Bravehearts Inc v County Court of Victoria
[2010] VSC 410
•7 September 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. 9830 of 2009
IN THE MATTER of Order 56 of the Supreme Court(General Civil Procedure) Rules 2005
and
IN THE MATTER of a trial between The Queen v Arno Fisher No. CR-09-00033
and
IN THE MATTER of Orders made during the trial by His Honour Judge McInerney on 1 September 2009 and 8 September 2009 being “Prohibition of Publication of Reporting in respect of ‘White Balloon Day 2009’”.
BETWEEN
| BRAVEHEARTS INC | Plaintiff |
| and | |
| THE COUNTY COURT OF VICTORIA | Defendant |
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JUDGE: | EMERTON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 August 2010 | |
DATE OF JUDGMENT: | 7 September 2010 | |
CASE MAY BE CITED AS: | Bravehearts Inc v County Court of Victoria | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 410 | Revised 20 September 2010 |
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ADMINISTRATIVE LAW – Application for review of suppression orders – discretionary relief – County Court Act 1958 (Vic) s 36A(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr K. Hanscombe SC with Ms F. McKenzie | DLA Phillips Fox |
| For the Defendant | Mr D. Masel | Victorian Government Solicitor |
HER HONOUR:
The plaintiff, Bravehearts Inc, is a well known organisation dedicated to raising awareness of and preventing the sexual assault of children. To this end, it carries out and facilitates community education and awareness programs. Once a year, on the Tuesday in National Child Protection Week, Bravehearts conducts its White Balloon Day. This is its major fundraiser involving the sale and display of white balloons in communities throughout Australia. It involves the printing and distribution of promotional and fundraising materials such as balloons, posters, badges, car flags, print and audio advertisements and flyers with the text “White Balloon Day” or with messages reflecting the aims of White Balloon Day, such as “It’s all white to say no”. White Balloon Day involves an extensive national media campaign.
In 2009, the White Balloon Day national media campaign was disrupted when a judge of the County Court made orders which, among other things, prohibited the distribution or display of flyers headed “Fly a White Balloon Day 2009” in the City of Wangaratta. An order was initially made on 1 September 2009 (the ‘first order’) one week before White Balloon Day 2009; the first order was varied by a second order made on White Balloon Day itself, 8 September 2009 (the ‘second order’) (collectively, the ‘Orders’).
The proposed White Balloon Day activities came to the judge’s attention during the County Court criminal circuit in Wangaratta in September last year. White Balloon Day 2009 was scheduled to fall in the middle of the trial R v Fisher, which concerned the sexual abuse of three children many years earlier and in which the complainants’ credit was to be a central issue. His Honour learned pamphlets or ‘flyers’ were being or were to be distributed which made reference to one in five children under the age of 18 being the victims of sexual abuse and stating that children rarely made up allegations of abuse.
On 28 October 2009, Bravehearts filed an originating motion seeking relief in the nature of certiorari quashing the Orders and/or declarations that the Orders were unlawful. However, Bravehearts did nothing to bring its originating motion on for hearing until 16 August 2010, when it filed its summons and affidavit in support, and made an application for a speedy hearing on the basis that White Balloon Day 2010 was rapidly approaching.
White Balloon Day is to take place on 7 September 2010. Bravehearts says that it needs some certainty about its ability to carry out its planned activities on White Balloon Day 2010 in the light of the Orders, which, although now spent, have created uncertainty about its ability to conduct the White Balloon Day campaign. It therefore seeks to have this Court rule on the lawfulness of the Orders.
The issues raised by the notice of motion for determination by the Court are:
(a)whether the Orders were authorised by s 36A(3) of the County Court Act in that they were required to ensure the fair and proper conduct of the trial in question;
(b)whether the Orders were too vague and uncertain to be authorised by s 36A(3);
(c)whether the Orders were based upon irrelevant considerations, were not based upon relevant considerations, were made upon no basis at all or were such as no reasonable judge could have made;
(d)whether the first order was made in breach of the rules of natural justice either because Bravehearts was not given an opportunity to be heard before it was made or because there was a reasonable apprehension of bias arising from statements made by the trial judge at the time of making the first order;
(e)whether the second order was made in breach of the rules of natural justice because the statements made by the trial judge when making the first order were not disavowed when he made the second order.
Bravehearts concedes that the Orders only restrained its conduct for a limited period, and are now spent. It also concedes that it has left it very late to bring the matter before this Court for determination. This raises the question whether any relief that this Court may grant should, as a matter of discretion, be granted. The Court should not grant relief if there is no utility in doing so.
The circumstances in which the proceeding has come before the Court require it to deliver its decision in less than one week, that is, on or before 7 September 2010. This stretches the resources of the Court, especially as Bravehearts has raised not just one or two, but eleven, complex grounds for review. However, for the reasons that follow, it is has not been necessary to determine each of these grounds. The proceeding can be determined on the single ground that the Orders were wider than was necessary to ensure the fair and proper conduct of the Fisher trial.
In the light of Bravehearts’ request for a speedy determination as well as a speedy trial, the reasons that follow are necessarily brief.
Facts
On the morning of 27 August 2009, the trial judge was sitting in a criminal trial on circuit in Wangaratta. His Honour briefly mentioned to the prosecutor and defence counsel the case of Fisher that was due to come on before him the following week. He said that he had seen a flyer indicating that “some celebration” or “some program” was to take place that he thought was initiated by CASA (Victorian Centres Against Sexual Assault). His Honour said he would not be prepared to adjourn a case because of such a program and that he would instruct a jury accordingly. However, if there was the potential for the trial to be ”impinged upon”, he would take steps. He urged the prosecutor to talk to whoever was involved and indicate to them that ”it was not to happen” and that he would make ”an order” if it did.
In this context, his Honour commented that CASA should have more sense than to send out flyers of the relevant kind while trials were running. When told that individuals would also be asked to fly white balloons he said, “They won’t be flying white balloons while I’m in town, simple as that”. His Honour made a series of comments to the effect that CASA ought to have known better. When it was suggested that CASA might not have known there was a criminal circuit in Wangaratta at that time, he said, “They should have taken steps to know. They’re close enough to the circumstances to know”.
After lunch on that day, the issue was again raised, and his Honour was told that the program in question was a national program. He said, “All we can do is [to] take some steps locally to reduce the impact”. There followed some discussion that there might be something on TV and in The Age or the Herald Sun, as well as in the local paper. His Honour expressed his confidence in the robustness of juries and in the ability of a judge to give a direction. His Honour, clearly still under the misapprehension that CASA was behind the program, said, “We can’t be in a position where everyone has to adjourn cases, that’s just ridiculous, because some non-court related organisation decides to have a day”. His Honour referred to the possibility of steps being taken to stop the event being “prominent in this city as against the rest of Australia”.
The following day, 28 August 2009, the trial judge again mentioned “this white balloon business”. His Honour asked the prosecutor to contact relevant organisations and tell them, “… it’s not to take place. And if you don’t do it, I’ll have the Registrar do it”. He said he would have the Registrar ring the appropriate authorities if the DPP was not prepared to do anything.
The issue next arose on the first day of the trial of Mr Fisher, immediately following the filing of the presentment. Mr Fisher’s counsel formally made application to adjourn the trial. He said he had noticed flyers for White Balloon Day in the town, including in the front window of the local Federal Member, in two cafés, in the Bull’s Head Tavern and in a retail shop. This was all in just one block. His Honour immediately asked for the Registrar to come into the courtroom and asked the Registrar who he should address an order to. He said that he would make an order and that the prosecutor should organise for appropriate police service of the order on any shop that had the flyers showing. His Honour described the issue as one of anticipated contempt and said that s 36A(3) of the County Court Act was the section under which he would make an order.
It appears from the transcript that the trial judge then vacillated briefly between not making an order and simply issuing warnings, and making an order. His Honour resolved to make the order and dictated a form of order to his associate. The following exchange then took place between the bench and counsel:
MR MORGAN (Counsel for the accused): Your Honour, could I just raise one thing just before the order is signed? The jury pool is gathered from quite a large region, stretching to Rutherglen to Whitfield, to north south, and Yackandandah to …
HIS HONOUR: Yes, well I can’t injunct the whole country. So we’ll just rely on the jury being told what they’re being told when they’re in the City of Wangaratta, the important thing is that they’re not imposed upon.
MR MORGAN: Yes.
HIS HONOUR: And I’ve got total confidence that the jury will do what they’re told. So can I indicate to you, Mr Morgan, that in regard to this issue I think the steps that I can take in addition to relying on the jury should be sufficient to ensure this trial can proceed so your client receives justice. So I would not be inclined to grant you an adjournment.
The transcript shows that a short time later the Registrar came into court to advise his Honour that the police would be distributing the order (being the first order) and that it would be sent through to the local paper as well. His Honour agreed that the local paper was enjoined because he had said “publication in Wangaratta”. He could not do anything about The Age or the Herald Sun but he would instruct the jury accordingly. However, people flying balloons and/or sending brochures was simply not to happen “in this town”. His Honour expressed further disappointment about the conduct of CASA, as he was plainly still under the misapprehension that the White Balloon campaign was being undertaken by CASA.
The order that was made on 1 September 2009 – the first order – was in the following terms:
Order pursuant to section 36A(3) of the County Court Act 1958 that no person shall publish in the City of Wangaratta any material or do any other thing which may impinge upon the fair and proper conduct of the above trial. In particular, no person from this day forward shall distribute flyers headed ‘Fly a White Balloon Day 2009’ or flyers headed with words to that effect, nor display such or any like flyers in the City of Wangaratta nor display white balloons in support of such supposed day in the City of Wangaratta.
Ms Hetty Johnston on behalf of Bravehearts deposed that a copy of the first order was faxed through to the national headquarters of Bravehearts in Queensland on 1 September 2009. On the morning of Wednesday 2 September 2009, she telephoned the County Court in Wangaratta and spoke to a person in the Registrar’s office. She was informed that the injunction was real. Steps were then taken by her to identify the community group in Wangaratta that was planning to conduct White Balloon Day in that community.
On 4 September 2009, Sandip Mukerjea of Minter Ellison Lawyers in Victoria contacted Ms Johnston and explained that he was aware of the injunction and was concerned that the White Balloon Day campaign not suffer any damage and that it still be reported on by the general media. He offered to represent Bravehearts on a pro bono basis and to travel to Wangaratta to apply to have the first order revoked or amended to make it clear that it did not affect activities or media outside the City of Wangaratta.
Mr Mukerjea did in fact travel to Wangaratta and was heard by the learned trial judge after court on the Monday afternoon, 7 September 2009.
His Honour ruled on Mr Mukerjea’s application to have the first order vacated the following day, 8 September 2009. He determined not to vacate the first order, but to “tighten and confine” the order. In tightening and confining the first order, his Honour made the second order, which was in the following terms:
Order pursuant to s 36A(3) of the County Court Act 1958 that no person shall publish in the City of Wangaratta in support of White Balloon Day 2009, any material or do any other thing which may impinge upon the fair and proper conduct of the above trial.
In particular, no person, including Bravehearts (Inc) and Upper Hume Community Health Service, in support of White Balloon Day 2009 from this day forward shall distribute flyers headed ‘Fly a White Balloon Day 2009’ or flyers headed with words to that effect, nor display any such or like flyers in the City of Wangaratta nor display white balloons in support of such day in the City of Wangaratta.
This order shall apply for the duration of this trial.
In his ruling, his Honour said he had made the second order to ensure the fair and proper conduct of the proceedings, mindful of the small size of the City of Wangaratta, the location of the court within its commercial complex and the necessary dispersal, “the coming and going”, of the jury within that complex. In order to ensure the fair and proper conduct of the criminal proceeding, to protect the jury’s integrity, and – particularly insofar as the accused was concerned – to ensure that justice was seen to be done, he had determined upon the need for such an order.
The trial judge reviewed the authorities to which he had been referred by Mr Mukerjea. Although he said he did not accept that the first order was akin to an anticipatory contempt order, he accepted that the principles that were referred to by the Court of Appeal in Herald and Weekly Times, The Age & Ors v Carl Williams[1] were guiding principles for any order made by the court which affected people’s rights. The principles in Hinch v Attorney-General for Victoria[2] were also appropriate to be taken into account in consideration of Mr Mukerjea’s application. Likewise, he accepted that the principles in Ex parte Bread Manufacturers Pty Ltd[3] were applicable in the case before him. He stated, correctly, that the court should not prohibit the legitimate public discussion of matters of public interest (including what takes place in the courts) unless there was a substantial risk that it would interfere in the administration of justice. The degree of risk had to be assessed in the context of the considerable confidence that the courts have that juries are responsible and do comply with the directions of trial judges and scrutinise the evidence before them, unaffected by pre-trial publicity. His Honour concluded:
Upon further consideration, in particular taking into account Mr Mukerjea’s submissions, the affidavit material and the authorities he has referred to, I find that there is no basis whatsoever for me to vacate the order. I consider it is necessary in the particular circumstances and within the particular framework of this trial, being a particularly difficult sex trial relating to allegations which occurred allegedly some thirty years ago and involving allegations against young children, and the particular circumstances of this trial and the circumstances of it being conducted in the City of Wangaratta and its locale. I have conducted many trials in this city and am most conscious of the jury’s immediate connection and need to immediately make contact with the commercial area of Wangaratta. I have deemed it inappropriate and a risk to the maintenance of the integrity of the jury for the jury in such a case to come into contact with the proposed material, pamphlets and balloons which it was suggested would be displayed. I consider that I should maintain such order to ensure that the risk of a jury being compromised is eliminated if possible. I find such risk is not just incidental to any particular behaviour but a real and grave risk to justice being served in this case. In balancing the need of the community to be able to discuss and promote and talk about issues of importance, I do not think, and have concluded that my order does not in any way, albeit its limited operation in Wangaratta, interfere with that right in the slightest.
[1][2005] VSCA 189.
[2](1987) 164 CLR 15 (‘Hinch’).
[3](1937) 37 SR (NSW) 242 (the ‘Bread Manufacturers’ Case’).
Later that day, Detective Senior Constable Curtain saw a number of white balloons posted on lamp posts not far from a café where jurors in the Fisher trial were eating. He saw a female out the front of the café with balloons. He spoke to her. She said she was protesting against the justice system. Ms Jennifer Pietch was later charged with contempt of court as a result of placing white balloons and flyers in support of White Balloon Day in locations in Wangaratta in close proximity to the court. On 18 September 2009, Ms Pietch was found guilty of contempt. However no conviction was recorded against her.[4]
[4]Ms Pietch was ordered to pay a fine in the sum of $2,000 with a stay of 12 months.
Were the Orders unlawful?
The Orders were made under s 36A(3) of the County Court Act which provides:
(3)The court has the same jurisdiction, and may exercise the same powers and authority, to grant an injunction in a criminal proceeding restraining a person from publishing any material or doing any other thing to ensure the fair and proper conduct of the proceeding as the Supreme Court has and may exercise in respect of a criminal proceeding in the Supreme Court.
The power of the Supreme Court to grant such an injunction is not at large. There must be a real and definite tendency to prejudice or embarrass pending proceedings.[5] The question is whether any of the material published could properly be regarded as having such a relation to the charges pending against the accused that it tended to prejudice or interfere with a due and fair determination of the guilt or innocence of the accused.[6] Further, in the case where the activity is not intended to interfere with the proceeding, the court must balance the right to conduct that activity with the rights of the relevant parties to the trial.[7]
[5]John Fairfax & Sons Pty Ltd v McRae (1954) 93 CLR 351, 370-372.
[6]Ibid 369.
[7]Bread Manufacturers’ Case (1937) 37 SR (NSW) 242, 249; Hinch (1987) 164 CLR 15, 18-19.
Bravehearts submits that the trial judge lacked authority to make the Orders for the following reasons –
· First, the trial judge did not find that the display of balloons and the handing out of the pamphlets would have any effect on the fair and proper conduct of the trial, and there was no evidence before him of any such potential effect.
· Secondly, even if his Honour had found that the activities of White Balloon Day could have constituted an anticipated contempt, as there was no evidence that Bravehearts or any other person associated with White Balloon Day intended to interfere with the Fisher trial, his Honour was required to balance relevant interests before deciding whether or not to issue an injunction.
· Thirdly, even if there had been a real perceived effect on the fair and proper conduct of the Fisher trial, the Orders were not necessary to ensure the fair and proper conduct of the trial. It would have been sufficient to give an instruction to the jury.
It is clear that his Honour formed the view that the White Balloon Day activities in Wangaratta would have an effect on the fair and proper conduct of the Fisher trial. His Honour referred to jurors being imposed upon outside the court building. The material that might be imposed upon them apparently contained assertions about the incidence of child sexual abuse and the credibility of child complainants. Although his Honour expressed his confidence in the ability of juries to follow directions given by the court and resolved to give the jury a direction in relation to the White Balloon Day material, it appears from the transcript and the ruling that the his Honour formed the view that both a jury direction and orders prohibiting relevant activities in the City of Wangaratta were necessary to ensure the fair and proper conduct of the Fisher trial. Given the nature of the issues in the trial, the material that was being distributed and the way in which jurors would be exposed to it, his Honour determined that both a direction and an order restraining certain conduct were necessary to ensure that Mr Fisher obtained a fair trial.
Bravehearts pointed out, correctly, that there must be some objective basis for forming the view that the restraint is necessary. It complains that there were no facts supporting a conclusion that there was a threatened contempt and that it was necessary to make restraining orders in order to ensure the fair and proper conduct of the Fisher trial. In particular, Bravehearts submitted that there needed to be a nexus between the conduct of the White Balloon Day activities and the Fisher trial. It submitted that the White Balloon Day activities and pamphlets were so general that they could not possibly constitute a threatened contempt: no mention was made of Mr Fisher, the complainants, the trial, or even of Wangaratta.
I do not accept the broad proposition that the trial judge could not have had any basis for making the Orders unless the activities or material made reference to the parties, the witnesses, the events or the specific issues in the Fisher trial. In my view, general statements about the high incidence of child abuse in the community and the reliability of complaints made by children could, in some – albeit limited - circumstances, give rise to a real and substantial risk that an accused in Mr Fisher’s position would not receive a fair trial. It was not necessary for the material to have proclaimed, “Arno Fisher is guilty”, or words to that effect, for that risk to have arisen.
In Nationwide News Pty Ltd v Robert Donald William Farquharson & Director of Public Prosecutions,[8] the Court of Appeal considered an application for leave to appeal from an order made by a judge of the Trial Division of this Court suppressing publication of an article proposed for publication the following day in a national newspaper. The article was concerned with the murder of a young child by his father and the father’s subsequent trial for murder. Mr Farquharson was being tried for the murder of his three young sons. Lasry J suppressed publication of the article on the basis that there was a real and substantial risk of prejudice to the fair trial of Mr Farquharson and an interference in the course of justice in that case.
[8][2010] VSCA 131 (‘Farquharson’).
According to Maxwell P, the question which would have arisen on appeal was whether it was reasonably open to the trial judge to reach the conclusion that he did.[9] That this was the correct approach was clear from the decision of the Court of Appeal in General Television Corporation Pty Ltd v Director of Public Prosecutions.[10] The view of the trial judge had to be accorded considerable weight. Nettle JA observed that a decision of the kind which the trial judge was required to make, although one of fact, was essentially discretionary. It involved a fact/value assessment of whether, in the particular circumstances of the case, publication of the article would create a real and substantial risk of prejudice to the fair trial of the accused.[11] Once it was accepted that the matter was one which involved a fact/value analysis, and that the trial judge was better placed to make an assessment than an appellate court, the appellate court should be slow to intervene.[12]
[9]Ibid [8].
[10](2008) 19 VR 68, [35], [56] (‘Underbelly case’).
[11]Farquharson [2010] VSCA 131, [19].
[12]Ibid [22].
The trial judge’s decision in Farquharson was not amenable to judicial review; being a decision of a superior court, it could only be challenged on appeal. The Court of Appeal was therefore asked to adjudicate in a different form of challenge to the one presently under consideration. However, the observations of the Court of Appeal about the nature of the decision that the trial judge is called upon to make are apposite. It involves an exercise of judgment. The court on review should not rush to conclude that the order was unnecessary to ensure the fair and proper conduct of the trial if the trial judge, with his or her more intimate knowledge of the issues and evidence in the trial and, indeed, particular circumstances that may make the jury more vulnerable to influence, has concluded that such an order was necessary to ensure the fair and proper conduct of the proceeding.
In this case, the trial judge formed the view that, given the nature of the Fisher trial and the questions of fact that arose for determination in it, the exposure of members of the jury to certain of the messages of White Balloon Day when they left the courtroom for lunch, while they were having their lunch and while making their way to and from court in the morning and evening, would give rise to a real and substantial risk of prejudice to the trial of Mr Fisher and to a perception that he was not receiving a fair trial.
It appears, however, to be the case that the Orders were made in terms that were wider than the trial judge intended. In setting out the relevant facts, I have referred to passages of transcript in which the trial judge explained that he intended to confine the Orders to things done within the City of Wangaratta. The core of his concern was apparently that messages or material not be repeatedly ‘imposed’ upon jurors in the local café during their lunch breaks and while they were making their way to or from the court. He apparently intended to enjoin the local newspaper, but he did not intend to enjoin The Age, the Herald Sun or Channel 9; indeed, his Honour thanked Chanel 9 when he learned that it had apparently voluntarily refrained from broadcasting an interview with Ms Johnston.
As a result, I must conclude that the trial judge himself did not consider that it was necessary to restrain White Balloon Day activities outside the City of Wangaratta and to compromise the national media campaign in order to ensure the fair and proper conduct of the Fisher trial. However, the first order and the first paragraph of the second order are drawn in such wide terms that any of Channel 9, The Age and the Herald Sun could reasonably have concluded that, as a result of the Orders, they were constrained in their ability to report on White Balloon Day generally.
As the Court of Appeal said in the Underbelly case,[13] the jurisdiction to make non-publication orders extends no wider than is necessary to secure the object of ensuring that justice is done.[14] Given the trial judge’s concerns, the Orders were too widely drawn. On this basis, even on the trial judge’s view of what was necessary to ensure the fair and proper conduct of the Fisher trial, the Orders were not authorised by s 36A(3). Orders of more limited ambit may well have been made within jurisdiction as being necessary to ensure the fair and proper trial of Mr Fisher, but the Orders as drawn were not.
[13](2008) 19 VR 68.
[14]Ibid [62], referring to John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 476-7 (McHugh JA).
As a result, the Orders were unlawful and the originating motion can be disposed of on that basis alone. It is not necessary to consider whether his Honour failed to take into account relevant considerations or took into account irrelevant considerations, or indeed whether the making of the Orders was unreasonable in the sense that no reasonable judge could have made them.
Although it is not necessary to decide, want of procedural fairness, in the form of a breach of the hearing rule was not, in my view, made out. It is true that Bravehearts was not given a hearing before the trial judge made the first order. However, it was given an extensive hearing in relation to the first order after it had been made, and the first order was varied to become the second order as a result of that hearing. Although Bravehearts was not given an opportunity to make submissions before the first order was made, it was given that opportunity soon after. The trial judge was faced with an application for an adjournment based on what was going on in the streets outside the courtroom at the time. He was anxious to commence the trial, both in the light of the policy to deal expeditiously with sexual offences trials and the fact that the events complained of were already 30 years old. It was open to anyone affected by the order, as in fact occurred, to seek to be heard. It is clear from his Honour’s ruling that his Honour gave genuine consideration to the submissions that were made by Bravehearts as to whether the first order should be vacated.
I do not propose to deal with the question of apprehended bias, except to observe that the passages from the transcript referred to in the originating motion are, I believe, taken primarily from the hearing on 28 August 2009, when little was known about the campaign and it was wrongly attributed to CASA. The relevant passages reflect his Honour‘s evident frustration that CASA would be involved in distributing pamphlets about child sexual abuse at that time, because he considered that an organisation like CASA ought to have known better than to jeopardise a sex trial. There was no suggestion that his Honour did not bring an impartial mind to the submissions subsequently made by Bravehearts, even if he did not expressly ‘disavow’ his earlier comments.
In this context, I also observe that the trial judge’s comments about those running the campaign first informing themselves about sexual abuse cases being conducted at the time were also apparently directed to CASA, which has experience of the courts. In my view, Bravehearts is entitled to conduct its national campaign without making inquiries about the criminal listings in every court in Victoria. In the unlikely event that particular White Balloon Day activities gave rise to a threatened contempt, warnings could be issued in manner originally foreshadowed by the trial judge in this case.
Is Bravehearts entitled to a remedy?
The Orders were too wide. They were not authorised by s 36A(3) and are therefore liable to be quashed. However, the Orders were expressed to apply only for the duration of the Fisher trial[15] and they are now spent. There is arguably nothing left to set aside.
[15]The second order effectively replaced the first order.
In my view, a declaration is the more appropriate remedy. However, a declaration should not be made unless the Court is satisfied that there is some utility in doing so. Bravehearts submits that there is a live controversy as to whether what occurred on White Balloon Day 2009 was authorised by s 36A(3). It says it is entitled to know what the state of the law is in order to enable it to carry out its White Balloon Day activities in the future; it needs to know what it has to do in order to avoid the kind of ‘scramble’ that occurred last year. A declaration would resolve the controversy between the parties and have a beneficial effect of being an authority as to the scope of the jurisdiction conferred by s 36A(3).
According to Bravehearts, there is ample authority supporting the making of a declaration in a case such as this. In Alinta Asset Management Pty Ltd v Essential Services Commission (No 3),[16] Hollingworth J considered an argument that there was no utility in making a declaration concerning Alinta’s obligation to comply with regulatory requirements because Alinta was by then complying with the relevant requirements. Her Honour said:
[16][2007] VSC 353.
But that ignores the fact that the very controversy which was the subject of these proceedings was whether its activities are (and were) such as to bring it within the relevant provisions. Unless declarations are made in the terms sought by the ESC [the Essential Services Commission], the controversy between the parties (as reflected in the pleadings and the correspondence which preceded the commencement of the proceeding) will not be ‘quelled’.
I agree with the ESC that, unless those declarations are made, the following consequences would occur.
(a)It would be left open to question whether [Alinta] is positively to be treated as falling under the GIA 2001 [the relevant legislation] and the Code;
(b)There would be no binding disposition of all the matters contested in the proceeding, only an advisory opinion in the form of my original reasons for decision; and
(c)The court’s conclusion would not be stated clearly and authoritatively, in a way which might have an educative purpose for others in the industry.[17]
[17]Ibid [12]-[13].
Unfortunately, a declaration in the present proceeding will not serve the ‘educative’ purpose that was possible in Alinta, where an entity either did or did not fall within the relevant regulatory regime. A declaration that the Orders were not authorised by s 36A(3) does not mean that similar orders could not be made in the future if the particular circumstances required it. I am unable to state authoritatively, as I was invited to do by Bravehearts, that it would never be necessary to restrain the distribution of White Balloon Day materials if their content was general and no mention was made of any particular criminal trial. The fact that there was no evidence that any of the White Balloon Day activities or materials referred to the Fisher trial or to issues raised in the Fisher trial or even to issues analogous to issues raised in the Fisher trial did not necessarily deprive the County Court of jurisdiction to make an order prohibiting the distribution of White Balloon Day materials. The exposure of jurors to statements of a general kind about child sexual abuse could, in some circumstances, prejudice a fair trial.
A declaration that the trial judge was not authorised in this case to make the Orders pursuant to s 36A(3) of the County Court Act will not serve to define the scope of s 36A(3) so as to enable Bravehearts to ascertain definitively what it can and can’t do in the future for White Balloon Day. The circumstances in which White Balloon Day will in the future interact with criminal trials are unknown. As Mr Masel submitted on behalf of the defendant, the balancing of competing interests of the uninhibited conduct of activities conducted under the general auspices of Bravehearts and the right of every accused to a fair trial is not conducted in a vacuum, nor is it conducted on hypothetical facts. No declaration as to the validity or invalidity of the Orders could constrain the power of the court to respond to situations that might arise in the future. Those situations would need to be assessed on their own facts, with a view to ensuring that justice is done in each instance.
Although I think it neither possible nor appropriate to make a declaration as some kind of guide for the consideration of similar matters on a future occasion, I propose, nonetheless, to make a declaration that neither of the first and second orders were authorised by s 36A(3) of the County Court Act, as they were wider than was necessary to ensure the fair and proper conduct of the Fisher trial. The purpose for making that declaration is to dispose of the matters in controversy in the proceeding and thereby to quell the controversy between the parties.
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