Director of Public Prosecutions v Pell (Suppression Order)
[2018] VCC 905
•25 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not restricted Suitable for Publication |
Case No. CR-18-00902
CR-18-01133
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEORGE PELL |
---
JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16, 24 May and 14 June 2018 | |
DATE OF RULING: | 25 June 2018 | |
CASE MAY BE CITED AS: | DPP v Pell (Suppression Order) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 905 | |
SUPPRESSION ORDER RULING
---
Subject: Ruling – Suppression Order.
Catchwords: Proceeding Suppression Order – Necessary to prevent a real and substantial risk of prejudice to the proper administration of justice – Geographical reach of order.
Legislation Cited: Open Courts Act 2013; ss 4, 10, 11, 12, 13, 14, 17, 18.
Cases Cited:Commonwealth Director of Public Prosecutions v Brady & Ors (2015) 252 A Crim R 50; PQR v Secretary Department of Justice and Regulation (No 1) (2017) 53 VR 45; Dupas v The Queen (2010) 241 CLR 237; R v Mokbel (2009) 26 VR 618; Mwamba v The Queen [2015] VSCA 338; News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248; Nationwide News Pty Ltd v Farquharson and Anor (2010) 28 VR 473; Re Applications by Chief Commissioner of Police (Vic) for Leave to Appeal (2004) 9 VR 275, Levy v The State of Victoria & Ors (1997) 189 CLR 579.
Ruling: Proceeding Suppression Order granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Gibson QC | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr R Richter QC | Galbally & O’Bryan |
| For the Australian Broadcasting Corporation | Mr A Anderson | |
| For Nationwide News Pty Ltd, Nine Network Pty Ltd and Seven Network (Operations) Pty Ltd | Mr T Otter | Macpherson & Kelley |
HIS HONOUR:
Preliminary
1 The accused man – Cardinal George Pell - was committed to stand trial in the County Court of Victoria on 1 May 2018 in respect of a number of historical child sexual offences, which involve multiple complainants.
2 It was common ground between the parties that these charges should proceed by way of two separate trials.
3 A Summary of Prosecution Opening has now been filed in relation to the two trials.
4 One trial involves allegations of three child (boy) complainants from the 1970s about inappropriate touching at swimming pools (‘the swimmers trial’). Further uncharged offending in relation to a fourth boy complainant is sought to be led. Tendency and coincidence notices have been filed seeking cross-admissibility of the evidence.
5 Another trial involves allegations from two child (boy) complainants (one deceased and one living), from the 1990s involving, inter alia, oral sexual penetration (‘the cathedral trial’).
6 The accused man was at the time of the alleged offending an ordained Priest of the Catholic Church. At the time of the charges which are the subject of the cathedral trial, the accused man held the position of the Archbishop of the Catholic diocese of Melbourne.
7 The accused gained access to the boys (or at least became acquainted with them) through his position within the Catholic Church.
8 The prosecution indicated that it intends to proceed with the swimmers trial first, followed by the cathedral trial. These trials have tentatively been set down in August and November 2018 respectively and will each be of some five weeks duration. They are set down before me.
9 There remains the possibility of a third trial. I will return to this matter later.
10 An application will be made by the defence in July seeking to have me exercise a power to order that the trials be heard in the reverse order to avoid a miscarriage of justice or an abuse of process. As I understand it, the effect of the application will be that the accused man can only receive a fair trial if the cathedral trial proceeds before the swimmers trial. While I have decided this suppression order application upon the basis of the prosecution’s intended order of trials, for the reasons which follow the outcome of this application would be the same irrespective of which trial runs first.
Previous orders
11 On 10 July 2017 a suppression order was made in the Melbourne Magistrates’ Court in relation to the committal proceedings, which applied Australia wide and expired seven days after the completion of the committal proceedings (‘the Magistrates’ Court Order’). It prohibited publication of:
(a) the number of complainants, save that there are ‘multiple complainants’;
(b) the number of charges, save that there are ‘multiple charges’;
(c) the nature of the charges against the accused save that they are ‘historical sexual offences’;
(d) the fact of the suppression order.
12 At an Initial Directions Hearing on 2 May 2018 at the County Court at Melbourne, her Honour Judge Pullen granted an interim suppression order in the same terms as the Magistrates’ Court Order.
13 The matter was adjourned to 16 May 2018 for a Further Directions Hearing before me.
14 On 16 May 2018, the Director of Public Prosecutions made an application for a proceeding suppression order pursuant to s 17 of the Open Courts Act 2013 (‘the Act’), on the ground that it is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means (s 18(1)(a)).
15 That application sought an order which prohibited publication of a report about the whole or any part of the proceedings and any information derived from the proceedings and any court documents.
16 The prohibition on publication sought was to apply Australia wide, including on any website or electronic broadcast format accessible within Australia.
17 The defence supported the application made by the prosecution and the terms of the suppression order sought.
18 Mr Anderson of Counsel appeared behalf of the Australian Broadcasting Corporation (‘the ABC’), and Mr Otter of Counsel appeared on behalf of the Nationwide News Pty Ltd, Nine Network Pty Ltd and Seven Network (Operations) Pty Ltd (‘the Commercial Networks’). No other media organisation has sought to be heard despite being given opportunity to do so.
19 The ABC and the Commercial Networks took no issue with the fact that a proceeding suppression order should be made, but submitted that it should be confined to Victoria.
20 Initially, both the ABC and the Commercial Networks disputed the geographical scope of the suppression order. Both media legal representatives foreshadowed that it would be submitted that it was not necessary for the suppression order to apply beyond Victoria to Australia as a whole.
21 The substantive hearing of the application was then adjourned until 24 May 2018. A further interim suppression order was granted, which prohibited publication of a report about the whole or part of the proceedings or any information derived from the proceedings, except for a report that a Directions Hearing was held before the Chief Judge. This order applied within Australia. It particularised that publication was prohibited of:
(a) the number of complainants;
(b) the number of charges;
(c) the nature of the charges; and
(d) the fact of multiple trials.
22 On 24 May 2018, the parties and media confirmed that it was common ground amongst all that a proceeding suppression order should be made, which would have effect in Victoria.
23 Further, the ABC withdrew its opposition to the Australia-wide geographical reach of the suppression order.
24 However, Counsel for the ABC sought a variation of the terms of the proceeding suppression order proposed by the prosecution. I will return to this variation later.
25 Counsel for the Commercial Networks maintained their resistance to the Australia-wide geographical breadth of the suppression order.
Legislative framework and legal principles
26 The relevant notice requirements in ss 10 and 11 have been complied with.
27 The starting point for determining whether to make a suppression is contained in s 4. It creates a presumption in favour of disclosure of information. The court must have regard to this presumption in making its determination. The onus is on the applicant to persuade the court the order is necessary and that the presumption of open justice and freedom of communication should be qualified.[1]
[1]Commonwealth Director of Public Prosecutions v Brady & Ors (2015) 252 A Crim R 50 (‘Brady’), 60 [59]; PQR v Secretary Department of Justice and Regulation (No 1) (2017) 53 VR 45 (‘PQR’), 62-63 [46].
28 In this case, the application is made on the ground contained in s 18(1)(a):
That the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.
29 If the court is satisfied that an order should be granted the Act requires the scope of information to be covered by the order to be limited to that which is necessary to achieve the purpose for which the order is made (s 13).
30 The Act also requires that the geographical scope of the order be limited to that which is necessary. For an order to apply outside Victoria, the court must be satisfied that it is necessary to achieve the purpose for which the order is made (s 21).
31 The duration of a suppression order must be clearly specified in the order. Whatever duration is set, it must not be longer than is reasonably necessary to achieve the purpose for which the order is made (s 12).
32 Each of the grounds contained in s 18 requires the court to be satisfied that the order is necessary. The word ‘necessary’ imposes a high standard of satisfaction.[2] The court must undertake its own assessment of whether the order is necessary. It is not sufficient to rely on an assessment by the parties.[3]
[2]Brady (2015) 252 A Crim R 50, 60 [59].
[3]Ibid [61].
33 The court must make the determination about whether the order is necessary either on the basis of admissible evidence or ‘sufficient credible information that is satisfactory to the court’ (s 14(1)). Sufficient credible information is something less than admissible evidence and can include inferences which may be drawn from available evidence or from judicial knowledge and experience.[4]
[4]Ibid [60].
34 The meaning of necessary is also informed by the principle of least restriction. The making of a suppression order must be:
proportionate and demonstrably justified by reference to, and limited to addressing, pressing legitimate purposes and goes no further than the principle of least restriction requires.[5]
[5]PQR (2017) 53 VR 45, 62 [45] (emphasis added).
The accepted context
35 During the hearing of this application, I confirmed with the parties and the media organisations that the following assumptions could be made about the factual context or setting in which this application falls to be determined:
a) that these proceedings would, without a suppression order, receive widespread, extensive and saturation level publicity within Victoria, and throughout Australia;
b) the interest in these proceedings is as intense throughout Australia as it is in Victoria;
c) that the coverage of these proceedings would encompass every arm of mainstream media (print, television, radio, and online) and non-mainstream media online;
d) that there is significant media interest worldwide.
The Victoria limited order
36 As I have said, it is common ground between the parties and the media organisations that, at the very least, a suppression order in relation to Victoria is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice. It is common ground that it is necessary in order to preserve the integrity of the jury pools for the two trials and to ensure that the accused man receives a fair and impartial trial. Having noted that, and as I have already said, I must also be so satisfied.
37 Further, in order to properly consider whether the order ought to be extended Australia wide, I must first examine the reasons for the necessity of the order within Victoria.
38 It was accepted that if there were no such suppression order in place (at least within Victoria), potential jurors in one trial would inevitably be exposed to continuing widespread and extensive media coverage about the other trial.
39 In the absence of any suppression order, the swimmers trial would be conducted against the background of the jury’s exposure to the outstanding allegations in the forthcoming cathedral trial (namely, that the accused man had engaged in particularly grave sexual misconduct against boys). Of greater concern would be the fact that the cathedral trial itself would be swamped by the immediately preceding (and presumably ongoing) publicity of the completed swimmers trial, including the fact that there were three (four, including the uncharged complainant) separate boy complainants of sexual abuse. This might even include publicity concerning a finding of guilt.
40 Even if the trials proceeded in the reverse order, similar consequences pertain. In the absence of any suppression order, the cathedral trial would be conducted against the background of the jury’s exposure to the outstanding allegations in the forthcoming swimmers trial. The swimmers trial would later in turn be swamped by the immediately preceding (and presumably ongoing) publicity relating to the details of the completed cathedral trial. Again, this might even include publicity concerning a finding of guilt.
41 The capacity for very great prejudice is self-evident. A jury might reason from one set of allegations that the accused man is more likely to be guilty of the other set of allegations, through a process of impermissible tendency, coincidence or context reasoning.
42 The risk is greater here due to the fact that the allegations or evidence in one trial might be seen by jurors to be apparently probative in relation to the allegations in the other trial. This increases the risk that any directions aimed at having the jurors put out of their minds what they have heard will be ineffectual. Granted, the nature of the sexual abuse alleged in each of the two trials is in some respects of a different quality. In the swimmers trial the alleged abuse is of a touching or fondling nature, whereas in the cathedral trial, the alleged sexual abuse extends to some of the gravest and most extreme kind (penetrative offending). The alleged offending is also not temporally related. Nevertheless both trials involve allegations of sexual abuse by the accused man against boys, accessed by him or known to him in his capacity as an authority and religious figure within the Catholic Church. This is clearly not a case where the allegations in one trial are so separate and discrete in nature or circumstances as to be unlikely to improperly influence a jury in the other trial.
43 The alleged conduct in each trial (sexual offending against children by an authority figure in an institutional setting) is also of a kind which is likely to provoke or arouse an emotional reaction in the jury.
44 Both trials are scheduled to run in reasonably quick succession. No one has suggested that a period of delay between the trials would lead to any significant reduction in the publicity, or attendant prejudice.
45 I accept, as I must, that I may give a jury strong and appropriate directions to address prejudicial pre-trial publicity. I must, of course, generally proceed on the assumption that jurors will follow the directions which they are given.[6] On the other hand:
[6]See, e.g., Dupas v The Queen (2010) 241 CLR 237, 247–8 [26]–[28]; R v Mokbel (2009) 26 VR 618, 638 [90]; Mwamba v The Queen [2015] VSCA 338 [44].
The confidence in the corporate integrity of juries, however, does not mean that the law should abandon its traditional role of protecting them from events which put this integrity to the test.[7]
The court has a responsibility to do what it can to protect the rights of the accused and to provide the accused person with as fair a trial as possible.[8]
[7]News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 (‘News Digital Media’), 267 [73].
[8]News Digital Media Pty (2010) 30 VR 248, 271 [89]-[90].
46 As I indicated to the parties during the hearing of the application, in my view this would be the kind of case which would strain the ability of judicial direction to guard against sympathy and prejudice.[9] I remain of that view having regard to the following:
[9]Nationwide News Pty Ltd v Farquharson and Anor (2010) 28 VR 473, 476 [14].
a) The fact that these trials would be conducted within a febrile media atmosphere in the absence of a suppression order;
b) The exceptionally high profile of the accused man who is a Cardinal of the Catholic Church;
c) The rising disquiet and hostility within sections of the community about the failure of institutions, including the Catholic Church, to take steps to prevent sexual abuse within the institution and to report sexual offenders. This sentiment is acute, bearing in mind the recent Royal Commission into Institutional Responses to Child Sexual Abuse. (Indeed, the accused man himself gave evidence at the Royal Commission, which was the subject of an extraordinary level of publicity);
d) The nature of the allegations in both trials, being allegations of sexual abuse of children by someone in a position of authority within one of these institutions.
47 Jurors are robust but they are only human, after all, and this is a ‘perfect storm’ of potential prejudice. In my view, overwhelming exposure to the one set of allegations at a time which is even remotely proximate to the hearing of a trial of the other set of allegations, has the real capacity to significantly prejudice a jury’s objective and impartial consideration of the charges before them.
48 For all the reasons advanced above, I am satisfied that the common position taken by the parties and the media organisations that a suppression order is necessary at least within Victoria is the correct one.
49 It is important that a suppression order not go further than is necessary.
50 The ABC submitted that there should be one qualification to there being a blanket order, namely it is not necessary to prohibit publication of the fact that the accused is being prosecuted for historical child sexual offences in the County Court of Victoria. The prosecution ultimately accepted this, and when pressed, the defence only faintly resisted it. I do not see any prejudice attaching to this broad information. All potential jurors will be told this information during the empanelment process at either trial. I accept, as was submitted by Counsel for the ABC, that the public is entitled to know that the accused man is facing trial, and that continuing to allow publication of this fact engenders public confidence in the integrity of the administration of justice.
51 The media organisations did not press any further submissions about other possible qualifications to the effect of the order within Victoria. This is understandable. It is difficult to envisage beyond the bare fact of prosecution for historical sexual offences what other information could safely be disclosed without giving away information which has the capacity to prejudice the accused man’s right to a fair trial. That is because the information which has the capacity to prejudice this right lies at the core of these proceedings: the nature of the charges, the number of complainants and the number of trials. To demonstrate this take the following:
a) Publicity concerning the number of trials would inevitably suggest to prospective jurors in one trial that the accused man is facing other serious sexual offences involving other complainants.
b) Likewise, it would not be sufficient to merely prohibit publication of a conviction arising out of the first scheduled trial (i.e. the swimmers trial), since the jury would have already been inundated with all the details of the allegations. They would also then be left to speculate about the outcome.
52 I accept that public scrutiny is essential to engender public confidence in the administration of justice. It might be said that this is especially so where the prosecution involves such a high level official from a significant institution. The accused man is presently a Cardinal, one of the most senior positions within the Catholic Church. That said, the accused man, like anyone else is entitled to a fair trial. In my view, his rights to a fair trial should not be diminished because of who he is, or the office he occupied at the time of the alleged offending, or the office he occupies today.
53 As I have said, no media organisation has contended that a suppression order is not justified in Victoria.
54 That is the case even though there is already some, limited, information in the public domain concerning these proceedings.[10] There has been some coverage that there are multiple complainants, multiple sexual abuse charges against children and short lived coverage that there would be two trials, one involving swimming pools and one involving a cathedral. This short lived coverage occurred after the committal hearing and prior to the making of my interim order. This is in stark contrast to the tsunami of information which would flood the public domain in the event there was no substantial restraint, going forward, on the publication of information about these trials.
The real controversy: the question of geographical reach
[10]In considering whether an order is necessary, the mere fact that there has been pre-trial publicity which has been prejudicial to the accused will not necessarily render the making of an order unnecessary: News Digital Media (2010) 30 VR 248, 271 [89].
55 The real controversy in this application concerned the geographical reach of the proposed suppression order.
56 By way of background information, and after having taken some instructions, Counsel for the Commercial Networks informed me that his clients were unable to limit access to their online material based upon geographic location. They cannot effectively and selectively block online material from being accessed in Victoria. As such, if I were to confine the order to Victoria, the Commercial Networks would not publish any online material concerning the trials.
57 The prosecutor – supported by defence counsel – submitted that, in practical terms, an Australia wide order was necessary because in the modern age the state borders were all but illusory. I will return to these arguments and this reasoning shortly.
58 In essence, Counsel for the Commercial Networks submitted that an Australia wide order was not necessary because it would in fact be futile:
a) He contended that preventing publication (on mainstream media) in Victoria would quarantine the vast majority of Victorians from being ‘poisoned’ as potential jurors;
b) It followed, he submitted, that quarantining the vast majority of Victorians in this way, would reduce the risk so that it was less than ‘substantial’, and this risk could be addressed by directions. It was in this sense unnecessary to take the step of extending the order Australia wide;
c) There is also minimal risk of Victorians (and thus potential jurors) being exposed to the traditional mass media reporting interstate (i.e. TV, radio, newspapers). That leaves only the risk of indirect internet exposure (such as social media chatter). In relation to this Mr Otter submitted it was pointless making an Australia wide order to guard against indirect internet exposure because there was as much likelihood of a potential juror becoming aware (at least indirectly) of suppressed material via the internet as a result of reporting overseas, which I cannot control, as there would be from interstate reporting.
d) Perhaps more broadly, it seemed to be submitted that there is little point in suppressing interstate publicity because Victorians will in any event be exposed at least indirectly to international coverage.
59 I would reject the argument that an Australia wide order is futile or is otherwise unnecessary:
a) As the parties accept, including the media organisations, the media interest in these proceedings is as intense throughout Australia as it is within Victoria. This makes this case pretty unique. While there have been high-profile prosecutions within Victoria which have generated media interest interstate, the interest generally remains more locally concentrated within Victoria.
b) Further, as the media organisations have accepted, this intense media interest will manifest itself by way of saturation coverage on a daily basis, if allowed, Australia wide.
c) It strikes me as naïve to suggest, as the Commercial Networks have, that the anticipated saturation mainstream media coverage could occur interstate in a relatively contained way, without significantly impacting upon a substantial proportion of the Victorian population. I must be astute to the modern communication environment. State borders are increasingly irrelevant to the way in which people go about their daily affairs and obtain their information. Today people communicate with their interstate friends, family and work colleagues virtually as freely and as regularly as they do with fellow citizens within Victoria. They do so with extraordinary ease, constantly and via a multitude of different mediums or platforms, such as text messages, emails, instant messaging, video calls and conferences, and a whole host of other social media options. If there is daily saturation media coverage throughout the states and territories on the radio, on the TV bulletins, in the tabloids and broadsheets papers, in magazines, and on talkback, I infer, as a matter of common sense and experience that this information would inexorably flow into the Victorian population. This is to say nothing of the inevitable exposure to interstate publicity which will occur through the extensive interstate travel which takes place (Victorians travelling interstate and interstate visitors coming into Victoria).
d) In my view the immediate geographical and cultural proximity of Victorians to interstate publicity (of all forms), and the economic and social ties between the citizens of Victoria and their interstate compatriots, means that interstate publicity is likely to have a more significant and widespread impact upon Victorians than any indirect exposure to international coverage.
e) Further, while such international exposure has the capacity to undermine, to some degree, the efficacy of any order that I make, the law recognises that a trial judge can only do so much to protect the interests of an accused person. Perfect justice might well be an aspiration, but it is not a requirement of a fair trial. The fact that an order does not guarantee perfect impartiality does not mean that such an order is unnecessary.
f) It is accepted by the Commercial Networks that the risk of international contamination would not render an order confined to Victoria futile. If that is so, it seems to follow, in my view, that any risk of contamination from international exposure would not render the Australia wide order futile.
g) I therefore do not accept the proposition which underpins the submission of the Commercial Networks that an order preventing publication (on mainstream media) in Victoria would quarantine the vast majority of Victorians. Nor do I accept that the international coverage of these trials somehow renders an Australia wide order futile. In my view there remains a very real benefit to extending the suppression order to all states and territories. In short, it is necessary to address the real danger of indirect and extensive contamination of potential jurors in Victoria.
Duration
60 I would therefore make an order which has the following effect:
a) Publication in relation to the swimmers trial (first scheduled trial) will be prohibited until the jury has delivered its final verdicts in that trial and in the cathedral trial (second scheduled trial).
b) Publication in relation to the cathedral trial (second scheduled trial) will be prohibited until the jury has delivered its final verdicts in the swimmers trial (first scheduled trial).
c) This means that the media will be able to cover the cathedral trial (second scheduled trial) as it progresses.
d) Once the jury has delivered its final verdicts in the cathedral trial, the media can publish in relation to the swimmers trial.
e) There can be no reference to the fact there are two trials until after the jury has delivered its final verdicts in relation to both trials.
61 The prosecution has indicated that there may in fact be a third trial. As matters currently stand, this remains a matter of speculation. Should there be a third trial, then the prosecution will have leave to apply to extend the operation of these orders. I will deal with that application should it ever be made.
Application by Rosemary O’Grady
62 An application was filed with the court by Ms Rosemary O’Grady on 21 May 2018, in which she sought leave to appear as ‘amicus curiae to assist the court on a matter of public interest’. That application was supported by an affidavit and submissions.
63 Ms O’Grady subsequently attended court on 24 May 2018 and the question of standing and any substantive arguments were adjourned to 14 June 2018.
64 Ms O’Grady subsequently filed a further application dated 30 May 2018 which stated that ‘I now apply withdraw that Application / or have it dismissed.’
65 Ms O’Grady attended court on 14 June 2018 and advised the court that she was withdrawing her application for leave to appear as amicus curiae. However, Ms O’Grady sought to make her withdrawal contingent on the proviso ‘that the court has actually read and understood the contents of [her] documents.’
66 It is convenient to note that I have read and understood each of the documents filed by Ms O’Grady.
67 I accept that Ms O’Grady’s application for leave to appear as amicus curiae or leave to appear s 19(2) of the Act has been withdrawn.
68 However, for the brief reasons that follow, as matters currently stand, I would not have been minded to grant Ms O’Grady leave to appear under s 19(2) of the Act or leave to appear as amicus curiae.
69 First, Ms O’Grady could only be heard, pursuant to s 19(2)(e), if she was a person with a ‘sufficient interest in the question of the whether the order should be made.’ I am not satisfied that Ms O’Grady has such a ‘sufficient interest.’ Ms O’Grady’s interest in this matter arises out of her connection with an American organisation of survivors of childhood sexual abuse. She has been providing information to this organisation about this matter. Any suppression order to be made in this matter would not prevent her from continuing to communicate with that organisation about this matter. In this respect, she would also not be personally aggrieved by the making of a suppression order.[11] None of her substantive rights would be affected by the making of this order.
[11]Re Applications by Chief Commissioner of Police (Vic) for Leave to Appeal (2004) 9 VR 275, 279 [13].
70 Second, I would also not have been minded to grant her leave to appear as amicus curiae. The granting of leave to appear as amicus curiae is an entirely discretionary matter.[12] The applicant must satisfy the court that he or she is willing to offer the court a submission on law or a relevant factor, which will significantly assist the court in a way in which the court would otherwise not have been assisted’.[13] Finally, the cost to the parties or delay consequent on agreeing to hear from the amicus must not be disproportionate to the assistance that is expected.[14]
[12]Levy v The State of Victoria & Ors (1997) 189 CLR 579, (‘Levy’) 604.
[13]Ibid 604-605 (Emphasis added).
[14]Ibid 605.
71 I have been greatly assisted by Counsel for the media on this application. Counsel have made quite extensive written and oral submissions, which they have supported by references to the relevant legislative provisions and case law. As matters currently stand, I would not be satisfied that Ms O’Grady would be able to make any submissions which would significantly assist me.
Terms of suppression order
72 The terms of the suppression order are attached as an annexure to these reasons (Annexure A).
- - -
ANNEXURE A
THE COURT ORDERS THAT:
Publication is prohibited of any report of the whole or any part of these trials, and any information derived from these trials and any court documents associated with these trials, save that publication is permitted that the accused is facing prosecution for historical child sexual offences in the County Court of Victoria.
The prohibition on publication applies within all States and Territories of Australia and on any website or other electronic or broadcast format accessible within Australia.
For the purpose of this order, ‘publication’ has the meaning attributed to it by s3 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.
This order will expire upon commencement of the second trial in time, save that publication of any report of the whole or any part of the first trial in time and any information derived from and any court documents associated with it will be prohibited until verdict in the second trial in time.
For the avoidance of doubt, publication is prohibited of the following information:
a)number of complainants in either or both trials;
b)the number of charges, save for the fact that there are “charges”;
c)the nature of the charges, save for the fact that they are charges of “historical child sexual offences”; and
d)the fact of multiple trials.
5
0
0