Cooper v Herald & Weekly Times Pty Ltd
[2013] VSC 589
•18 January 2013 (Revised 29 October 2013)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
| SIMON COOPER | Applicant |
| v | |
| HERALD & WEEKLY TIMES PROPRIETARY LIMITED THE AGE COMPANY LIMITED FAIRFAX MEDIA PROPRIETARY LIMITED | First Respondent Second Respondent Third Respondent |
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JUDGE: | FERGUSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 January 2013 | |
DATE OF RULING: | 18 January 2013 (Revised 29 October 2013) | |
CASE MAY BE CITED AS: | Cooper v Herald & Weekly Times Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 589 | |
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CRIMINAL PROCEDURE – Application for non-publication order – Publication on websites before application made – Applicant suffering from severe mental illness – Risk of self harm – Inherent jurisdiction to make order – Whether order necessary to avoid prejudice to the administration of justice and not to endanger Applicant’s physical safety – Orders not necessary – Lack of utility of orders given earlier publication on the internet.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC | Tony Hargreaves & Partners |
| For the First Respondent | Mr J Quill (Solicitor) | Kelly Hazell Quill Lawyers |
| For the Third and Fourth Respondents | Mr D Poulton (Solicitor) | Minter Ellison Lawyers |
HER HONOUR:
Last evening the applicant sought urgent non-publication orders in respect of his name and identity. I dismissed the application and said that I would deliver my reasons today. These are those reasons.
The applicant was charged two days ago with a number of serious offences. Mr Patrick Newton provided a medical report of 17 January 2013 and gave oral evidence about the applicant’s mental health. In summary, his evidence was that the applicant is suffering from a severe mental illness and that if his identity and the charges are publicised, there is a risk that the applicant will harm himself and this risk is likely to increase the longer and more widespread the publication is. Mr Newton also gave evidence that the applicant is receiving treatment and that some measures are in place to protect the applicant from taking action which is detrimental to his well-being.
At approximately 3:30pm yesterday, an article appeared on the Herald Sun website that identified the occupation of the applicant, his age and the suburb in which he lived and stated that he had been charged. The applicant’s name was not included in the publication. Approximately one hour later, an article appeared on The Age website which named the applicant, gave his age, the suburb in which he lived, included his photograph and stated the nature of the charges against him. Shortly after that, a similar article appeared on the Herald Sun website.
A filing hearing had been scheduled for today in the Magistrates’ Court. The applicant had intended to make application for non-publication orders on that occasion under s 126 of the Magistrates’ Court Act 1989 (Vic). However, with the publication of the website articles yesterday afternoon, the applicant attempted to have the non-publication application heard by the Magistrates’ Court late yesterday afternoon. That attempt at an early hearing was unsuccessful and the applicant applied to this Court.
The applicant sought non-publication orders in respect of his name and identity and the evidence given in the application for such orders. In addition, the applicant sought an order for the removal of the articles from The Age and Herald Sun websites. The applicant relied on the Court’s inherent jurisdiction to make such orders. The applicant submitted that as part of the Court’s supervisory role of ensuring that there is no abuse of process and no unfairness in proceedings in inferior courts and to ensure the proper administration of justice, the Court had power and should make the orders sought. Both the Herald and Weekly Times Proprietary Limited (“HWT”) and The Age Company Limited, as publishers of the Herald Sun and The Age respectively opposed the application but did not dispute the Court’s power to make the orders.[1]
[1]As to some observations as to the scope of the Court’s inherent jurisdiction to make non publication orders, see Digital News Media Pty Ltd v Mokbel [2010] VSCA 51.
Counsel for the applicant submitted that the order should be made because it was necessary to do so in order not to prejudice the administration of justice and not to endanger his physical safety. Those are matters that the courts are required to consider if the application is made under s 18 of the Supreme Court Act 1958 (Vic)[2] or s 126(2) of the Magistrates’ Court Act 1989.[3] Whilst the application was not based on those provisions, in my opinion, in this case, they are relevant matters to consider when determining whether or not non-publication orders should be made.
[2]Supreme Court Act 1986 (Vic) ss 19(b), (c).
[3]Magistrates’ Court Act 1989 (Vic) ss 126(1)(b), (c).
Counsel for the applicant submitted that it must be the case that if the evidence of Mr Newton was accepted, that the administration of justice would be prejudiced if no orders were made as publication of the applicant’s name and identity would lead to the risk of self-harm of the most serious kind. Further, counsel contended that the evidence supported a finding that without such orders, the applicant’s physical safety would be endangered. In short, counsel contended that the test of necessity must depend on the facts of the case and this was an exceptional case. The applicant relied on the decision in Herald and Weekly Times Proprietary Limited v Director of Public Prosecutions (Vic).[4] In that case, a County Court judge had refused to vacate a non-publication order that he had made previously. The order prohibited publication by the media of any matter which might directly or indirectly refer to or enable identification of any person concerned in the proceedings or of any photograph or picture as being a representation of any person concerned in the proceedings. The non-publication order was made on the basis that it was necessary to do so in order not to prejudice the administration of justice or endanger the physical safety of the accused (who was a police informer). Among other things, the Herald and Weekly Times claimed relief in the nature of certiorari. Kaye J referred to the importance of the principle of open justice in our system of justice. His Honour observed that ‘it is for that reason that courts construe narrowly and strictly any statutory provision which permits the suppression of publication of their proceedings.’[5] His Honour said:
… as a corollary of the importance of the principle of open justice, the courts have recognised that, in determining whether a statutory criterion for making a suppression order has been made out, a high level of satisfaction must be achieved as to the existence of the conditions which are necessary for making the suppression order.[6]
[4](2007) 170 A Crim R 313.
[5]Ibid [22].
[6]Ibid [23].
Kaye J also noted that ‘there is no universal rule that in every case, direct evidence must be led from a witness attesting to the level of danger which might be occasioned to a particular person, should a suppression order not be made.’[7]
[7]Ibid [36].
The primary submissions of HWT and The Age were that -
(1)there was no utility in making the order as the publication had already occurred on the websites and, given the passage of time since their publication, I ought infer that publication of the applicant’s name and identity had become more widespread through not only the print media but also radio, television, the internet and social media;
(2)it is only in exceptional circumstances that it is necessary to make the type of orders sought and this was not such a case. Any risk to the applicant’s wellbeing was best dealt with not by a non-publication order but, rather, by appropriate medical treatment which the applicant is obtaining and by appropriate protection measures which Mr Newton had alluded to in his evidence as having been put in place.
HWT and The Age relied on the decisions in R v Pomeroy[8] and Herald and Weekly Times v Magistrates’ Court of Victoria.[9] In R v Pomeroy,[10] Teague J revoked an earlier non publication order that he had made. The accused was charged with manslaughter. He was a gigolo. The victim, who was his client, had been asphyxiated during intense drug-affected sexual activity. The non publication order had prohibited publication of the identity of the victim and an aspect of the work of the accused. In considering s 19 of the Supreme Court Act, his Honour said:
There can be no doubt that because of the word ‘necessary’ in Section 19, the bar must be very high. It will be reached only in wholly exceptional circumstances. The requirement of necessity is an integral part of other exceptions to the open justice principle.[11]
[8][2002] VSC 178.
[9][1999] 2 VR 672.
[10][2002] VSC 178.
[11]Ibid [11].
Teague J considered the danger of injury to the accused in prison if the fact that the accused worked as a gigolo was published. His Honour was not satisfied that there was a clear risk of significant extra danger that would warrant the continuation of the order he had made earlier.
In Herald and Weekly Times v Magistrates’ Court of Victoria,[12] Beach J considered whether non publication orders made by a Magistrate ought be quashed. One of the matters that the Magistrate had taken into account was the embarrassment that publication would cause the accused and the victim. Beach J held that embarrassment is not a relevant factor when considering whether a non-publication order should be made. In this regard, his Honour quoted with approval the following passage from the decision of Kirby P in John Fairfax Group Pty Ltd v Local Court of New South Wales:[13]
It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms: see, eg. David Syme & Co. Ltd. v. General Motors-Holden's Ltd. (at 307); Raybos Australia Pty. Ltd. v. Jones (at 58); R. v. Chief Registrar of Friendly Societies; Ex parte New Cross Building Society[1984] QB 227 at 235; R. v. Bromfield, Malcolm CJ (at 22); Rockett v. Smith, per Derrington J. (at 7). A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open justice system. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.[14]
[12][1999] 2 VR 672.
[13](1991) 26 NSWLR 131.
[14]Ibid 142.
The policy matters associated with non-publication orders were described by Warren CJ and Byrne J in Digital News Media Proprietary Limited v. Mokbel[15] in the following terms:
Superior courts have long asserted the power to prevent the publication of proceedings or parts of proceedings before them where justice requires that this be done. Such an order brings into play two very important policy matters. The requirement that justice be administered in public and the requirement that justice be administered. In the context, such as the present, the latter principle includes a requirement that an accused person is entitled to a trial conducted in accordance with the law by an impartial tribunal. The former principle which has been described as the cornerstone of our judicial system means that the work of the courts is to be performed under public scrutiny. This being a powerful safeguard against the risk of their abusing their power or departing from the stricter standards of impartiality. In the modern environment the media, as the eyes and the ears of the general public, play an important part in this by the fair and accurate reporting of court proceedings they ensure that the public, who may not be able to attend the hearing, are kept informed of the functioning of the court process. The importance of this principle is such that the making of an order restraining, restricting or postponing the reporting of a court proceeding or any part of a court proceeding is exceptional, and in general will be made only where it is necessary to preserve the integrity of the court process, to ensure that the process can function properly or to protect the privacy or confidentiality of very limited kinds. These include confidentiality with respect to trade secrets or confidential information where the trial publicity might defeat the purpose of the litigation and confidentiality with respect to police informers where it might jeopardise this source of police intelligence.
The second type of order which we have referred to as a general suppression order is directed to the same objective, namely to protect and preserve the court process. That the countervailing principle is not the preservation of open justice it is that of free speech or the public’s right to know. The public has a right to know about the matters that lie within their legitimate area of interest and the media have a right to disseminate information presumably to satisfy this right to know. A moments reflection, however, will demonstrate that this countervailing principle will assume a greater or lesser importance depending upon the subject matter of the information. This information may at one end of the spectrum concern the performance of the functions of those in the highest office and at the other, no more than salacious gossip about personal shortcomings of the less lofty.[16]
[15][2010] VSCA 51.
[16]Ibid [35]-[36].
In my opinion, in this case, the applicant has not established that it is necessary to make a non-publication order. Whilst I accept that the applicant is suffering from a severe illness and that there is a risk of self-harm which may be exacerbated by publicity, he is receiving expert care and treatment with protective measures being put in place. In those circumstances, I cannot be satisfied that the non-publication orders are necessary to ensure that the physical safety of the applicant is not endangered. Nor can I be satisfied that they are necessary to ensure that there will not be prejudice to the administration of justice.
Further, given the publicity that there had already been and the nature of it, I accept that it is very likely that publication of the applicant’s identity at the time of the application was more widespread than the readership of The Age and the Herald Sun online services and that it would be difficult, if not impossible, to stem further publication. In those circumstances non-publication orders would have little, if any, utility in this case.
HWT made additional submissions primarily based on other public policy considerations. In view of the conclusion that I have reached and the urgency of the matter I do not propose to deal with those additional submissions.
For these reasons I dismissed the application for non-publication orders.
I would only add that I have specifically not described in detail in these reasons the evidence that was given by Mr Newton, as it is not necessary to do so, and the evidence is of a personal nature. However, I would make it clear that I have had regard both to Mr Newton’s written report and to the oral evidence that he gave in reaching my decision.
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