DPP (Cth) v Ling

[2003] VSC 447

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1496 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)	Plaintiff
v
CHIA TECK LING	Defendant

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 OCTOBER 2003
DATE OF JUDGMENT:	15 OCTOBER 2003
MEDIUM NEUTRAL CITATION	[2003] VSC 447

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PRACTICE AND PROCEDURE - Application under the Proceeds of Crime Act 2002 (Cth) - Application by newspaper to inspect Court file - Whether civil or criminal matter - Whether governed by Order 8 of Supreme Court (Criminal Procedure) Rules 1998 or r.28.05 of Supreme Court (General Civil Procedure) Rules 1996 - Relevant considerations to allow access assuming file was correctly classified as criminal - Principle of open administration of justice.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J. Quill	Corrs Chambers Westgarth
For the Director of Public Prosecutions	Mr A. Hicks	Office of Public Prosecutions

HIS HONOUR: 

1. On 24 September 2003, Dodds-Streeton, J made a restraining order under s.19 of the Commonwealth Proceeds of Crime Act 2002.  The file in respect of that application has been treated by the Prothonotary's office as a criminal matter.

1. I have before me an oral application by the Herald and Weekly Times Limited for access to the affidavit filed in support of that application.  Mr Quill, who appeared for the applicant, submitted that an application under the Proceeds of Crime Act 2002 is a civil proceeding, not a criminal proceeding. If this were the case then the Supreme Court (General Civil Procedure) Rule 1996 would apply and the applicant would be entitled to, upon payment of a fee, to inspect the file (see r.28.05).

1. It is not necessary for me to decide whether this matter is civil or criminal.  However, I do note that the Supreme Court (Criminal Procedure) Rules 1998 contain Order 8 which deals with "Proceeds of Crimes Rules". Rule 8.01 defines the Act for the purposes of the Order as meaning the Commonwealth Proceeds of Crime Act 1987.

1. I was informed by Mr Quill and Mr Hicks, who appears for the Director of Public Prosecutions, that there have been no amendments to the Supreme Court (Criminal Procedure) Rules 1998 to deal with applications under the Proceeds of Crime Act 2002.

1. Prima facie, the reference to the Proceeds of Crime Act 1987 within the Supreme Court (Criminal Procedure) Rules 1998 would indicate to me that the file was correctly treated as a criminal proceeding. However, Mr Quill drew my attention to s.315(1) of the Proceeds of Crime Act 2002, which says that: "Proceedings on an application for a restraining order or a compensation order are not criminal proceedings."

1. Mr Hicks helpfully explained to me that there has been a significant change between the two Acts in that it is now possible to obtain restraining orders which are in advance of either the laying of charges or of convictions, which may lead to a different classification of that part of the applications under the Proceeds of Crime Act 2002.

1. However, as I said, I do not need to resolve that difficulty today.  I am going to proceed on the assumption that this is a criminal proceeding.

1. Mr Quill then based his application on Order 1.11.4 of the Supreme Court (Criminal Procedure) Rules 1998, which provides as follows: "A document filed in a proceeding to which these Rules relate is not open for inspection unless the Court or the Prothonotary, Deputy Prothonotary or Registrar, (as the case requires), so directs."

1. Mr Quill submitted that there were three bases on which I should exercise my discretion to allow access to the affidavit pursuant to that rule.  The first submission was the principle of the open court which as I understood him to mean was the desirability that the administration of justice be conducted in public under the gaze of the public and not in secret.

1. I have no doubt that there is a strong requirement that the administration of justice should be conducted in public.  However, there may be cases from time to time where it is not appropriate for material to be put into the public domain pending, for example, a criminal trial.

1. The second basis for Mr Quill's submission was that there was a public interest in this document.  He was able to rely on information obtained from reports of this matter in the Singapore Times, which as he submitted to me, indicated that allegedly a substantial sum of money had been misappropriated by a Singaporean citizen a substantial part of which found its way into Australia.  I will not say any more at this stage about the contents.

1. Having read the affidavit I accept that there is material contained in it that is of public interest.

1. The next ground that Mr Quill relied on was that the Director of Public Prosecutions did not oppose access being granted.  That is, in a sense, is a negative submission.  It would be very significant if the Director was opposing the application, but the fact that the Director is not opposing it is certainly not determinative, but it is a factor to be weighed in consideration of my decision. 

1. Obviously there is a reason for the prima facie situation which is dealt with in the Supreme Court (Criminal Procedure) Rules 1998, which is that prima facie documents filed in criminal proceedings are not open for inspection.

1. One can readily think of examples of how the inspection and subsequent publication in the media could be quite detrimental to a subsequent criminal trial, given the potential for tainting possible jurors.

1. Another example that  was mentioned was the fact that publication of material might hinder or seriously obstruct an ongoing investigation. 

1. Having read this affidavit it seems to me that there is nothing of that nature in it.  If I can now perhaps say a little bit more about it.  The fact is, as I understand it from the material, that the Federal Police were here acting at the behest of the Singaporean authorities.  The affidavit concerns the alleged misappropriation of many millions of dollars by a Singaporean citizen who is now in custody in Singapore.  The only local connection at this stage is that it would appear that some of the money came to Victoria and is currently held in a bank account in Victoria.

1. I can see no reason in these circumstances for not giving full rein to the principle of the open administration of justice. I will therefore direct that the affidavit of Mark Anthony John Creighton, sworn 24 September 2003, in support of the application for the restraining order, may be inspected in the normal way as provided under r.2805(1) of the Supreme Court (General Civil Procedure) Rules 1996.

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