DPP v Williams

[2004] VSC 360

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1434/2004

IN THE MATTER of an Application for Non-Publication on behalf of:

ROBERTA WILLIAMS

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JUDGE:	Cummins, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2004
DATE OF JUDGMENT:	9 September 2004
CASE MAY BE CITED AS:	D.P.P. v Roberta Williams
MEDIUM NEUTRAL CITATION:	[2003] VSC 360

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Courts – Administration of justice – Prohibition of material said to prejudice fair trial – Trial imminent – Dishonesty charges – Inherent power of Court to secure fair trial – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S. Grant	Theo Magazis & Associates
For the Director	Mr W. Morgan-Payler QC	Office of Public Prosecutions
For Media Organisations	Mr J. Quill	Corrs Chambers Westgarth
For "The Age" Newspaper	Mr T. Sedal	Minter Ellison

HIS HONOUR: 

1. I have before me an application on behalf of Mrs Roberta Williams for the prohibition of publication in any form - by printed word, electronically, picture, film or otherwise - of two matters.  One is the arrest yesterday of her - apparently in the gaze of some media organisations - on a number of charges of financial advantage by deception.  The second is the charging yesterday of her of those matters.  I am informed that the filing of those charges occurred in the Melbourne Magistrates Court this morning about one hour ago.

1. The matter came on before me late last evening, I having sat from 9 o'clock yesterday morning in numerous other matters.  It was ex parte because there had not been enough time to get everyone assembled.  I granted an Order overnight, and the matter is returnable this morning.

1. I do not consider that the power under s.18(1)(c) Supreme Court Act 1986 applies to this application. Section 18(1)(c) provides:

"The Court may (under circumstances mentioned in s.19(c)) make an order prohibiting the publication of a report of the whole or of any part of a proceeding or of any information derived from a proceeding."

In my view the publication of a report of Mrs Williams' arrest yesterday and of the laying of charges against her yesterday is not "a report ... of any part of a proceeding or of any information derived from a proceeding."  That is because there was no proceeding at that stage, but simply an arrest and laying of charges.  There is certainly no proceeding before this Court.

1. One then comes to whether there is an inherent power in this Court to control and protect its own processes.  Again there is no process before this Court in relation to Mrs Williams' arrest and charges on the financial advantage by deception matters.  So this Court cannot issue injunctive relief in relation to those matters because it is premature, not yet being before this Court.

1. However, before this Court there are serious drug charges against Mrs Williams which are due to be heard by a judge and jury in less than three weeks; I think one day less than three weeks in fact. I have previously in the matter of Mr George Williams senior and Mr Carl Williams, the husband of Mrs Williams, and other persons, refused orders in relation to sought - for prohibition of publicity ([2004] VSC 209). However, that matter I think is different from this: first, for the temporal reason that this affected trial is three weeks away, not three months away or next year and second, this is not general publicity but publicity of very specific allegations of dishonesty, namely charges of financial advantage by deception. The courts have said time and again that juries are robust and my experience certainly is that. Juries are well able to put aside antecedent publicity writing around cases, as often happens, and juries have demonstrated time and time again that is what they can do, and that was one of the bases of my ruling in May. If Mrs Williams' drug trial was being held next year, for example from 31 January next year, the first day of the legal sittings year next year, I would be minded not to grant the relief sought by Mr Grant. However, the temporal matter is critical in my view, namely Mrs Williams' trial is three weeks away, and if the Order is not granted the prospect arises that three weeks before her trial there will be a substantial quantum of publicity about her arrest yesterday on dishonesty matters.

1. I do have in my view an inherent jurisdiction to protect the integrity and the justice of the drug trial starting on the 29th of this month. 

1. The question then arises as to whether I ought to make any Order in relation to protecting the integrity of the trial that is currently before this Court and imminently to be heard.

1. Mr Quill, in his characteristically helpful submissions, supported by Mr Sedal, has submitted first that the inherent power is limited to matters of immediate physical proximity, such as people going in and out of the courtroom.  In my view the power is much more fundamental than that.  It goes to ensure that the process before the Court is protected, that its integrity is secured.  There is not only a retrospective contempt power, which of course there is, but there is also an ongoing inherent power in the Court enabling the stream of justice to be protected to ensure justice.  Thus I do have the power if a matter is before the Court - the dishonesty matters are not before the Court, but the drug trial certainly is - and is about to be heard. 

1. I think Mr Quill's best arguments, supported by Mr Sedal, are that the law traditionally and rightly holds the fact that a person is charged with an offence does not mean they are guilty, and of course it does not;  that the law holds the fact that a person is charged with an offence does not involve an imputation on their character, and again it does not;  and that the fact that a person is charged with an offence involves that a person is presumed innocent until proved guilty.  Mr Sedal has said, and I think in a good argument, that not only is that the law, but it would be dangerous to depart from it.  There is authority strongly to support those submissions, notably Mirror Newspapers Ltd and Harrison (1982) 149 C.L.R. 293, particularly at 300-301, where Mason J, as then he was, said:

"The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty.  Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted."

Further, Mr Quill says an a fortiori case is Attorney-General v Guardian Newspapers Ltd and Another (1992) 3 All ER 38, where it was held that publicity concerning a named defendant before a jury during the jury trial of another charge did not give rise to a serious prejudice as "the practical risk of the publication engendering bias in a jury or ordinary good sense was insignificant" (per Mann L.J. at 45).

1. However I have a lingering and deep concern that Mrs Williams' fair trial will be rendered more difficult by publicity, which I expect will not be insubstantial, of her arrest on dishonesty charges.

1. Mr Quill is quite right that the charges have got nothing to do with drugs and nothing on their face to do with the charges she is facing on 29 September.  But they have got one very relevant thing to do and that is they are to do with her.  She is charged with dishonesty offences and she is about to face a jury.

1. I think in the end, one has to be guided by one's sense of fairness and justice.  My sense of fairness and justice is that where the applicant is facing a jury in three weeks' time, and is going to be publicised for being charged with dishonesty offences, the Court ought not to permit that to happen in her interests and in fairness to her and in the interests of a fair trial.

1. I know, as Mr Quill has said, that a judge can direct a jury to put it aside, and I agree that this is not a matter of mental gymnastics.  But I think in the end, one should be guided by one's sense of fairness and I act accordingly.  I propose to extend the injunction I made yesterday until the conclusion of her 29 September trial, or until other order.

1. Accordingly I order that any report in print or by film, photograph of otherwise, of:

(1)       Mrs Williams' arrest yesterday on dishonesty charges;  or

(2)       the laying of the charges against her yesterday or filing of them today

be prohibited until the end of her 29 September drug trial or until further Order.