Bradley v Herald and Weekly Times Ltd
[2001] VSC 422
•26 October 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 8137 of 2001
| TERRY BRADLEY | Plaintiff |
| v | |
| HERALD & WEEKLY TIMES LTD THE AGE COMPANY LTD NATIONWIDE NEWS LTD AUSTRALIAN BROADCASTING CORPORATION | Defendants |
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JUDGE: | McDonald J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2001 | |
DATE OF JUDGMENT: | 26 October 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 422 | |
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APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr M.A. Dreyfus QC | Stary Myall |
For the First and Second Defendant | Mr W.T. Houghton QC with Mr Houlihan | Corrs Chambers Westgarth Minter Ellison |
For the Fourth Defendant | Mr C. Shaw | Blake Dawson Waldron |
For the Third Defendant | No appearance |
HIS HONOUR:
The proceeding presently before the Court is an oral application brought by counsel on behalf of Terry Bradley. The application is brought without proceedings having been issued and without any affidavit to this point of time being before the Court. However, undertakings have been given to the Court by the solicitors for the applicant Bradley as to the filing of an affidavit in this proceeding, setting out the facts and matters which Senior Counsel for the plaintiff has informed the Court being the facts and matters relevant to the proceeding before the Court.
An undertaking has also been given by the solicitor for the applicant to institute proceedings in this Court seeking an Order as now presently sought by way of an Interim Order.
On such undertakings being given, I am prepared to entertain the application. The application seeks Orders that the Australian Broadcasting Corporation, the Herald & Weekly Times Ltd, Nationwide News Ltd and the Age Company Ltd be restrained until 4.00 p.m. Monday 29 October 2001 from publishing any information which may identify Terry Bradley as a person charged with criminal offences for which he is bailed to appear before the Magistrates' Court at Melbourne on 29 October 2001.
There is represented before the Court by counsel and solicitors the Australian Broadcasting Corporation, The Herald & Weekly Times and The Age Company Ltd. The Nationwide News Ltd is not represented before the Court. I have a statement made by counsel on his instructions as to endeavours being made by his instructing solicitor to communicate with Nationwide News Ltd to give them notice of this oral application. Although that was given to a solicitor, no person appears before the Court formally to represent them, although during the course of the proceeding Mr Houghton, who appears in this proceeding, informed the Court that although he holds a retainer for such company, he has no instructions to act on behalf of that company. He further said that if an Order was made in the terms of the undertaking given by him on behalf of the clients whom he represents before the Court, he would have thought that that Order would have been an appropriate Order but beyond that it would certainly not be appropriate. I take it not withstanding such comment, that Nationwide News Ltd is not represented before the Court in any formal matter. However, I take it also and accept that endeavours have been made to have brought to the attention of Nationwide News Ltd this application. It is an urgent application; it is brought orally and on an undertaking also given as to the matters referred to.
I should pause in giving these reasons to inquire as to one further matter. Mr Dreyfus, if these Orders are given, is there any person who can give an undertaking as to damages?
MR DREYFUS: I have never had to contemplate whether or not indeed an undertaking as to damages might be appropriate in a case such as this. I do not know of any case in which one has ever been sought, Your Honour.
HIS HONOUR: I did not but I just pause. Is there any party contending that if an Order is made in these proceedings an undertaking as to damages should be given? I take the silence as not. I will then proceed.
On the matters I have been informed, it appears that at present, committal proceedings are to commence or have commenced against six persons who have been charged with offences including affray, riot, burglary and aggravated burglary in relation to conduct which occurred at the premises of Skilled Engineering on 15 June 2001. I have been informed, and it is a fact that I have regard to at this time, that on this day the applicant Bradley went to a police station in company with his solicitor and having attended at the police station he was charged with offences relevant to those offences with which the six other persons have been previously charged. Bradley is due to appear in answer to bail before the Magistrates' Court next Monday 29 October in answer to those charges.
I have been informed that in the proceedings before the Magistrates' Court at present, an Order has been made a magistrate in the nature of an Order prohibiting any publication of any detail as to the identity or other detail which could identify those six defendants to the proceedings in the Magistrates' Court then being conducted.
The first matter that I have regard to is whether I have jurisdiction to make an order of this nature. In my view, there is inherent jurisdiction invested in this Court to ensure that in matters relating to the administration of justice including criminal proceedings that such proceedings are conducted fairly, both as to any informant or prosecutor and to any person accused. It has been submitted to the Court, on behalf of the applicant, that until 4.00 p.m. on 29 October 2001, Bradley should be in the same position as the other six accused persons. I should and do add at this point that there are proceedings presently before this Court brought by the Herald & Weekly Times, The Age Company and, I gather also by way of an added defendant, Nationwide News Ltd, to set aside the Order made by the magistrate. Those proceedings, as I understand it, although I have not had the opportunity to fully investigate the matter, are by way of judicial review of the Order made by the magistrate.
On behalf of his clients, Mr Houghton has proffered an undertaking to the Court that each will not publish before 4.00 p.m. 29 October 2001 any photograph or visual likeness of the accused Terry Bradley as being a person charged with offences committed at the premises of Skilled Engineering on 15 June 2001.
On behalf of his client, the Australian Broadcasting Corporation, Mr Shaw has proffered also such undertaking to the Court.
On behalf of his clients, Mr Houghton has submitted that the Court should not make an Order against his clients, having regard to such undertaking proffered. He has submitted that his client should be, as they have a right and entitlement, to publish the name of a person who is charged with an offence and the offence with which that person is charged. His clients resist any Order that should restrict them from publishing the name of the applicant, the identity of the applicant, as to his occupation, and to the offence with which he is charged.
Mr Shaw, on behalf of the Australian Broadcasting Corporation, adopted the on behalf of his client, those previously made, as I have referred to, and made by Mr Houghton.
The question that arises in my view is whether, having regard to the period of time involved in this matter, an Order should be made in wider terms as sought or whether I should accept the undertakings given by the parties before me and limit any Order that I should make against the Nationwide News Ltd to the limit of those undertakings.
It was conceded by Mr Houghton that there are categories of cases where to publish the name and identity of a person charged with a criminal offence is not in the public interest. He argues that this is not such a case.
It has clearly been put before me by Mr Dreyfus on behalf of his client that a vital issue in this case and with respect to his client is the issue of identification. He puts before me that if an Order was not made in the wider terms sought, there could be circumstances where a person who may have identified his client from a photograph or book of photographs may be strengthened in that identification if the name of the person is given, the identity of the person is stated or any address of that person is given. I have little doubt that in some circumstances and in people's minds, where they may have a recollection of a face of a person, when the person identifying the face of another is given further information as to who the person is, it strengthens their identification or their assurance that the person they see in the photograph is the person they saw.
In my view, having regard to the jurisdiction which this Court has and which should be exercised to ensure that in the administration of justice a fair trial is had, I should make an Order in the wider terms. It is an Order which will only last until Monday 29 October at 4.00 p.m. It is an Order which, until that point of time will put Bradley on the same terms and in the same position as other accused. I am of the view that not to make an Order in broader terms may well lead to the risk that the committal hearing and thereafter, if charged and committed for trial, the trial of the applicant may be prejudiced or jeopardised. Having regard to the shortness of the period of time in particular, that is involved in this matter, and also having regard to the fact that as at 29 October 2001 the magistrate will have jurisdiction in this matter before him to deal with any matter that can then be dealt with relevant to identification by a witness, I consider it is appropriate that I should make the Order sought.
Accordingly, I order that the Australian Broadcasting Corporation, the Herald & Weekly Times Ltd., Nationwide News Ltd., The Age Company Ltd., be restrained until 4.00 p.m. Monday 29 October 2001 from publishing any information which may identify Terry Bradley as a person charged with criminal offences for which he is bailed to appear before the Magistrates' Court at Melbourne on 29 October 2001.
(Discussion ensued regarding costs.)
I will order that any question of costs be adjourned for further hearing, reserving to the parties liberty to apply on written notice.
(Discussion ensued regarding notification to Nationwide News Ltd.)
I direct the Court's Information Officer to communicate, as soon as practicable, with Nationwide News Ltd and inform it of the Order made by me this day.
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