Collard v The State of Western Australia [No 3]
[2013] WASC 70
COLLARD -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2013] WASC 70
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 70 | |
| Case No: | CIV:1772/2010 | 22 FEBRUARY 2013 | |
| Coram: | PRITCHARD J | 25/02/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for non-publication orders granted | ||
| B | |||
| PDF Version |
| Parties: | DONALD COLLARD SYLVIA RACHEL COLLARD GLENYS DALE COLLARD ELLEN THOMAS EVA JETTA WESLEY ROHAN COLLARD BEVERLEY ANNE HUMPHRIES DARRYL FREDERICK COLLARD BONNIE COLLARD MILLER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Application for nonpublication order Information concerning police investigation and evidence of crime Public interest immunity Exceptions to the rule requiring open justice Nonpublication order binds all persons present in court when the order is made or to whom the order is directed |
Legislation: | Nil |
Case References: | Attorney General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635 Attorney General (NSW) v Stuart (1994) 34 NSWLR 667 Attorney General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342 Beneficial Finance Corporation Ltd v Commissioner of the Australian Federal Police (1991) 31 FCR 523 Commissioner of Police New South Wales v Nationwide News Pty Ltd (2007) 70 NSWLR 643 Commissioner of Police NSW v Nationwide News Pty Ltd (2008) 70 NSWLR 643 Conway v Rimmer [1968] AC 910 Hogan v Hinch (2011) 243 CLR 506 John Fairfax and Sons v Police Tribunal of NSW (1986) 5 NSWLR 465 John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of NSW (1992) 26 NSWLR 131 John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 P v D1 (No 3) (2010) 202 A Crim R 40 Prisoners Review Board v Freeman [No 2] [2010] WASCA 167 R v Kwok (2005) 64 NSWLR 335 Raybos Australia Pty Ltd v Jones (1985) NSWLR 47 Re Bromfield; ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 Re Her Honour Chief Judge Kennedy; ex parte West Australian Newspapers Limited [20] WASCA 172 Re Robins; ex parte West Australian Newspapers Ltd [1999] WASCA 16 Western Australia v Christie (2005) 30 WAR 514 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First-named First Plaintiff
SYLVIA RACHEL COLLARD
Second-named First Plaintiff
GLENYS DALE COLLARD
Second Plaintiff
ELLEN THOMAS
Third Plaintiff
EVA JETTA
Fourth Plaintiff
WESLEY ROHAN COLLARD
Fifth Plaintiff
BEVERLEY ANNE HUMPHRIES
Sixth Plaintiff
DARRYL FREDERICK COLLARD
Seventh Plaintiff
BONNIE COLLARD MILLER
Eighth Plaintiff
- AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
Catchwords:
Application for nonpublication order - Information concerning police investigation and evidence of crime - Public interest immunity - Exceptions to the rule requiring open justice - Nonpublication order binds all persons present in court when the order is made or to whom the order is directed
Legislation:
Nil
Result:
Application for non-publication orders granted
Category: B
Representation:
Counsel:
First-named First Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
Second-named First Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
Second Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
Third Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
Fourth Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
Fifth Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
Sixth Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
Seventh Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
Eighth Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
First Defendant : Mr R M Mitchell SC & Mr T C Russell
(Page 3)
Solicitors:
First-named First Plaintiff : Lavan Legal
Second-named First Plaintiff : Lavan Legal
Second Plaintiff : Lavan Legal
Third Plaintiff : Lavan Legal
Fourth Plaintiff : Lavan Legal
Fifth Plaintiff : Lavan Legal
Sixth Plaintiff : Lavan Legal
Seventh Plaintiff : Lavan Legal
Eighth Plaintiff : Lavan Legal
First Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Attorney General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635
Attorney General (NSW) v Stuart (1994) 34 NSWLR 667
Attorney General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342
Beneficial Finance Corporation Ltd v Commissioner of the Australian Federal Police (1991) 31 FCR 523
Commissioner of Police New South Wales v Nationwide News Pty Ltd (2007) 70 NSWLR 643
Commissioner of Police NSW v Nationwide News Pty Ltd (2008) 70 NSWLR 643
Conway v Rimmer [1968] AC 910
Hogan v Hinch (2011) 243 CLR 506
John Fairfax and Sons v Police Tribunal of NSW (1986) 5 NSWLR 465
John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of NSW (1992) 26 NSWLR 131
John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131
John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344
P v D1 (No 3) (2010) 202 A Crim R 40
Prisoners Review Board v Freeman [No 2] [2010] WASCA 167
R v Kwok (2005) 64 NSWLR 335
Raybos Australia Pty Ltd v Jones (1985) NSWLR 47
Re Bromfield; ex parte West Australian Newspapers Ltd (1991) 6 WAR 153
Re Her Honour Chief Judge Kennedy; ex parte West Australian Newspapers Limited [20] WASCA 172
(Page 4)
Re Robins; ex parte West Australian Newspapers Ltd [1999] WASCA 16
Western Australia v Christie (2005) 30 WAR 514
(Page 5)
- PRITCHARD J:
(This judgment was delivered extemporaneously on 25 February 2013 and has been edited from the transcript.)
1 Counsel for the State has made an oral application for non-publication orders (the orders) in respect of certain information that is or may be referred to in the evidence, pleadings, submissions or orders in these proceedings. On 22 February 2013 I made the orders sought. In order that these reasons can, without a further publication order, be published so as to inform the parties and others who may be interested of the basis for my decision, what follows is expressed at a high level of generality, both in relation to the nature of the information which is the subject of the orders, and the material put before the court to establish the need for the proposed orders.
The information sought to be protected by the proposed non-publication order
2 The evidence in this trial will include evidence from two witnesses that they were sexually assaulted a number of years ago. That evidence will include evidence as to the circumstances of the alleged sexual assaults and evidence as to the identity of alleged offenders (the subject information).
3 After the trial began, counsel for the state became aware that a police investigation recently commenced in relation to the alleged assaults on one of the witnesses (the police investigation). As I understood the basis on which the state sought the orders, it was that the subject information, together with information about the existence of the police investigation, would fall within a recognised head of public interest immunity and that this constituted an exception to the principle of open justice.
4 In support of the State's application for the orders, counsel for the State called a detective constable from the Child Sexual Abuse Unit to give evidence in relation to the progress of the police investigation and as to his concerns about what consequences might follow were the subject information to be made public. As such evidence was to be given orally, rather than by affidavit, and as I was satisfied that such evidence would itself attract public interest immunity,1 I made an order that the detective
(Page 6)
- constable's evidence be taken in a closed court. That evidence has assisted me to understand the stage reached, and steps being taken, in the police investigation and to draw conclusions about the potential implications of the disclosure of the subject information or of the existence or details of the police investigation itself.
The Court's jurisdiction to make a non-publication or suppression order
5 It is a fundamental rule of the common law that the administration of justice must take place in open court and nothing should be done to limit the fair and accurate reporting of proceedings in open court.2
6 However, the rule requiring open justice is not absolute. There are exceptions to it,3 and it has long been accepted that the application of the open justice principle may be limited in the exercise of a superior court's inherent jurisdiction.4 This may be done where a departure from the open justice principle is necessary to secure the proper administration of justice.5
7 The requirement that the departure from the open justice principle be necessary to secure the proper administration of justice does not mean that if the relevant order is not made the proceedings will not be able to continue. What is contemplated is that if the kind of order proposed is not made, the result will be (or at least will be assumed to be), that particular consequences will flow and that those consequences are considered sufficiently inconsistent with the administration of justice as to warrant some departure from the open justice principle.6
(Page 7)
8 Determining the point at which the principle of open justice must give way to other public interests is a matter of evaluative judgment.7 The outcome of the balancing exercise will depend, on the one hand, on a heavy weighting in favour of publication, and on the other hand, on an evaluation of possible and often indirect consequences of a non-publication order, which consequences will usually have no immediate impact on one outcome of the particularisation.8
9 Given the fundamental importance of the open justice principle, the exceptions to it have been few. Although the categories of case are not closed, they will not be lightly extended.9
10 Considerations which give rise to a public interest immunity in particular information may warrant the limitation of the open justice principle in a particular case.10 It has been accepted that the administration of justice (for the securing of which a non-publication order may be made) can extend to the investigation and detection of crime and the obtaining of evidence against suspects.11
11 A departure from the open justice principle will be permitted only to the extent that it is necessary to secure the administration of justice and, accordingly, an established head of public interest immunity will 'trump' the open justice principle only to the extent necessary to protect the subject matter of the immunity.12 There must be some material before the court on which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. A mere belief that the order is necessary is insufficient.13
A non-publication order is warranted in this case
12 In determining whether non-publication order should be made in this case, the starting point, as I have already said, is the fundamental importance of open justice.
(Page 8)
13 On the other hand, in this case there is a powerful countervailing public interest, namely that some of the evidence in this trial is subject to a claim to public interest immunity. I accept that the information concerning the stage reached, and the matters under consideration, in the police investigation is clearly subject to public interest immunity, for the following reasons. The investigation is still in its early stages. If the evidence given in this case (in relation to the existence of the police investigation, the stage it has reached, or the steps which are being taken in the investigation) were to be published and it came to the attention of the alleged offender or offenders, that might prejudice the investigation in at least two ways. First, the alleged offender or offenders might leave the state or the country to avoid apprehension. Secondly, the alleged offender or offenders might have the opportunity to formulate a response to the allegations against them in advance of being questioned about those allegations in an interview (should they choose to participate in such an interview in due course).
14 Furthermore, given the nature of the allegations of assault themselves and the circumstances in which they occurred, I accept that evidence as to the subject information itself could, if it came to the attention of the alleged offender or offenders, raise in their minds the possibility that a criminal investigation may be commenced, or is underway, in relation to those allegations, with the same possible consequences to which I have already alluded. The publication of the subject information would, having regard to these possibilities, be inconsistent with the administration of justice.
15 Balancing this consideration against the principle of open justice I have reached the conclusion that in this case there should be a departure from that principle.
16 I reached that view because the departure from the open justice in the present case will not be substantial, having regard to the totality of the evidence, and the place of the subject information within the evidence overall at the trial. The allegations made are but one aspect of a variety of allegations made by a number of witnesses. The subject information and evidence in relation to the police investigation are likely to occupy only a small proportion of the total evidence in the trial and of the time taken to deal with that evidence in cross-examination. The imposition of a non-publication order means that all of the evidence in the trial will otherwise be heard in open court and the great majority of that evidence will be able to be published.
(Page 9)
17 In making the order that I did, I was satisfied that the terms of the order constituted a departure from the open justice principle only to the extent necessary to secure the administration of justice by protecting from disclosure the information the subject of public interest immunity. The orders do not interfere with the publication of any other evidence or information in relation to the trial.
18 The orders that I made included an order that they be served on two media outlets, one of which has obtained a copy of the pleadings and both of which have obtained a copy of a witness statement tendered as the evidence in chief of another witness. There are, or may be, some references to the subject information in this material. The court's inherent jurisdiction extends to making orders designed to suppress the further dissemination of information that may already, to some degree, have entered the public domain without there having been an earlier order prohibiting the publication of the information.14
19 Representatives of the media outlets concerned were not in court at the time the orders were made. Although doubts have been expressed in some of the authorities as to whether a non-publication order may bind the general public,15 the court's inherent jurisdiction to restrict the publication of proceedings conducted in open court supports an order which may be made to, and binds, the parties, witnesses, counsel, solicitors, media representatives or other persons present in court when the order is made or to whom the order is specifically directed.16 It was for that reason that I directed that the orders be served on the media outlets concerned so that they would be made aware of the existence of the orders.
1 The revelation of the matters the subject of a police investigation, and the steps being taken as part of that investigation may, if publicly disclosed, provide useful information to criminals about the investigation or may prejudice the future progress of that investigation, for example by assisting those involved in the commission of criminal offences to avoid detection or apprehension or to tailor their stories: Western Australia v Christie (2005) 30 WAR 514, 522 - 523 (McKechnie J); Conway v Rimmer [1968] AC 910, 953 - 954 (Lord Reid); Beneficial Finance Corporation Ltd v Commissioner of the Australian Federal Police (1991) 31 FCR 523, 527 - 528 (Burchett J); Attorney General (NSW) v Stuart (1994) 34 NSWLR 667, 675, 680 - 681 (Hunt J, Studdert J agreeing); Commissioner of Police New South Wales v Nationwide News Pty Ltd (2007) 70 NSWLR 643, [35] (Mason P, Ipp JA agreeing).
2Hogan v Hinch (2011) 243 CLR 506, 530 [20], 532 [22], 541 [46] (French CJ); Re Her Honour Chief Judge Kennedy; ex parte West Australian Newspapers Limited [20] WASCA 172 [36] - [37] (Steytler P); Re Robins; ex parte West Australian Newspapers Ltd [1999] WASCA 16 [5] - [9] (Ipp J, Pidgeon J & Steytler J agreeing); Re Bromfield; ex parte West Australian Newspapers Ltd (1991) 6 WAR 153, 164 - 165 (Malcolm CJ), 179 - 183 (Rowland J), 193 (Nicholson J); John Fairfax and Sons v Police Tribunal of NSW (1986) 5 NSWLR 465, 476 - 477 (McHugh JA), 467 (Glass JA agreeing).
3John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of NSW (1992) 26 NSWLR 131, 151 (Kirby P).
4Hogan v Hinch (2011) 243 CLR 506, 531 [21] (French CJ).
5Hogan v Hinch (2011) 243 CLR 506, 531 [21], 534 [26] (French CJ); John Fairfax and Sons v Police Tribunal of NSW (1986) 5 NSWLR 465, 476 - 477 (McHugh JA), 467 (Glass JA agreeing).
6John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131, 161 (Mahoney JA); John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344, R v Kwok (2005) 64 NSWLR 335 [13] (Hodgson JA).
7Commissioner of Police NSW v Nationwide News Pty Ltd (2008) 70 NSWLR 643, 658 (Basten JA).
8Commissioner of Police NSW v Nationwide News Pty Ltd (2008) 70 NSWLR 643, 658 (Basten JA).
9Hogan v Hinch (2011) 243 CLR 506, 531 [21] (French CJ) and the cases cited therein; Commissioner of Police NSW v Nationwide News Pty Ltd (2007) 70 NSWLR 643, 648 [36] - [37] (Mason P, Ipp JA agreeing).
10Commissioner of Police NSW v Nationwide News Pty Ltd (2007) 70 NSWLR 643, 647 [29] - [30], [40] (Mason P, Ipp JA agreeing).
11Attorney General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635, 642 [38] (Hodgson JA), P v D1 (No 3) (2010) 202 A Crim R 40, 48 [20] (Slattery J).
12Commissioner of Police NSW v Nationwide News Pty Ltd (2007) 70 NSWLR 643, 649 [43], 651 [52] (Mason P, Ipp JA agreeing).
13Prisoners Review Board v Freeman [No 2] [2010] WASCA 167 [8] - [10]; John Fairfax and Sons v Police Tribunal of NSW (1986) 5 NSWLR 465, 477 (McHugh JA), 467 (Glass JA).
14Commissioner of Police NSW v Nationwide News Pty Ltd (2007) 70 NSWLR 643, 649 [43] (Mason P, Ipp JA agreeing).
15Raybos Australia Pty Ltd v Jones (1985) NSWLR 47, 57 (Kirby P); Attorney General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342, 348 (Mahoney JA).
16Hogan v Hinch (2011) 243 CLR 506, 532 - 534 [23] - [26] (French CJ).
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