Director of Public Prosecutions v Lehrmann (No 6)
[2022] ACTSC 334
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Lehrmann (No 6) |
Citation: | [2022] ACTSC 334 |
Hearing Date: | 2 December 2022 |
DecisionDate: | 2 December 2022 |
Before: | McCallum CJ |
Decision: | (1) Revoke the suppression order made on 29 April 2022. (2) Revoke the suppression order made on 3 May 2022. (3) Revoke the suppression order made on 10 October 2022. (4) Revoke the suppression order made on 26 October 2022. (5) Prohibit the publication of the submissions that have been made today. |
Catchwords: | CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Accused charged with one count of sexual intercourse without consent — Where the Director of Public Prosecutions has declined to proceed further on the indictment — Whether various suppression orders made during the course of the proceedings should be maintained or revoked |
Legislation Cited: | Crimes Act 1900 (ACT), s 54(1) Evidence (Miscellaneous Provisions) Act 2011 (ACT), s 111 Federal Court Rules 1979 (Cth), O 46 r 6 |
Cases Cited: | R v Lehrmann (No 2) [2022] ACTSC 92 Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836 |
Parties: | Director of Public Prosecutions Bruce Lehrmann (Accused) |
Representation: | Counsel S Drumgold SC (DPP) A Moses SC (Accused) D Sibtain SC (Intervenor) |
| Solicitors ACT Director of Public Prosecutions Kamy Saeedi Law (Accused) Thomson Geer (Intervenor) | |
File Number: | SCC 264 of 2021 |
McCALLUM CJ:
1․Bruce Lehrmann stood trial for a single count of sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT). The trial proceeded before me over some three weeks earlier this year and resulted in the discharge of the jury following the discovery of their having had access to material to which they should not have had access.
2․The matter was listed for retrial on 20 February 2023. In the meantime, the accused filed an application in proceeding. I made an order in chambers on 24 November 2022 forbidding publication of the content of that application and the supporting affidavit. I further ordered that the court be closed for the hearing of the application. My reason for doing so at the time I made those orders in chambers was that, the trial still being scheduled to proceed early in the new year and having regard to the very significant public attention this trial has received, I did not want there to be any possibility of further reporting that might jeopardise a fair trial for the accused.
3․Since the making of those orders, the Director of Public Prosecutions has indicated to the Court and confirmed by public announcement and the filing of a Notice Declining to Proceed that the prosecution of the accused is to be discontinued. It remains to consider what may be published following that decision.
4․I have this afternoon heard the Director, the accused and the media intervenors, who filed their own amended application in proceeding seeking variation of the orders of 24 November 2022 to which I have referred, as to the fate of a series of non-publication orders made during the course of the proceedings. Having regard to the submissions I have heard on those matters, I propose to deal with the non-publication orders as follows.
5․On 29 April 2022, I made orders prohibiting until further order the publication of certain parts of a judgment published by me in response to an earlier stay application by the accused. I propose to revoke that order. No party opposes that course. The reason for revoking it is that the purpose for the order, which was to protect the accused’s right to a fair trial, is now spent, the prosecution having been discontinued.
6․On 3 May 2022, I made a further order relating to my judgment in that stay application, R v Lehrmann (No 2) [2022] ACTSC 92. I propose to revoke that order for the same reason.
7․On 31 May 2022, I made an order under s 111 of the Evidence (Miscellaneous Provisions) Act 2011 (ACT) prohibiting publication of the reason for the unavailability of counsel previously appearing for the accused. That was in circumstances where that counsel became unavailable on short notice, resulting in the postponement of the trial, then listed for 27 June 2022. One reason for making that order was to avoid what then appeared to be a live risk of speculation that might be adverse to the interests of the accused. A further reason was that the explanation for the barrister’s unavailability was personal to that barrister. The second reason remains relevant and accordingly I propose to maintain that order. Counsel for the media intervenors argued against that course, submitting that the private interests of counsel are not a sufficient warrant for an order under the Evidence (Miscellaneous Provisions) Act. There may be force in the contention that the Court should be astute not to over-use the power to make such an order and I am mindful of that constraint. However, the interests of the administration of justice, in my view, extend to the protection of privacy in circumstances where there can be no forensic purpose for seeking disclosure of the information. I do not propose to lift the order.
8․On 21 September 2022, I made an order pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act that the contents of MFI 1, marked on that date, not be published. That was a document provided to the Court during the course of an application by the accused for further discovery by the prosecution of documents personal and private to the complainant. No party submitted that I should not maintain that order. I am satisfied that the order should be maintained in order to protect her privacy, the documents in question having no ongoing relevance to any issue in the proceedings.
9․On 7 October 2022, I made an order that contact details of persons contained in exhibits in the trial not be published. That order was made in circumstances where it came to light that members of the press had obtained copies of exhibits which inadvertently revealed private contact details for persons connected with the trial. No party suggested I should not maintain that order. I propose to maintain it.
10․On 10 October 2022, I made an order prohibiting the publication of the reason or speculation as to the reason for the unavailability of the complainant to continue giving evidence for part of the trial. The complainant was cross-examined in the trial up to and including a Friday. Over the weekend, events occurred as a result of which she was not available on the Monday or for the next three days. She returned to the witness box the following Friday, a week after she had left. At the time, the reason for prohibiting the publication of her reason for being unavailable was to protect the interests of the accused during the trial. It was submitted that, if the jury learned that the complainant had become mentally unwell during (and potentially as a result of) the cross-examination, that might prejudice the accused’s right to a fair trial. The purpose of that order has been overtaken both by the event of the discontinuance of the prosecution and, separately, by the contents of the announcement made by the Director today when he gave his reasons for discontinuing the prosecution. I propose to revoke that order. No party suggested I should not.
11․On 11 October 2022, I noted the effect of a statutory prohibition but made no order. There is no need to interfere with what I said on that date.
12․On 12 and 13 October 2022, I made orders calculated to protect the secrecy of security arrangements within Australian Parliament House. I propose to maintain those orders. No party suggested I should not.
13․On 26 October 2022, I vacated an order prohibiting publication of the content of my judgment of Lehrmann (No 2) except in relation to two unrelated allegations of sexual assault or harassment made against the accused. For the reason I have already given, being the fact that the accused no longer faces trial, I propose to revoke that order. No party suggested I should not.
14․The most controversial decision to be made today relates to the orders I made in chambers on 24 November 2022. Shortly before that date, on 22 November 2022, the accused filed an application in proceeding supported by an affidavit. I made orders in chambers pursuant to ss 111(2) and 111(4) respectively prohibiting publication of the content of the application in proceeding and the affidavit. I also closed the court for the hearing of the application.
15․At the time I made those orders, my reason was that, in circumstances where as I have already indicated this trial has attracted an enormous amount of media attention, the prospect of a further media frenzy concerning a further application by the accused was one I thought was very likely to jeopardise the integrity of the trial. Accordingly, I took it upon myself to make the orders in chambers without hearing from any party. I proposed to revisit that issue at the hearing of the application which, until the Director’s announcement, was listed for hearing this afternoon.
16․In the meantime, the media intervenors filed the application in proceeding to which I have referred seeking variation of those orders. That application was also listed to be heard this afternoon. The intervening decision of the Director to discontinue the prosecution has changed the context in which the continuation of the first order falls to be assessed. The Director took a neutral position. Both the media intervenors and the accused submitted that I should revoke that order so as to permit publication of the content of the application and the affidavit.
17․Counsel representing the media intervenors, Mr Sibtain SC, put reasons broadly consistent with the interests of the press concerning the entitlement of the media to report openly about the full context of the proceedings, including the circumstances in which this long-running high-profile trial has been discontinued. Senior counsel for the accused, Mr Moses, put in effect the same submissions with a slightly different emphasis. He relied on the decision of Rares J in Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836, to which I will return.
18․In short, Mr Moses submitted that there is no reason why a document filed in the Registry which invokes the Court’s jurisdiction should not be allowed to be inspected. He submitted that there is no suggestion here of anything in the nature of a threat to security and that there can be no ongoing suggestion of threat to the integrity of the trial. Mr Moses also made a submission based squarely on, if I could put it this way, the competing reputational interests of the complainant and the accused. He noted that, as the position stands, the public has heard the Director’s announcement that the prosecution has been discontinued, largely because medical evidence indicates that the continuation of the prosecution poses a real risk to the complainant’s life. [REDACTED].
19․[REDACTED].
20․As already noted, Mr Moses relied on the decision of Rares J in Llewellyn. I do not think that decision supports the proposition for which it was relied upon by Mr Moses. That was a case in which proceedings in the Federal Court invoking the Court’s civil jurisdiction had been resolved as between the parties. They sought an order that the application and statement of claim filed by the plaintiff (a journalist) against his former employer (a mass media entity) remain confidential. Rares J was not inclined to make that order in chambers and listed the matter to hear from the parties. At the time of the listing, no short minutes of order reflecting the settlement had been filed, meaning that, unlike here, the proceedings remained on foot so far as the Court was concerned. A further difference between the position as determined by Rares J and this Court is that the Federal Court had a rule which provides, in short, that parties may have access to pleadings filed in the Court. That is not the position in this Court.
21․Rares J said at [28], with particular reference to the Federal Court rule (as it was at that time):
The originating process and pleadings in proceedings initiated in a court of justice such as this court with rules such as O 46 r 6, are intended by the rules of the court to be available to the public. That is so that they may see what is the controversy brought to the court for resolution by it in its ordinary function as a court constituted under Chapter III of the Constitution. That function is to resolve controversies that arise under laws of the Commonwealth or under the Constitution itself and to determine finally all matters in dispute between the parties. Hence, the jurisdiction of this court to deal finally with the whole of the matter between parties even though only a part of it, and perhaps only a small part of it, involves an issue which is a ‘matter’ within the meaning of ss 75 and 76 of the Constitution: see Re Wakim; Ex parte McNally (1999) 198 CLR 5II.
22․So much may be accepted but it is plain that, in making those remarks, his Honour was placing some weight on the fact that the proceedings remained current and pending, even though the controversy had been resolved as between the parties.
23․The position is different here. First, the prosecution has been formally discontinued by the Director. Secondly, as I have already indicated, this jurisdiction does not have a rule with the prima facie effect of O 46 r 6 of the Federal Court Rules 1979 (Cth). Thirdly, and most importantly, there is a cogent reason for continuation of the order, namely, the medical condition of the complainant. In fairness to Mr Moses, he does not have the same level of knowledge I have about that.
24․Based on my experience of the trial, which included the provision of a medical certificate when the complainant became unavailable to continue her evidence, my own observations of the complainant and the information provided to me by the Director yesterday concerning her current medical condition, I have no doubt that any further exacerbation of the level of media attention directed to her carries a risk to her life. My view on that issue is not altered by the fact that she herself has made press statements. I do not think that indicates that one can compartmentalise the areas in which she is vulnerable and the areas in which she is not. I am simply not prepared to contribute to the media frenzy that has been this case.
25․Based on my assessment of the application and the affidavit, it is my firm view that publication of that material would give the media a new story or a new slant that would inevitably result in further harm to the complainant, and that is not a step I am prepared to take.
26․For those reasons, I propose to maintain the orders I made on 24 November 2022. I will also prohibit the publication of the submissions that have been made today.
27․I make the following orders:
(1) Revoke the suppression order made on 29 April 2022;
(2) Revoke the suppression order made on 3 May 2022;
(3) Revoke the suppression order made on 10 October 2022;
(4) Revoke the suppression order made on 26 October 2022;
(5) Prohibit the publication of the submissions that have been made today.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Grace Hartley Date: 17 April 2023 |
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