Director of Public Prosecutions v David Bowden (a pseudonym)

[2021] VCC 1247

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Director of Public Prosecutions	Plaintiff
v
David Bowden (a pseudonym)	Defendant

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2021
DATE OF RULING:	2 September 2021
CASE MAY BE CITED AS:	DPP v David Bowden (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1247

RULING
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Subject:Application for proceedings suppression order

Catchwords:              

Legislation Cited:      Open Courts Act 2013; Juries Act 2000; Judicial Proceedings Reports Act 1958.

Cases Cited:News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248; R v Macfarlane (1923) 32 CLR 518; R v Carl Williams [2004] VSC 413; R v Rich (Ruling No 7) [2008] VSC 437.

Ruling:  Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	David Cordy	Office of Public Prosecutions
For the Defendant	Chris Pearson	Victoria Legal Aid

HIS HONOUR:

1On 12 August 2021, Mr Bowden[1] pleaded guilty on two indictments which contained charges of sexual penetration of a child under 16 years and common-law assault (‘plea offences’). His victim was his intimate partner.

[1] A pseudonym.

2On that day, Mr Pearson, who appeared with Mr Manning, made an oral application for a proceedings suppression order to prevent publication of details of Mr Bowden’s admitted offending and antecedents to avert a substantial risk of prejudice to him in a forthcoming trial.

3Without hearing the merits of the application I made an interim order which expires today.

4The forthcoming trial also concerns charges of sexual and related violence offences allegedly committed against another young female intimate partner (‘pending charges’). Those charges are listed for a Committal Mention hearing at Shepparton Magistrates Court on 12 October 2021.

5Mr Pearson submits, because the pending charges are similar to the plea offences, if there is publication of:

·        his conviction of the plea offences, and

·        his antecedents which include;

§a criminal history of similar offending, and

§a personality which predisposes him to violence against young female intimate partners,

there would be a substantial risk of prejudice to his forthcoming trial.

6He submitted, given a jury panel will be selected from a limited, regional population in Shepparton there is a likelihood a panel member will discover the prejudicial material, if it is published, and pose a risk to a fair trial.

7Mr Cordy, who appears for the prosecution submitted jury panels are chosen from a large greater Shepparton population and it is unlikely a jury panel member will become aware the material and, even if one did, they would be required, by court direction, to apply to be excused because they had information about the accused. He also submitted, because jurors are assumed to comply with their legal obligations and the judicial directions given during the trial, there is no sufficient risk to the administration of justice to warrant a suppression order.

Consideration

8Open justice is a fundamental aspect of the Victorian legal system.[2]

[2] Open Courts Act 2013, s 1.

9However, I have the power to restrain publication of material “to prevent a real and substantial risk of prejudice to the proper administration of justice”.[3] 

[3] Open Courts Act 2013 s 18(1)(a); News Digital media Pty Ltd v Mokbel (2010) 30 VR 248, [68].

10In appropriate cases, courts have suppressed publication of pleas, convictions and sentences where there is a real or substantial risk that such publication will cause an interference with the administration of justice.

11In deciding whether to make a suppression order I need to consider:

·        firstly, the time between the proposed publication and the trial;

·        secondly, the relationship between the publication and the subject matter of the trial;

·        thirdly, the likelihood a juror or prospective juror is likely to discover the prejudicial material;

·        fourthly, whether the matter involves heightened publicity or notorious matters; and

·        fifthly, how jurors are likely to react to pre-trial publicity when assessing whether that publicity will prejudice a fair trial.

12Because of the related content, if publication of Mr Bowden’s convictions and antecedents came to the attention of a juror, it could pose a risk to Mr Bowden’s “elementary right” to a fair and impartial trial.[4]

[4] R v Macfarlane (1923) 32 CLR 518, 541-542.

13Assuming there will be a forthcoming trial and assuming there is reporting of Mr Bowden’s plea hearing, the question is whether or not publication will come to the attention of potential jurors so as to compromise their ability to remain objective and impartial.

14In my view, there are a number of factors which suggest that will not happen.

15Firstly, the likelihood is the trial will not occur for at least 12 months. Clearly, the passage of time will limit the impact of any publicity now.[5]

[5] R v Carl Williams [2004] VSC 413, per Kellam J at [24], [35].

16Secondly, there is nothing to indicate there is any heightened degree of interest in the current proceeding to excite the interest of prospective jurors. While one online reporter observed the plea hearing on 12 August and was present when I made the interim suppression order, there has been no media interest since.

17Thirdly, considering the lack of interest and the medium of publication, that is, online rather than mainstream, it is less likely a prospective juror will discover it anytime close to the trial.[6]  

[6] R v Rich (Ruling No 7) [2008] VSC 437, per Lasry J at [20].

18Fourthly, the members of the jury panel will be directed to apply to be excused if they have any information about the case and they will be warned of the prohibition against making any enquiry to obtain information about any party or the trial.[7] Regard must be had to the assumption jurors will comply with the legal obligation not to look for information about the case and will follow a judge’s directions to decide the issues solely on the evidence as a means to prevent the risk of prejudice.[8] 

[7] Juries Act 2000, s 78A.

[8] News Digital Media Ltd v Mokbel (2010) 30 VR 248, [68]. See also s 18(1) of Open Courts Act 2013.

19In R v Carl Williams, Kellam J said:

“The court has power to prohibit pre-trial publicity if there is a real or substantial risk that such publication will cause an interference with the administration of justice. The court however will not prohibit the legitimate public discussion of matters of public interest and of what takes place in our courts unless such a serious real and substantial risk arises. The issue of the degree of risk must be judged in the context of the considerable confidence that courts have by reason of experience, that juries are responsible and do comply with the directions of trial judges and scrutinise the evidence before them unaffected by pre-trial publicity, particularly when that publicity has taken place sometime prior to the trial.”[9]

[9] R v Carl Williams [2004) VSC 413, [31].

20In all of the circumstances, I am not satisfied a suppression order is necessary at this time and the application is refused.

21Media outlets are aware of the prohibition against publication of any particulars likely to lead to the identification of a person against whom a sexual offence is alleged to have been committed.[10]

[10] Judicial Proceedings Reports Act 1958, s 4(1A).

22In accordance with the Court’s Pseudonym and Anonymisation Protocol, my sentencing reasons will be anonymised to de-identify the victim. This will include the use of a pseudonym for not only her name, but also the offender’s.