Forsyth, N. v Rodda, P. & Anor Vereker, J. & Ors v Rodda, P.

[1986] FCA 502

CATCHWORDS

PMCTICE AND PROCEDURE - application by Ijirector of Public

Prosecutlons for order forbidding publicatlon f name of

applicant and of evidence or partlculars of proceedings whlch

mlght ldentlfy the applicant - contentlon that publlclty may have

effect preJudicla1 to trial of three others - whether prejudice

to the admlnistratlon of justlce - whether wide enough to Include

the posslbillty of pre~udice to other proceedlngs.

. Federal Court or' Australia Act 1976 55.17, 50

Llovd v. Costisan (1983) 48 A.L.R. 241.

Australian Broadcastlns Commission v. Parlsh (1980) 29 A.L.R. 228.

Neil Harrv Mark FORSYTH v. Philip John RODDA & Anor.

No. VG 297 of 1986

John Michele -VEREKER S. Ors. v. Phillrj John RODDA & Anor.

No. VG 296 of 1986

Jackson J. Melbourne

10 November 1986

.. . I

i

..

i

I i

IPI THE FEDERAL COURT OF AUSTRALIA	1
)

VICTORIA	DISTRICT	REGISTRY	)	No. VG297 of 1986
)

GENERAL DIVISION )

BETWEEN : NEIL W R Y MARK FORSYTH

Applicant

m: PHILIP JOHN RODDA

and

RICHARD DENIS O'DONOVAN

Respondents

No. VG296 of 1986

BETWEEN: JOHN MICHELE VEREKER,

IAN DOUGLAS SWSSON,

JOHN TERRENCE BROWN,

LESLIE EDWARD LITHGOW and

STEPHEN GERARD CONNELL

Applicants 1. !.

and

PHILIP JOHN RODDA

and

RICHARD DENIS 0 ' DONOVAN

Respondents I

m: JACKSON J.

m: 10th November 1986

W: Melbourne

-2-

MINUTES OF ORDER

THE COmT ORDERS THAT:

1. The appllcatlon be refused.

NOTE :

Settlement and entry of orders is dealt wlth In

Order 36 of the Federal Court Rules.

I

I..

i

IN THE FEDERAL COURT OF AUSTRALIA I I

VICTORIA	DISTRICT	REGISTRY	l	No. VG297 of 1486
I

GENERAL EIVISION l

BETWEEN : NEIL HARRY MARK FORSYTH

Applicant

- AND : PHILIP JOHN RODDA i

and

RICHARD DENIS O'DONOVAN

Respondents

No. VG296 of 1986

BETWEEN:

Appllcants

!

and

PHILIP J O H N RODDA ; J

and

RICHARD DENIS O'DONOVAN

Respondents

CORAM :	JACKSON J.
m:	10th November 1986

PLACE: Melbourne

._

- 2 -

REXSONS €OR JUDGMENT

S.17(1) of the Federal Court of Australia Act 1976

states the general proposltlon that the jurlsdictlon of the

Federal Court shall be exerclsed In open court but provislons

of the Act also make It apparent that there may be statutory

!

exceptlons to the generallty of that proposltion. One of the

exceptions 1 s that contemplated by	s.5G of the Act, which
provides that:-

"50. The Court may, at any tune during or after the

hearing of: a proceedlng In the Court. make such order

forbidding or restrlctlng the publication f

particular evidence, or the name of a party or

witness, as appears to the Court to be necessary In

order to prevent pre~udice to the adminlstration of

justice or the securlty of the Commonwealth."

I am asked in the present cases by counsel for the

Director of Public Prosecutions to make orders:-

L .	That publication of the name of Mr. Neil Harry
Mark Forsyth, the Applicant hereln be forbidden.
2.	That the publicatlon of any evldence or of any partlculars of the proceedings herem which
might identlfy Mr. Neil Harry Mark Forsyth as a
party to the application or as a person in any
way involved in the matters whlch are the
subject of the applicatlons be forbldden.
3 .	That there be such further Orders as the Court
deems meet. I '

and the essential ground on whlch the applicatlon 1 s based 1s

that the publicity arlsing trom the present proceedlnqs and

which may be given to the charge agalnst Mr Forsyth, may have

- 3 -

an effect preludlclal to the trlal of three persons, Collie,

Edwards and Grant. whose trial 1 s listed to commence In the

Supreme Court of Victorla in mid January 1987. The accused are charged wlth offences of consplracy to defraud the

Commonwealth and consplracy to evade the enforcement of a law

l

of the Commonwealth.	,/ , I
I -

The trial of the same three persons had earlier

commenced in the Supreme Court of Victoria on 3rd April 1986.

On the next day and durlng the opening of the case for the

prosecutlon, there appeared In the "Age" an artlcle reportlnq

some of the submlsslons of senlor counsel for Mr Forsyth at

committal proceedings which are the sub~ect of the appllcation

for revlew before me. In consequence of the publlcation of

that matter, the Judge presiding at the tim thought it

appropriate to discharge the ~ury. Mr Forsyth's role In qlvlng

an opinion, or opinlons, belng said by counsel to have made

h m in some ways "a very central figure in this trial".

The contention before me is that in terms of s.50, it

IS necessary "in order to prevent prejudice to the

administration of justice"-namely prejudice to the conduct of

that trial-to make orders of the nature presently sought.

I accept, as did Toohey J. In Llovd v. Costicran

(1983) 48 A . L . R . 241 at 243-244 that the expression "preJudice to the admlnlstration of justice" is sufficlently wlde to

I

I -4-

l - mclude the posslbility of prejudice arlslng In relation to

proceedings other than those lmmediately before the Court.

Nonetheless I take the n e w that the present appllcations

should be refused. I am not satlsfled that there 1s a real

posslbllity of pre~udice to the trlal of the three accused in

questlon by declinmq to make an order of the nature sought.

It 1s commonplace In the adminlstratlon of crlmlnal ~ustlce

that ~urles are told that they must decide cases on the basis

of the evldence before them, and that they must not take Into

account what they may have read about cases elsewhere. I see

no reason, In the materlal now before me, why the case could

not be dealt wlth In the same way. The clrcumstances In the

earlier trial in the Supreme Court no doubt gave rise to a

different result because of the particular circumstances with

which the Judge was then faced, 'including the tune at which

the publlcatlon occurred.

A s Bowen C.J. sald In Australian Broadcastinq

Commission v. Parish (1980) 29 A.L.R. 228 at 234, the

underlying assumptlon upon whlch s.50 1 s based 1s that of open

~ustice. That assumptlon may not be capable of belnq carrled

into executlon in some cases but, as matters stand, this does

not appear to me to be a case where It is not capable of being

carried into execution.

I refuse the appllcation.

, -5-

I / - '

I . I certify that the 4

i	preceding pages are a true copy of
1	the Reasons for Judgment herem of hls Honour Mr Justice Jackson.
I

L .

I '

No. VG 297 of 1986

Counsel for the appllcant:

R. Richter P.C. & J. Rapke

Solicltor for the applicant:

Director of Public Prosecutions

Counsel for the respondent/

appllcant:	P.J. O'Callaghan, R. Finkelstein
& A.J. Howard

! Solicltors for the respondent!

applicant:	Messrs Arthur. Robinson	&
Hedderwicks
No. VG 296 of 1986 Counsel for the applicant:

R. Richter Q.C. & J. Rapke

Solicitor for the applicant:

Director of Publlc Prosecutions

I

Counsel for the respondents/

Judd J.G.

applicants:

i

l

I	Solicitors for the respondents/
I	applicants: Messrs Phillips Fox
I

i 10 November 1986

I	Date of hearing:
I

i	t.'
L
I

I