Director of Public Prosecutions (Cth) v Weaver (a pseudonym) (Suppression Order)

[2024] VCC 439

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

GEORGE WEAVER (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE BERMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2024 and 11 April 2024
DATE OF REASONS:	11 April 2024
CASE MAY BE CITED AS:	DPP (Cth) v Weaver (a pseudonym) (Suppression Order)
MEDIUM NEUTRAL CITATION:	[2024] VCC 439

REASONS FOR DECISION
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Subject:CRIMINAL LAW

Catchwords: Application for proceeding suppression order — Section 17 of the Open Courts Act 2013 (Vic) — Whether order necessary to protect the safety of any person — Offender pleaded guilty to one rolled-up charge of use carriage service to make available child abuse material — Child abuse material in the form of recorded voice messages accessible by other users — Deeply disturbing content ­— Offender makes application to suppress his identity — Application unopposed by the prosecution and media organisations — Unchallenged expert evidence that the offender is at ‘significant’ risk of self-harm — Unchallenged expert evidence that the risk of self-harm would ‘greatly increase’ if his identity became public — Calculus of risk approach ­— Order necessary ­— Application granted.

Legislation Cited:      Open Courts Act 2013 (Vic).

Cases Cited:AB (A Pseudonym) v CD (A Pseudonym) (2019) 364 ALR 202; Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339;Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police [2019] VSCA 154.

Order:See [37].

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Ms N. Simpson	Commonwealth Director of Public Prosecutions
For the Accused	Mr C. Carr SC Mr P. Coleridge	Galbally & O’Bryan Lawyers

HIS HONOUR:

1On 21 February 2024, I received evidence and heard submissions in the sentence proceedings involving the offender, George Weaver.[1]  Due to my unavailability after that, it was not until today that I was in a position to sentence him.  I have just imposed a sentence of imprisonment on the offender but ordered that he be released immediately on a conditional recognizance.

[1]A pseudonym.

2On the day the plea hearing was listed before me, the offender made an application for a proceeding suppression order under s 17 of the Open Courts Act 2013 (Vic) (the Act).  One media organisation appeared on the application.[2] I did not think it appropriate for that application to be heard in advance of sentence being imposed, and so, without opposition from the media organisation then represented, I made an interim order under s 20 of the Act which would expire at the completion of the proceedings concerning the substantive application. The interim order I made was in the terms sought by the offender. It prohibited publication of, inter alia, any information derived from the proceedings which would tend to identify the offender.

[2]The Age.

3That afternoon, and the following morning, there was information published in various media concerning the sentencing proceedings which included that the offender was the brother of [REDACTED].  There was other information published about the offender too, such as that his home was in [REDACTED]. I will return to the relevance of the material which was published later in this judgment.

4These publications prompted a further application from the offender in which he effectively sought a variation of the interim order to prohibit the further publication of the fact that the offender was the brother of [REDACTED].  That application was heard on 22 February 2024.  Again without opposition from those appearing for two media organisations,[3] I granted that application.

[3]The Age and the Herald Weekly Times.

5On 5 April, that interim order was again varied at the request of the offender following the filing by him of further material concerning his mental state, such material having been filed for the purposes of the substantive application.

6Which brings me to today. What is now sought by the offender is an order under s 17 of the Act which I can only make if I am satisfied of one of the grounds in s 18. The particular ground on which the offender relies is s 18(1)(c):

[T]he order is necessary to protect the safety of any person[.]

7The offender argues that the proceeding suppression order is necessary because, so it is submitted, the publication of identifying material would have a severely adverse effect upon his mental health and increase his already significant risk of self-harm.

8The media organisations which appeared previously do not oppose the making of an order if it is in the same terms as the order I made on 5 April.

9Sometimes agreement between the parties makes the job of a judge easier.  But sometimes it makes the job harder.  The absence of a contradictor means that it is up to me to identify matters which might suggest that a suppression order should not be made before deciding whether the application should be granted. 

10It is appropriate to start consideration of this matter with the legislation.  As suggested by its name, the Open Courts Act has, as one of its main purposes as set out in s 1:

… to recognise and promote the principle that open justice is a fundamental aspect of the Victorian legal system which —

(i)   maintains the integrity and impartiality of courts and tribunals; and

(ii) strengthens public confidence in the system of justice[.]

11That those things are best achieved through a transparent system of criminal justice is easily accepted. 

12However, the legislation provides that there may need to be exceptions to that general principle because of the harm that the publication of some material may cause.  I have to consider the degree to which the order sought by the offender would encroach upon the principle of open justice.[4]  In Council of the NSW Bar Association v EFA (a pseudonym) [2021] NSWCA 339, the Bar Association was appealing against the making of an order similar to that being sought by the offender. The NSW Court of Appeal noted that:

[The] encroachment would be minimal. Such an order would not restrict publication of the salient facts of the proceedings, that a barrister was the subject of disciplinary proceedings, the nature of the conduct that underlay the disciplinary proceedings, and the outcome of the disciplinary proceedings.[5]

[4]Council of the NSW Bar Association v EFA (a pseudonym) [2021] NSWCA 339, [229].

[5]Council of the NSW Bar Association v EFA (a pseudonym) [2021] NSWCA 339, [229].

13Even with the original interim order in place, the publications of 21 and 22 February reported the salient facts of the sentencing proceedings.  And even if the offender is successful on this application there will be no impediment to any reporting of my sentencing remarks including the sentence I have just imposed, and the reasons for that sentence, as long as the offender is not identified.

14It must be remembered however, that the word “necessary” in s 18(1)(c) clearly means more than “desirable” and thus open justice, including the identification of the offender, should be the position unless the offender can persuade me that it is “necessary” for his personal safety that he not be identified.  It is not enough for the offender to say “identifying me adds little or nothing to the import of the articles the media will publish about my case”.

15And in this particular case there is a factor which tends to suggest that the “salient facts” of the sentencing exercise involving the offender include the very fact that was prominently reported in the articles published on 21 and 22 February — that he is the brother of [REDACTED].

16Maintaining the integrity and impartiality of courts and tribunals and strengthening public confidence in the system of justice is promoted by demonstrating that all are equal before the law.  This is not to hold [REDACTED] and those related to them to a higher standard, but it is to recognise that those subject to the laws of Victoria have an interest in being shown that the brother of [REDACTED] will be dealt with in the same way as the brother of a baker, a plumber or a pilot. 

17Mr Carr SC, who appears for the offender, accepts the force of this consideration, but says that it is outweighed by the very real risks to the safety of his client.

18The offender relies in particular on reports from two psychologists, Stephen Say and Patrick Newton.  They have each provided reports concerning the psychological state of the offender leading up to the sentencing proceedings on 21 February, and also how he has been since the publications of 21 and 22 February.

19The offender experiences such a deep sense of shame and hopelessness that he has already made two suicide attempts.  Naming him, or otherwise identifying him, as the offender in this case would “increase the already significant risk of self harm on his behalf” (Newton, 28 March 2024, at [15]) and “greatly exacerbate this already concerning risk” (Sayer, 29 March 2024, p2).

20On the other hand, the media publications of 21 and 22 February which prompted the application for a variation of the interim order I made on 21 February made public enough information about the offender for him to be identified by at least one person, namely, [REDACTED].  On 22 February evidence was put before me on the application to vary the interim suppression order that “[a]s a consequence of the publication of these articles, [the offender’s] business relationship [REDACTED] will cease as at 4pm …”.

21As a result of these publications, the following information was made known about the offender:

(a)   he is the brother of [REDACTED];

(b)   he is in his 60’s;

(c)   he used a chatline which is mostly used by gay and bisexual men;

(d)   he lives in [REDACTED]; and

(e)   he suffers from depression and has been receiving psychological counselling.

22The number of men who would fit that description is difficult to estimate, but it would not be surprising if others, apart from the offender’s [REDACTED], at least had their suspicions raised that the offender was the man to whom the media articles referred.

23The offender saw Mr Say on the evening of 21 February.  Mr Say noted that:

He made no immediate threats of self harm, but I know him well enough to hear in its absence the very real threat of suicide once again becoming the only way out of his unbearable circumstances.  I addressed the matter directly and put in place strategies with the aim of reducing his risk of suicide.

24Thus, the assessment of how necessary it is for the future safety of the offender that he not be identified has to take into account that he has to some extent been identified already, and that he has professional help available to him which aims to reduce the risk of self-harm.

25Today will also be the end of the process that began two-and-a-half years ago.  It is notorious that those charged with criminal offences almost invariably find the experience a highly stressful one.  And the offender has just learnt that the sentence he received does not require him to leave the court precincts in a prison truck.  He can go home tonight to be with his husband, a man who clearly cares for him and has stood by him.  As someone who is not in custody, he can readily receive professional counselling and support.

26These factors must also be considered when the risk of self-harm is being evaluated.  However, not too much should be made of them.  Mr Newton gave evidence today that he was well-aware of the matters to which I have referred, having had 28 years’ experience in the criminal justice system,  He also gave evidence that his opinion as to the risks to the safety of the offender took these matters into account.

27In Council of the New South Wales Bar Association v EFA (a pseudonym),[6] to which I have already referred, the NSW Court of Appeal endorsed the “calculus of risk” approach which requires a more nuanced consideration than the “probability of harm” approach, the former “taking into account the nature, imminence and degree of likelihood of harm to occur to the relevant person.”[7]

[6][2021] NSWCA 339.

[7]Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339, [228].

28This means that, where the harm is serious, such as in this case, the relevant necessity for the order to be made may be found more easily than in a case where the relevant harm is of lesser seriousness.

29Nettle J posed the test this way in AB (A Pseudonym) v CD (A Pseudonym) (2019) 364 ALR 202 (AB), at [15]:

… because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of "necessary to protect the safety of any person" that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.

30I note that Nettle J’s ‘calculus of risk’ approach was also endorsed by the Court of Appeal in this State in Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police [2019] VSCA 154, [119].

31I have identified earlier in this judgment the importance of identifying the offender as a means of demonstrating the integrity and impartiality of Victorian courts and strengthening public confidence in the system of justice.  However, the risk to his safety is significant.  It is not just a risk that he will suffer from depression or some other mental illness.  It is a risk that he will commit suicide.  The nature of the harm could not be greater.  Further, the likelihood that that harm will eventuate is far from fanciful or remote.  The unchallenged evidence suggests that, even if this application succeeds, the risk of self-harm is “significant” and that identifying him would “greatly increase” that risk. 

32This is one of those cases where, as the Open Courts Act itself allows for, the public interest in demonstrating the integrity and impartiality of Victorian courts and strengthening public confidence in the system of justice must give way to the personal interest of the offender himself because of the real risk to his safety that the unchallenged evidence demonstrates.

33When I apply the test as described by Nettle J in AB to the present matter, I find that the offender has established that without the order he seeks, the risk of prejudice to his safety ranges above the level that can reasonably be regarded as acceptable.

34As far as the length of the order is concerned, Mr Newton’s evidence today explained how any order which lapsed in two, five or even more years would detrimentally impact on the therapeutic treatment of the offender as the expiry of the suppression order loomed large.  The offender’s focus would shift from the treatment he is receiving to the date on which he could be identified.  It is not only in the offender’s interests, but also the community’s, that his treatment is as effective as it can be.

35In some cases, such as EFA and AB v R (No 3),[8] the suppression orders expired after 20 years, and in AB it expired in ‘not less than 15 years’.  In this case, Mr Carr seeks an order which expires on the death of his client.  Given the offender’s age, there is unlikely to be a significant difference between 20 or 15 years’ duration in the cases I have mentioned and a suppression order which expires on the offender’s death. 

[8](2019) 97 NSWLR 104.

36In such circumstances, I will accede to Mr Carr’s submission.

37Accordingly I grant the application and make orders in the following terms.

Pursuant to s 17 of the Open Courts Act 2013, the following is prohibited from publication:

(a)   Any information that directly or indirectly identifies, or that might permit the identification of, the offender [REDACTED] in connection with these proceedings, such information including information concerning the relationship between the offender and [REDACTED].

(b)   The evidence that the offender relied upon for the purpose of this application, being:

(i)the letter of Stephen Say dated 2 July 2023;

(ii)the letter of Stephen Say dated 19 November 2023;

(iii)the report of Stephen Say dated 14 February 2024;

(iv)the affidavit of Kartya Rose Gracer affirmed 22 February 2024;

(v)the report of Patrick Newton dated 28 March 2024; and

(vi)the report of Stephen Say dated 29 March 2024.

(c)   This order applies to any publication within Australia

(d)   This order shall expire upon the death of the offender.

For the purpose of this order, ‘publication’ has the meaning attributed to it by s 3 of the Open Courts Act 2013, that is to say, it means the dissemination or provision of access to the public by any means including, publication in a book, newspaper, magazine or other written publication; or broadcast by radio or television; or public exhibition; or broadcast or electronic communication.