgment and its reasons for decision on AW's application. See AW v Rayney [No 2] [2010] WASCA 221 (Rayney [No 2]). The court was satisfied that the Principal Suppression Order should be varied, but not to the extent sought by AW.
4 On 9 December 2010, AW applied again to vary the Principal Suppression Order (as varied on 24 September 2010). On 14 December 2010, this court delivered judgment and its reasons for decision on AW's further application. See AW v Rayney [No 3] [2010] WASCA 244 (Rayney [No 3]). The court varied the Principal Suppression Order (as varied on 24 September 2010), but not to the extent sought by AW.
5 When this court delivered its reasons for decision in Rayney [No 2] and Rayney [No 3] it made suppression orders in relation to those reasons.
6 On 30 January 2012, a registrar of this court wrote to the parties, West Australian Newspapers Pty Ltd and the Director of Public Prosecutions (Cth), identifying changes in circumstances which, absent grounds of objection by any of the parties, would justify rescinding the Principal Suppression Order (as varied) and the other suppression orders.
7 Mr Rayney objected to the rescission of the orders. The parties and West Australian Newspapers Pty Ltd and Channel 7 Perth Pty Ltd (together, the intervenor) filed written submissions and, on 18 April 2012, the court heard from counsel for AW, counsel for Mr Rayney and counsel for the intervener. The Director of Public Prosecutions (Cth) did not file submissions or appear.
The pending District Court criminal proceedings against Mr Rayney
8 On 20 September 2007, Mr Rayney, a barrister, was charged with an offence under the Surveillance Devices Act 1998 (WA). This charge was later discontinued and replaced with two counts under s 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) and s 11.2(1) of the Criminal Code (Cth). The Director of Public Prosecutions (Cth) filed an indictment dated 15 September 2008 in the District Court.
9 The indictment reads, relevantly:
Count 1: Between on or about the 23 July and 26 July 2007 at Como in the State of Western Australia Lloyd Patrick RAYNEY did contrary to s 11.2(1) of the Criminal Code (Cth) and s 7(1)(a) of the Telecommunications (Interception and Access) Act 1979 (Cth) aid, abet, counsel or procure the interception of a communication passing over a telecommunications system.
Count 2: Between on or about the 28 July and 4 August 2007 at Como in the State of Western Australia Lloyd Patrick RAYNEY did contrary to s 11.2(1) of the Criminal Code (Cth) and s 7(1)(a) of the Telecommunications (Interception and Access) Act 1979 (Cth) aid, abet, counsel or procure the interception of a communication passing over a telecommunications system.
10 On 19 September 2008, the first hearing in the District Court in relation to these counts occurred.
11 On 31 October 2008, Mr Rayney entered pleas of not guilty.
12 More than two years later, on 8 December 2010, Mr Rayney was arrested and charged with the wilful murder of his wife.
13 The pending counts against Mr Rayney in the District Court have not been determined. A trial date has not been fixed. Since 20 December 2010, the proceedings have been adjourned by consent. The District Court trial will not be held until after the determination of the wilful murder proceedings against Mr Rayney in the Supreme Court.
14 The pending counts in the District Court allege offences on indictment against a law of the Commonwealth. The District Court trial must therefore be before a judge and jury. See s 80 of the Australian Constitution.
The pending Supreme Court wilful murder proceedings against Mr Rayney
15 Mr Rayney's wife, Corryn Rayney, disappeared on 7 August 2007. She died on or about that date. On 18 August 2007, police located her body. She had been buried in a grave in Kings Park.
16 As I have mentioned, on 8 December 2010 Mr Rayney was charged with the wilful murder of his wife.
17 On 17 October 2011, Commissioner Sleight decided that it was in the interests of justice that Mr Rayney be tried on the wilful murder count before a judge alone without a jury. He made an order to that effect under s 118 of the Criminal Procedure Act 2004 (WA). On 30 November 2011, he published reasons for decision. See The State of Western Australia v Rayney [2011] WASC 326. His Honour said:
I conclude in this matter that the extent and nature of the pre-trial publicity has been exceptional. I conclude, that the pre-trial publicity has created a community climate where there has been speculation about Mr Rayney's guilt and created an atmosphere of prejudice against Mr Rayney. There is a real potential that jurors will have formed strong pre-conceived ideas about his guilt prior to trial. I take into account that Mr Rayney has this apprehension and the primary basis of his application is that there is a risk of an unfair trial. Although the courts in the past have placed great faith in juries to follow directions and put aside preconceived ideas or prejudice, in a case like this I believe that the best cure of the danger of such prejudice is to order a trial by judge alone [92].
18 Mr Rayney's trial for wilful murder has been listed to commence on 16 July 2012. There are varying estimates as to its length. The likely duration is about three months.
The changes in circumstances since 14 December 2010
19 Since 14 December 2010 (when this court delivered judgment and its reasons for decision in Rayney [No 3]):
(a) the prosecution brief in the wilful murder proceedings has been filed in the Supreme Court and served on Mr Rayney's lawyers;
(b) Commissioner Sleight has ordered that Mr Rayney be tried on the wilful murder count before a judge alone without a jury; and
(c) the District Court criminal proceedings have been adjourned indefinitely.
The submissions of AW, Mr Rayney and the intervener
20 AW is a member of the WA Police.
21 Counsel for AW submitted that, as a consequence of the order that Mr Rayney be tried before a judge alone without a jury, the likelihood of any prejudice to the fair trial of Mr Rayney in the Supreme Court on the wilful murder count from the publication of this court's reasons in Rayney [No 1] (and, also, its reasons in Rayney [No 2] and Rayney [No 3]) falls away.
22 According to counsel for AW, it is significant in relation to the District Court criminal proceedings that:
(a) During pre-trial hearings in the Supreme Court concerning the wilful murder count, preliminary discussions have taken place in open court, without any suppression order, about matters directly relating to the District Court proceedings.
(b) During the wilful murder trial, evidence as to the covert and unlawful recording by Mr Rayney of conversations he had with his wife before her death, and other matters referred to in this court's reasons in Rayney [No 1], will undoubtedly form part of the State's case.
(c) The trial judge who is to preside over the wilful murder trial must provide reasons for decision. These reasons will necessarily explain his verdict and, also, why particular evidence was or was not admissible. As a consequence, even if some of the evidence relating to the District Court proceedings is ruled inadmissible in the wilful murder trial, it is likely to be referred to in the trial judge's reasons and become known to the public.
23 Counsel for AW submitted that many, if not all, of the matters likely to arise in the District Court trial will have been canvassed in the Supreme Court trial, and it is therefore unlikely that the publication of this court's reasons in Rayney [No 1], Rayney [No 2] and Rayney [No 3] will prejudice the fair trial of Mr Rayney in the District Court on the counts alleging offences against s 7 of the Telecommunications (Interception and Access) Act and s 11 of the Criminal Code (Cth).
24 It was submitted on behalf of AW that if this court decided not to rescind the Principal Suppression Order (or the other suppression orders) it should, nevertheless, vary the Principal Suppression Order to enable Mr Rayney's conduct (in particular, the conduct referred to in the reasons in Rayney [No 1] at [44], [217], [265], [317], [319], [351], [353] and [366]) to be considered by the Legal Practice Board, the Western Australian Bar Association's Disciplinary Committee and the Legal Profession Complaints Committee.
25 The essence of the submissions made by counsel for Mr Rayney was as follows. First, three of the first four reasons I gave (Newnes JA agreeing) in Rayney [No 2] justified the maintenance of the Principal Suppression Order and the other suppression orders. Secondly, the matters I identified in my reasons in Rayney [No 2] described the relationship between the subject matter of Rayney [No 1] on the one hand, and the District Court counts on the other, and gave primacy to the avoidance of the risk of an unfair trial in the District Court. Thirdly, the changes in circumstances since 14 December 2010 have not materially reduced the risk of an unfair trial in the District Court so as to require or justify the rescission of the Principal Suppression Order and the other suppression orders. Fourthly, there is no public interest in the publication of this court's reasons that outweighs the necessity for the preservation of Mr Rayney's right to a fair trial in the District Court. Fifthly, as regards the transmission of the reasons in Rayney [No 1] to professional disciplinary bodies, Mr Rayney should not be 'put in a position where [there is] likely to be any sort of collateral investigation in respect of matters that happened some time ago now at the time when he is preparing his defence in [two major prosecutions]' (appeal ts 182).
26 Counsel for the intervener advanced two broad submissions in support of his contention that the Principal Suppression Order and the other suppression orders should be rescinded. First, he argued that 'as a matter of law' a fair and accurate report of proceedings in this court is in the public interest and, notwithstanding that such a report 'may cause prejudice to a person in future litigation', including the interests of an accused in criminal proceedings, it is in the interests of justice for the fair and accurate report to be published (appeal ts 183 - 184). Secondly, counsel argued that 'the public policy reasons behind the law of contempt' are 'exactly the same consideration as what we are dealing with here today' (appeal ts 190). According to counsel, the principles underpinning the law of contempt apply in determining whether, in the present case, the Principal Suppression Order and the other suppression orders should be rescinded. Counsel referred to TheState of Victoria v Australian Building Construction Employees' & Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25 and Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15.
The applicable legal principles
27 In Australia a person who has been charged with a criminal offence has a fundamental right to a fair trial (or, more accurately, a right not to be tried unfairly). Subject to any applicable express statutory provisions, a superior court has inherent jurisdiction, and an inferior court has implied power, to control the criminal process to ensure it is not abused and to protect this fundamental right. See R v MacFarlane [1923] HCA 39; (1923) 32 CLR 518, 541 - 542 (Isaacs J); Hinch v Attorney-General (Vic) (58) (Deane J); Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 56 (Deane J); McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468, 478 (Mason CJ, Deane, Gaudron & McHugh JJ); Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 299 - 300 (Mason CJ & McHugh J), 326, 330 (Deane J), 362 - 364 (Gaudron J).
28 There is a public interest in protecting the fundamental right of an accused to a fair trial. See Re Truth & Sportsman Ltd; Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242, 249 (Jordan CJ); Attorney-General (NSW) v TCN Channel NinePty Ltd (1990) 20 NSWLR 368, 384 (Gleeson CJ, Kirby P and Priestley JA).
29 An essential feature of courts in the Australian judicial system is that they sit in public. In Russell v Russell [1976] HCA 23; (1976) 134 CLR 495, Gibbs J made these observations about the open-court or open justice principle:
It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted 'publicly and in open view' (Scott v Scott [1913] AC 417, at p 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for 'publicity is the authentic hall-mark of judicial as distinct from administrative procedure' (McPherson v McPherson [1936] AC 177, at p 200) (520).
30 Recently, in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, French CJ elaborated upon this principle:
An essential characteristic of courts is that they sit in public (Daubney v Cooper (1829) 10 B & C 237 at 240 [109 ER 438 at 440]; Dickason v Dickason (1913) 17 CLR 50; Scott v Scott [1913] AC 417; Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J). That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny (Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J). It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard (Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76 [64], 81 [78] per Gummow, Hayne and Crennan JJ). However, it is not absolute (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 359 [56] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, adopting the remarks of Gaudron J in Harris v Caladine (1991) 172 CLR 84 at 150, referring to 'limited exceptions' to the open and public inquiry involved in the exercise of judicial power) [20].
31 A corollary of the open-court or open justice principle is that at common law, absent any limitation or restriction imposed by an order of the court, anyone (including the media) may publish a fair and accurate report of proceedings in open court. See John Fairfax & Sons Ltd v Police Tribunal(NSW) (1986) 5 NSWLR 465, 481 (McHugh JA, Glass JA agreeing); John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 [20] (Spigelman CJ, Handley JA & Campbell AJA agreeing); Hogan [22].
32 At common law, a superior court may, in the exercise of its inherent jurisdiction, and an inferior court may, in the exercise of its implied powers, make orders that limit or restrict the application of the open-court or open justice principle, and the correlative entitlement to publish a fair and accurate report, by, for example, making a suppression order. But this jurisdiction or power may be exercised only where it is 'necessary' for the proper administration of justice, including securing the fair trial of an accused. See Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264, 270 (Street CJ, Hope JA & Rogers AJA); John Fairfax v Police Tribunal (476 - 477); Re a Former Officer of the Australian Security Intelligence Organisation [1987] VR 875, 876 - 877 (Brooking J); Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 351; (2004) 90 SASR 160, [37] - [39], [45] - [48] (Gray J, Nyland J agreeing); Herald and Weekly Times v Williams [2005] VSC 316 [11] - [17] (King J); X v General Television Corp Pty Ltd [2008] VSC 344 [44] (Vickery J); Hogan [21], [26]. The term 'necessary', in this context, connotes reasonably necessary. It does not, in this context, mean essential. See Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 [51] (Gaudron, Gummow and Callinan JJ); R v Perish [2011] NSWSC 1102 [42] (Price J).
33 Where there is a conflict between the fundamental right of a citizen to a fair trial on a criminal charge, on the one hand, and the open-court or open justice principle and the correlative entitlement to publish a fair and accurate report, on the other, the application of the latter principle and entitlement must be modified to the extent reasonably necessary to ensure a fair trial. See John Fairfax v Police Tribunal (476 - 477); L v ABC [2005] NTSC 5 [17] - [18] (Mildren J); R v Strawhorn (No 2) [2006] VSC 433 [32] (Habersberger J); W v M [2009] NSWSC 1084 [20] - [22] (Brereton J); Hogan [21].
34 The principles I have discussed in relation to the fundamental right of a person in Australia to a fair trial on a criminal charge, and its interaction with the open-court or open justice principle and the correlative entitlement to publish a fair and accurate report, have been formulated in the context of the publication of evidence or other information, and comment on evidence or other information. These principles have not been formulated in the context of the publication of the reasons (including findings of fact made in the reasons) of a court. However, in my opinion the principles I have discussed apply, by analogy, to the reasons (including findings of fact in the reasons) of a court.
35 This court's inherent jurisdiction has not been circumscribed or excluded by any express statutory provisions applicable to the facts and circumstances of the present case. The inherent jurisdiction of this court, in the present case, extends to the making of a suppression order in relation to its reasons if it is satisfied that the order is reasonably necessary for the proper administration of justice in this State, even if the reasonable necessity for the order arises from the administration of justice in a pending proceeding in another court within this State's judicial hierarchy.
36 The submissions made on behalf of the intervener require a consideration of some aspects of the law of sub judice contempt.
37 The general rule is that if material (including information or comment) is published in circumstances where the publication has a clear tendency, as a matter of practical reality, to interfere with or prejudice the proper administration of justice in a particular court proceeding, the person who has published the material will have committed the common law offence of criminal contempt of court. The act of publication must be intentional, but an intention or purpose of interfering with or prejudicing the proper administration of justice is not essential. It must be plainly discernible from the nature and circumstances of the publication that there is a real or definite possibility that it may interfere with or prejudice the proper administration of justice. Hence, the reference to 'practical reality'. See Hinch v Attorney-General (Vic) (27 - 28) (Mason CJ), (34) (Wilson J), (46 - 47) (Deane J), (69 - 70) (Toohey J); Attorney-General (NSW) v TCN Channel Nine (379 - 380).
38 In Attorney-General (NSW) v TCN Channel Nine, the claimant, the Attorney-General for New South Wales, sought, amongst other relief, a declaration that the opponent was guilty of contempt of court for broadcasting on television a matter which was likely or calculated or had a tendency to interfere with the administration of justice in connection with the trial of Paul Gerald Mason on three charges of murder and one charge of attempted murder.
39 The Court of Appeal of New South Wales noted that there is a qualification to the general rule relating to contempt of court which must be considered where it is argued that there is a competing public interest which outweighs the detriment of the possibility of prejudice in the administration of justice in the particular case in question (379 - 380). See also Hinch; Ex parte Bread Manufacturers (249 - 250); Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650, 676 - 679 (Hope JA), 681 - 683 (Priestley JA).
40 This argument was advanced on behalf of the opponent in Attorney-General (NSW) v TCN Channel Nine. Gleeson CJ, Kirby P and Priestley JA dismissed the argument. Their Honours said:
The final argument advanced on behalf of the Opponent was that, because of the elements of public interest involved in the news item in question, no punishable contempt had been committed.
It is true that there were matters of public interest involved in the Opponent's news item. The arrest brought to an end a widely-publicised manhunt for a dangerous killer. The public were entitled to be informed of that. Fears created by the killing and the search needed to be allayed. The public had an interest in knowing of the success of the activities of the police. Nevertheless the public interest in these and any other relevant matters could have been satisfied without the presence in the news item of the various features which render it offensive.
The reference in the news item to the subject matter of the charges were central and not merely incidental to some wider topic of public discussion. The case in that respect is quite unlike Registrar of the Court of Appeal v Willesee. It is much closer to Hinch where, whilst declining to treat the famous passage in the judgment of Jordan CJ in Ex parte Bread Manufacturers (at 249 - 250; 100), as laying down any precise formula to be applied, a number of their Honours stressed the significance of this consideration (at 28) per Mason CJ, (at 43) per Wilson J and (at 86) per Gaudron J.
As Wilson J observed in Hinch (at 41 - 42), in dealing with the argument that a balancing exercise is involved in weighing competing public interests:
'But it is important to emphasize that in undertaking the balancing exercise the court does not start with the scales evenly balanced. The law has already tilted the scales. In the interest of the due administration of justice it will curb freedom of speech, but only to the extent that is necessary to prevent a real and substantial prejudice to the administration of justice.'
In our view, applying the principles enunciated by the High Court in Hinch, it is impossible to hold that in the circumstances the various considerations of public interest referred to on behalf of the Opponent prevent the conclusion that the publications constituted serious and punishable contempts (384).
41 Where a charge of criminal contempt is brought in relation to a publication which allegedly has a clear tendency, as a matter of practical reality, to interfere with or prejudice the proper administration of justice in a particular court proceeding, it is open to the defendant to raise the defence that the publication in question was a fair and accurate report, made in good faith, of proceedings in open court. See Re Consolidated Press Ltd; Ex parte Terrill (1937) 37 SR (NSW) 255, 257 - 259 (Jordan CJ, Rogers & Bavin JJ agreeing); Hinch (25 - 26) (Mason CJ); Minister for Justice v West Australian Newspapers Ltd [1970] WAR 202, 207 (Jackson CJ). The defence will not be open if the publication in question breaches any limitation or restriction on publication imposed by an order of the court.
42 The proper administration of justice underpins the exercise by a superior court of its inherent jurisdiction, and the exercise by an inferior court of its implied powers, to make orders that limit or restrict the application of the open-court or open justice principle and the correlative entitlement to publish a fair and accurate report. This concept also underpins the law of criminal contempt.
43 However, separate and distinct principles have been developed for determining:
(a) whether a court should exercise its inherent jurisdiction or its implied powers (as the case may be) on the ground that the exercise is necessary to secure the fair trial of an accused; or
(b) whether the publication of material (including information or comment) in relation to a particular court proceeding constitutes the common law offence of criminal contempt.
44 A decision by a court as to whether a suppression order should be made is prospective in the sense that it relates to possible or anticipated publications which have not occurred and to the trial of an accused which has not commenced or been completed. The order serves both the interests of the accused and the public interest in protecting the fundamental right of the accused to a fair trial.
45 By contrast, a decision by a court as to whether an alleged contemnor is guilty of the common law offence of criminal contempt relates to a publication that has already occurred. Proceedings for criminal contempt are brought in the public interest to vindicate judicial authority or maintain the integrity of the judicial process. They are, in essence, punitive. See Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 106 (Gibbs CJ, Mason, Wilson & Deane JJ); Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, 530 (Brennan, Deane, Toohey & Gaudron JJ); Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [22] (Kirby J), [132] - [133] (Hayne, Heydon & Crennan JJ).
In the present case should the Suppression Order and the other suppression orders be set aside or varied?
46 I am satisfied that, as a result of Commissioner Sleight having ordered that Mr Rayney be tried on the wilful murder count before a judge alone without a jury, there is no conflict between Mr Rayney's fundamental right to a fair trial (or not to be tried unfairly) on that count, on the one hand, and the open-court or open justice principle and the correlative entitlement to publish a fair and accurate report, on the other. Since 14 December 2010, the Suppression Order and the other suppression orders have permitted a copy of this court's reasons in Rayney [No 1] (and, also, Rayney[No 2] and Rayney [No 3]) to be given to, any judicial officer who has been listed to hear or is hearing any interlocutory, final or other hearing concerning the Supreme Court wilful murder proceedings or the trial of those proceedings. A trial judge will, by virtue of his or her training, experience and duty, determine a criminal charge solely on the basis of the relevant and admissible evidence adduced by the Crown or the State and the accused. Accordingly, the existence of the pending Supreme Court wilful murder proceedings and the imminent commencement of the trial do not constitute a proper basis for the continuation of the Suppression Order or either of the other suppression orders.
47 The critical issue is whether this court should exercise its inherent jurisdiction to maintain the Suppression Order and the other suppression orders on the ground that these orders are reasonably necessary to secure the fair trial of Mr Rayney in the District Court criminal proceedings.
48 It is apparent from this court's reasons in Rayney [No 1] that:
(a) between about April 2007 and 7 August 2007, Mr Rayney used a digital dictaphone to record conversations with his wife, without her knowledge or consent;
(b) Mr Rayney copied some of the original recordings onto a disk on his computer;
(c) Mr Rayney did not, however, copy all of the original recordings;
(d) on 22 August 2007, the police executed a search warrant at the Rayney family home and on 20 September 2007 they executed search warrants at the Rayney family home and at Mr Rayney's chambers;
(e) after the execution of the search warrants on 22 August 2007 and 20 September 2007, Mr Rayney destroyed the original recordings of the covertly recorded conversations with his wife by throwing away the dictaphone;
(f) before he disposed of the dictaphone, Mr Rayney had deposited it with his lawyer after the police named him as the prime suspect, and later as the sole suspect, in his wife's murder;
(g) Mr Rayney recovered the dictaphone from his lawyer after the police seized the copies Mr Rayney had made of some of the original recordings;
(h) Mr Rayney disposed of the dictaphone less than a week after recovering it from his lawyer;
(i) Mr Rayney deliberately threw the dictaphone away because, according to him, it 'had no more use, no purpose';
(j) when Mr Rayney deliberately threw the dictaphone away, and thereby destroyed the original recordings, he knew (as was the fact) that the police who were investigating his wife's death were endeavouring to execute search warrants which authorised them to seize from the Rayney family home and his chambers various non-electronic and electronic records, including dictaphones;
(k) the magistrate did not accept Mr Rayney's sworn evidence that his wife had expressly or impliedly consented to the recording of their conversations in person or their telephone discussions; and
(l) the magistrate found that the original recordings of the covertly recorded conversations with Mrs Rayney were made by Mr Rayney in contravention of s 5(1)(b) of the Surveillance Devices Act.
49 This court dismissed Mr Rayney's appeal against the magistrate's decision that the copies Mr Rayney had made of some of the original recordings were not protected by legal professional privilege.
50 Also, it is apparent from this court's reasons in Rayney [No 1] that:
(a) between about 7 August 2007 and mid September 2007, Mr Rayney used another digital dictaphone to record conversations with third parties (including police officers), without their knowledge or consent;
(b) Mr Rayney copied the original recordings onto a disk on his computer;
(c) the only evidence that Mr Rayney made a complete copy of the original recordings of his conversations with the third parties, came from Mr Rayney; compare the magistrate's finding that Mr Rayney did not copy all of the original recordings of his conversations with his wife;
(d) after he copied the original recordings, Mr Rayney destroyed the original recordings by throwing away the dictaphone;
(e) Mr Rayney's use of the dictaphone to make the original recordings, without the knowledge or consent of the third parties, contravened s 5(1)(b) of the Surveillance Devices Act; and
(f) the objective probabilities were that Mr Rayney's dominant purpose in making a copy of the original recordings was to assess later whether anything said by any party might be useful or advantageous to him, as matters developed in the course of the police investigation into his wife's death.
51 This court allowed AW's appeal against the magistrate's decision that the copies Mr Rayney had made of the original recordings were protected by legal professional privilege.
52 A contravention of s 5(1)(b) of the Surveillance Devices Act is a criminal offence.
53 This court's reasons in Rayney [No 1] contain other material which is seriously prejudicial to Mr Rayney. It is unnecessary to refer to it in these reasons. The material in question is relevant to the Supreme Court wilful murder count, but is not relevant to the District Court charges except to the extent that it may impact on Mr Rayney's credit.
54 Count 1 in the indictment filed in the District Court relates to the period between on or about 23 July 2007 and 26 July 2007 and count 2 relates to the period between on or about 28 July 2007 and 4 August 2007. As I have mentioned, Mrs Rayney disappeared on 7 August 2007, she died on or about that date, and on 18 August 2007 the police located her body.
55 The substance of the Crown's case against Mr Rayney in the District Court criminal proceedings is that he aided, abetted, counselled or procured the interception of communications passing over the land line telephone installed in the Rayney family home for the purpose of covertly recording telephone conversations made by and to his wife.
56 During a directions hearing on 20 February 2012 in the Supreme Court proceedings relating to the wilful murder count, there was some discussion, in open court, between the trial judge, the prosecutor and defence counsel in relation to the evidence to be adduced by the State. The relevant passages in the transcript read:
BRIAN MARTIN AJ: All right. Does anyone suggest that there should be a suppression order in relation to what is being said today? Apparently I'm being asked - the media have inquired as to whether it's likely that there will be a suppression order.
EDWARDSON, MR: Your Honour, on the last occasion the only suppression order that was made was in respect of my health issue and I can't imagine that's of any public interest. ...
BRIAN MARTIN AJ: I don't see why that should be suppressed. We're not dealing with a jury and the only reason why it's suppressed is so that the jury don't become aware of it.
EDWARDSON, MR: True.
...
BRIAN MARTIN AJ: All right. I can indicate to the media that as far as I'm aware at this time I'm not proposing to make any suppression orders, but I would invite you to exercise your discretion when it comes to the question of Mr Edwardson's health.
Mr Agius, just so I can understand something that has been touched on here, the summary that you have provided to the court and the defence about the essence of the crown case does include a lot of material relating to statements by the deceased concerning the state of the relationship and the topics, and I understand that it's the crown case that there was obviously a build-up of difficulties.
Are you proposing to lead the statements by the deceased first as evidence of her intentions, her state of mind, and to ask the court to infer that she had reached a point where she was demanding, she wasn't going to take a step back, and that that leads to an inference as to what was likely to happen on that night?
AGIUS, MR: Yes, your Honour.
BRIAN MARTIN AJ: All right. That doesn't infringe the rule against hearsay.
AGIUS, MR: No.
...
AGIUS, MR: ... Sometimes it is made in the context of the accused and the deceased exchanging emails and she will say in an email, 'You said to me X,' and then he will respond. Now, he may or may not respond to that allegation. In some cases he will deny it. In some cases he will not deny it, and we would say that that itself is an exception to the hearsay rule ...
...
AGIUS, MR: ... [W]e have a number of examples in this case where, for example, on a particular day we know, or it is our case, I should say - it is our case that from a particular day the accused arranged to have her telephone conversations intercepted.
BRIAN MARTIN AJ: Yes
AGIUS, MR:We have witnesses who had telephone conversations with her during that period. In that period she might have said something like - I won't go into the detail, I don't want to be salacious today - - -
BRIAN MARTIN AJ: You're saying that he - - -
AGIUS, MR: - - - but she may have said something negative about the accused and she may have said something about the consequences and what she might do about it and how what she might do might affect his career.
BRIAN MARTIN AJ:Because you have proved that he was tapping her calls or had them under surveillance, then you're asking the court to infer that it's likely that he would have heard that on the recording.
AGIUS, MR: Yes, and it goes to motive.
BRIAN MARTIN AJ: And it goes to motive. All right.
AGIUS, MR: It doesn't go to the truth as to whether or not he had done the particular thing that she suspected he had done or the truth of whether or not he admitted or denied having done what she suspected he had done, but our case is that he heard her say those things on the phone - indeed on one occasion he went to his solicitor with the recording and he was so incensed about it. That just happened to be the day before she was killed (ts 204 - 208). (emphasis added)
57 The material before this court does not include the prosecution brief in the Supreme Court wilful murder proceedings or the prosecution brief in the District Court criminal proceedings.
58 It appears from the transcript of the directions hearing on 20 February 2012 that the State will seek to adduce evidence of the facts and circumstances summarised at [48] above in relation to:
(a) Mr Rayney's use of the digital dictaphone to covertly record conversations with his wife; and
(b) his subsequent conduct in copying some of the original recordings, and then destroying the original recordings by deliberately throwing away the dictaphone,
for the purpose of proving, amongst other things, the condition of the relationship between Mr Rayney and his wife shortly before her death, as part of the State's case as to motive.
59 No decision has been made in the District Court proceedings as to whether evidence of the facts and circumstances summarised at [48] and [50] above, in relation to Mr Rayney's use of the digital dictaphones to covertly record conversations with his wife and with third parties, is admissible in the Crown's case in those proceedings as 'propensity evidence' or 'relationship evidence', pursuant to s 31A of the Evidence Act 1906 (WA) or at common law.
60 However, at the hearing before this court, we were informed by counsel for Mr Rayney (who is not defence counsel in the Supreme Court wilful murder proceedings) that, on his instructions, an application will be made to the trial judge in the wilful murder proceedings for a suppression order 'at least in relation to the material matters that go to the District Court charges' (appeal ts 168), for the purpose of protecting Mr Rayney's right to a fair trial of those charges.
61 Although a trial date has not been fixed for the District Court proceedings, it is likely that the evidence and the addresses in the Supreme Court wilful murder trial will be completed in about October 2012, and the trial judge will announce the verdict and publish his reasons in about November or December 2012. On this basis, a trial of the District Court charges may commence, at the earliest, in about February 2013.
62 The issue of whether this court should set aside the Suppression Order and the other suppression orders is not without difficulty.
63 A number of factors militate against the setting aside of the orders. The combined weight of these factors indicates that the continuation of the orders is reasonably necessary to secure the fair trial of Mr Rayney on the District Court charges. The factors are as follows:
(a) There is a powerful analogy between this court's reasons in Rayney [No 1] and the subject matter of the District Court charges against Mr Rayney.
(b) This court's reasons in Rayney [No 1] do not merely refer to evidence. They contain adverse findings of fact including findings that Mr Rayney contravened s 5(1)(b) of the Surveillance Devices Act when he covertly recorded the conversations with his wife and with third parties.
(c) As Commissioner Sleight found in The State of Western Australia v Rayney, the pre-trial publicity in relation to the wilful murder count 'has created a community climate where there has been speculation about Mr Rayney's guilt and created an atmosphere of prejudice against Mr Rayney', and there is 'a real potential that jurors will have formed strong pre-conceived ideas about his guilt prior to trial' [92]. This finding applies with equal force to the District Court charges.
(d) The publication of this court's reasons in Rayney [No 1], Rayney [No 2] and Rayney [No 3] would be likely to fuel speculation in the community about Mr Rayney's guilt on the District Court charges and exacerbate the atmosphere of prejudice against him generally. Also, the publication of the reasons in question would be likely to add strength to any pre-conceived views that potential jurors may have formed about his guilt before the District Court trial.
(e) Although the courts accept that jurors will be faithful to the oath or affirmation that each of them has made, and will observe the trial judge's directions, the publication of seriously prejudicial information may impact, at least subconsciously, on the jurors. The relevant reasons in this court are information of this kind.
(f) Although it is not possible accurately to predict the precise date on which the District Court trial will commence, it is reasonably conceivable that it may begin in about February 2013.
(g) Although the District Court trial is not likely to commence until, at the earliest, about February 2013, the intervening period is unlikely to diminish the serious prejudice that the publication of the reasons in question would occasion, in that it can confidently be predicted that there will be extensive reporting in the media of Mr Rayney's wilful murder trial, including evidence of a salacious kind. See, for example, the comments of the prosecutor at the directions hearing on 20 February 2012 (ts 208).
64 The commencement of the Supreme Court wilful murder trial is imminent.
65 This court's decision as to whether the Suppression Order and the other suppression orders should be maintained is not intended to be determinative, or to influence the outcome, of the foreshadowed application in the wilful murder trial for a suppression order. First, much of the highly prejudicial material in this court's reasons in Rayney [No 1], in particular its adverse factual inferences and conclusions, will not (prima facie) be admissible evidence in the wilful murder trial. Secondly, the extent to which the source facts canvassed in those reasons will be adduced in evidence in the wilful murder trial is presently unknown. Thirdly, the trial judge, who will have read the prosecution brief filed by the State and know all the issues of fact and law to be decided in the wilful murder trial, will be in the best position to assess whether suppression of part of the evidence adduced in the wilful murder trial is reasonably necessary to secure the fair trial of Mr Rayney on the District Court charges.
66 In my opinion, as matters currently stand, the Suppression Order and the other suppression orders should be maintained. The maintenance of the orders is reasonably necessary for the proper administration of justice; in particular, for securing the fair trial of Mr Rayney on the District Court charges. I have reached this conclusion for the following reasons. First, on the basis of the factors I have listed at [63] above. Secondly, the references by the prosecutor to the State's contention (in the Supreme Court wilful murder trial) that Mr Rayney arranged to have his wife's telephone conversations intercepted (being the subject matter of the District Court charges) was, in substance, confined to a general statement of that contention. No details of the arrangements allegedly made by Mr Rayney or of the contents of the intercepted conversations was revealed. Thirdly, no decision has been made in the District Court proceedings as to whether evidence of the facts and circumstances summarised at [48] and [50] above is admissible in the Crown's case in those proceedings as 'propensity evidence' or 'relationship evidence'.
67 The Suppression Order and the other suppression orders should continue until further order. It may be that, as matters develop during the Supreme Court wilful murder trial, the maintenance of the orders will become inappropriate. In that event, or upon the occurrence of some other material change of circumstances, AW or the intervener may apply to this court to set aside the orders.
68 I would, however, vary the Suppression Order and the other suppression orders to enable a copy of this court's reasons in Rayney [No 1] to be provided to the Legal Profession Complaints Committee, being the statutory body established under s 555 of the Legal Profession Act 2008 (WA). This variation should not, however, be construed by the Committee or anyone else as an indication of this court's view as to whether or when the Committee should exercise any of its statutory powers in relation to Mr Rayney. These are matters for the Committee.
69 Finally, I note that, after the hearing on 18 April 2012, Mr Rayney's solicitors informed the court that, by letter dated 17 May 2012, they had requested the Director of Public Prosecutions (Cth) to consider discontinuing the prosecution of Mr Rayney on the District Court charges. If the Director accedes to this application then it will be necessary for the maintenance of the Suppression Order and the other suppressions orders to be reconsidered.
Conclusion
70 The Suppression Order and the other suppression orders should not be set aside, but they should be varied to enable a copy of this court's reasons in Rayney [No 1] to be provided to the Legal Profession Complaints Committee.
71 NEWNES JA: I agree with Buss JA.
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