Harvey v County Court (Vic)
[2006] VSC 293
•23 August 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 8645 of 2005
| MICHAEL HARVEY and GERARD MCMANUS | Plaintiffs |
| v | |
| COUNTY COURT OF VICTORIA & ORS | Defendants |
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JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 June 2006 | |
DATE OF JUDGMENT: | 23 August 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 293 | |
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Criminal procedure – Evidence – Court’s power to require person to give evidence before trial – “Basha inquiry” – Crimes (Criminal Trials) Act 1999 s11 – Magistrates’ Court Act 1989 s56A, clause 24A of schedule 5
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr W T Houghton QC Mr D P Gilbertson | Corrs Chambers Westgarth |
| For the First Defendant | No appearance | |
For the Second Defendant | Mr M Cahill | Commonwealth Director of Public Prosecutions |
For the Third Defendant | No appearance |
HER HONOUR:
Introduction
On 20 February 2004, the Herald Sun newspaper published an article, headed “Cabinet’s $500M Rebuff Revealed”, about Commonwealth Government cutbacks to war veterans’ entitlements. The article appeared to be based on what it described as “secret documents seen by the Herald Sun”, “secret papers”, “confidential documents”, Ministerial “speaking notes” and “the Clarke Review” (a report not in the public domain). The plaintiff journalists were named as the authors of the article.
In March 2004, officers from the Australian Federal Police spoke to the journalists about the alleged leaking of information to them by a public servant. Although they did answer a number of police questions, in accordance with their code of ethics the journalists refused to reveal the source of the documents and information referred to in the article. They also declined to provide a formal statement.
The third defendant, Desmond Patrick Kelly, was employed for many years by the Commonwealth Department of Veterans Affairs. In August 2004, he was charged with an offence contrary to s70(1) of the Crimes Act1914 (Cth), by reason of his having communicated confidential information to an unauthorised person, namely, the journalists.
No statement from the journalists was included in the hand-up brief served on the accused under schedule 5 to the Magistrates’ Court Act 1989 (Vic) (“Magistrates’ CourtAct”).
There was a committal mention in the Magistrates’ Court in November 2004. It is not entirely clear, but it seems that the accused either elected to stand trial, or did not oppose being committed to stand trial, in the County Court. Accordingly, there was no cross-examination of any witness in the Magistrates’ Court.
On 2 June 2005, the second defendant, the Commonwealth Director of Public Prosecutions (“DPP”), applied to the Magistrates’ Court, pursuant to clause 24A(1) of schedule 5 to the Magistrates’ Court Act, for orders that the evidence of each of the journalists be taken at a time and place to be fixed by the court. On 20 June 2005, a magistrate rejected the DPP’s application. There are no written reasons for that decision. It seems that the magistrate rejected the application on one or both of the following bases: first, that clause 24A was not intended to be used to compel reluctant witnesses to give evidence; secondly, as the committal process had been completed, that was the end of the matter in the Magistrates’ Court[1].
[1]I query the correctness of the magistrate’s decision. In particular, the magistrate’s second finding is directly contrary to the express terms of clause 24A, which only comes into operation after an accused person has been committed for trial. As I am not reviewing the magistrate’s decision, and do not have his full reasons for decision, I will say nothing more about the correctness or otherwise of his decision.
On 24 June 2005, the DPP applied to the County Court, pursuant to s11(1) of the Crimes (Criminal Trials) Act 1999 (Vic) (“Criminal Trials Act”), for orders that the evidence of the journalists be taken at a time and place to be fixed by the court. On 5 July 2005, Chief Judge Rozenes heard and determined the application. At that time, the trial was listed to commence on 8 July 2005. Counsel for the journalists and the accused both opposed the making of the orders. His Honour ordered that the journalists attend and give evidence on 7 July 2005. It is those orders which are the subject of challenge before me.
What happened after 5 July 2005 is not legally relevant to my consideration of the correctness of the orders made that day. However, it is helpful to briefly describe some subsequent events, as they provide the context in which this case has arisen.
When the journalists were sworn and examined on 7 July 2005, they were asked questions as to the identity of the source of documents referred to in the article. Each refused to answer on the ground that it might tend to incriminate him. The matter was then adjourned so the DPP could provide the journalists with indemnities pursuant to s9(6) of the Director of Public Prosecutions Act 1983 (Cth). Those indemnities were not provided until late July. The general effect of the indemnities was to preclude the DPP from using in evidence against the journalists (other than in any proceedings against them for perjury) any information or document disclosed, or obtained as a direct or indirect consequence of any disclosure, by them.
The matter came on again before the Chief Judge on 23 August 2005. On that occasion, both of the journalists answered a number of questions about the documents upon which they had relied to prepare the article, and about one of their phone numbers. However, they both refused to answer questions directed to the source of their information, notwithstanding directions from the learned judge that they answer those questions. The Chief Judge ruled that the journalists were not excused by any so-called “journalists’ privilege” from answering the questions.
Various procedural steps were then taken to charge the journalists with contempt of court for refusing to comply with the judge’s directions to answer the questions. The hearing of those charges has been adjourned, pending the determination of this case.
In December 2005, the DPP served the accused with notices of additional evidence in respect of the journalists.
In January 2006, Mr Kelly was tried and convicted in the County Court. Neither of the journalists was called to give evidence at the trial. It seems that they were not called because the accused made relevant admissions, which were given in evidence pursuant to s149A of the Evidence Act 1958 (Vic).
The journalists’ criticisms of the decision below
This is not an appeal from, or a review of the merits of, the decision of 5 July 2005. Rather, the journalists seek an order in the nature of certiorari, quashing the orders made by the first defendant, the County Court, as constituted by the Chief Judge. They allege that his Honour made the following errors:
(a) He misconstrued s11(1) of the Criminal Trials Act. Properly construed, an order under that section should only be made where there is a serious risk of an unfair trial if the defence is not given an opportunity to examine the witnesses in the absence of the jury.
(b) There were no proper grounds upon which he could be satisfied that it was in the interests of justice that the journalists’ evidence be taken.
(c) He failed to give reasons for his conclusion that it was in the interests of justice that the order be made.
(d) He failed to give adequate weight to the fact that the making of an order might expose the journalists to double jeopardy, in that they would be required to identify their sources at the pre-trial hearing as well as at trial.
(e) He failed to give adequate weight to the fact that the accused, Mr Kelly, opposed the application.
(f) He failed to give adequate weight to the fact that the Crown had failed to avail itself of the opportunity to examine the journalists in the Magistrates’ Court.
(g) He should not have taken into account the likelihood that a “Basha inquiry” would be held on the first day of the trial.
All of the issues except for issue (b) are said to involve an error of law on the face of the record. Issues (a), (b) and (c) are also said to involve jurisdictional error.
There is no dispute that this court may grant relief in the nature of certiorari to set aside a jurisdictional error, or an error of law on the face of the record, by the County Court. There would be a jurisdictional error if, as the journalists allege, his Honour had mistakenly asserted or assumed the existence of jurisdiction, or misapprehended or disregarded the nature or limits of his functions or powers in a case where he correctly recognised that jurisdiction did exist[2].
[2]Craig v State of South Australia (1995) 184 CLR 163; Coal and Allied Operations v AIRC (2000) 203 CLR 194.
The “record” for these purposes includes “any statement made by a tribunal or inferior court whether made orally or in writing …, of its reasons for a decision”[3]. It was common ground that that expression is broad enough to include something said in the course of the hearing of the argument, as long as it was clear that it was “a reason for decision” and not merely a point made for discussion purposes.
[3]Section 10 of the Administrative Law Act 1978 (Vic).
Section 11 of the Criminal Trials Act
The Chief Judge ordered the journalists to attend and give evidence before trial under s11, which is in the following terms:
“Taking of evidence from a witness prior to trial
(1) Prior to the day on which a trial is due to commence, a party to a criminal proceeding may apply to the court for an order that the evidence of a person be taken at a time and place fixed by the court.
(2) An application may only be made under sub-section (1) if –
(a) the person was not available to be examined as a witness at the committal proceeding; or
(b) a statement from the person was not included in a hand-up brief served on the accused under schedule 5 to the [Magistrates’ Court Act] –
and the person was not examined under section 56A of the [Magistrates’ Court Act].
(3) An application under sub-section (1) must state the grounds on which an order is sought.
(4) The court must not make an order under sub-section (1) unless it is satisfied that it is in the interests of justice that the evidence of the witness be taken.”
The explanatory memorandum for the Crimes (Criminal Trials) Bill relevantly said that the proposed s11:
“sets out the grounds upon which a party may apply to have the evidence of a witness taken prior to trial. In most cases the defence will have had an opportunity to cross-examine a witness at the committal proceeding. If that opportunity has not been available, the defence may wish to cross-examine the witness in the absence of the jury. However, it is not appropriate for this to occur in all cases. Parties will not automatically be permitted to examine witnesses who were not examined at the committal proceeding, even where the magistrate refused to grant leave to examine witnesses at that stage. A preliminary examination will only be permitted where there is a serious risk of an unfair trial if the defence is not given the opportunity to examine the witness in the absence of the jury.
This provision is intended to replace the use of the Basha inquiry….”
Basha inquiries
Ordinarily, an accused person charged with an indictable offence will have an opportunity to cross-examine all Crown witnesses at a committal hearing. But sometimes, for various reasons, a Crown witness is not available to be called at the committal. In order to ensure a fair trial, the trial judge may find it necessary to conduct proceedings, preliminary to trial, in which evidence which was not called at the committal be given. Such proceedings are commonly referred to as a “Basha inquiry” or “Basha hearing”, after the NSW Court of Appeal decision in R v Basha[4].
[4](1989) 39 A Crim R 337 per Hunt, Carruthers and Grove JJ. In that case, a relevant Crown witnesses had not been called at the committal, as he was as that time still working as an undercover police officer.
The trial judge’s power to order such a hearing comes not from statute, but from the court’s inherent power to prevent unfairness in a criminal trial. The prejudice created by an insufficiency in the committal might be removed by staying proceedings upon the presentment or indictment (as the case may be), and thereby forcing the Crown to lay a fresh charge or apply to set aside the committal order, but:
“[i]t is obvious, however, that there would usually be many other, more efficient, ways in which that prejudice might be removed. I have myself in the past permitted an accused to cross-examine a new witness on a voir dire before he was called in the trial. We have been told that other judges have also done so, prior to any evidence being called in the trial. Just how the prejudice is to be removed is for the Crown, not the courts, to determine. On the other hand, of course, the issue of whether the prejudice has in fact been removed will in the end be for the trial court, not the Crown, to decide.”[5]
[5]Basha, per Hunt J at 339.
In DPP v Denysenko[6], the Victorian Court of Appeal endorsed the use of Basha inquiries in Victoria, in cases where it is in the interests of justice that the accused be able to cross-examine, before the trial gets underway, witnesses whose evidence was not given at the committal. However, Brooking JA made the following observation:
“… my impression is that ‘Basha’ inquiries have been held in Victoria on occasions when the interests of justice did not require them. A judge asked to allow cross-examination in this way should carefully consider whether to do so is warranted. The mere fact that notice of additional evidence is given is of course not in itself sufficient reason for a ‘Basha’ inquiry. Regard must always be had to the circumstances of the particular case, including in particular the nature of the additional evidence.”[7]
[6][1998] 1 VR 312 per Brooking and Tadgell JJA, and Hedigan AJA.
[7]At 317.
In Williams & Ors v DPP[8], Gillard J affirmed that Basha inquiries are not to be held “as of right”:
“They are only appropriate where to deny the accused the opportunity would result in an unfair trial. It is observed that they usually only take place where notice of additional evidence is given after committal. I would not confine the procedure to additional evidence because it is grounded on overcoming a possibility of an unfair trial but it would be only in special circumstances that an inquiry would take place in the absence of additional evidence. The test must always be – would the trial be unfair if a Basha inquiry did not occur?”[9]
[8](2004) 151 A Crim R 42.
[9]At [41], citing R v Sandford (1994) 33 NSWLR 172 at 181 per Hunt CJ at CL.
Other relevant legislation
There are two pre-trial procedures available in the Magistrates’ Court under the Magistrates’ Court Act, which have some relevance in this case.
Clause 24A of schedule 5 is the provision under which the DPP sought, unsuccessfully, to have the journalists attend to give evidence in the Magistrates’ Court, earlier in June 2005. It relevantly provides:
“Evidence taken after accused person directed to be tried
(1) If a defendant has been committed for trial, the Director of Public Prosecutions or the defendant may apply to the court for an order that the evidence of a person be taken at a time and place fixed by the court.”
Subclauses (4) to (7) of clause 24A prescribe in some detail the circumstances in which an order under subclause (1) may be made and the matters to which the court must have regard in considering whether to make such an order. It is not necessary for me to consider those provisions in detail.
The second relevant provision is s56A, which was originally introduced into the Magistrates’ Court Act in 1999, shortly before the enactment of the Criminal Trials Act, and was amended the following year. At the relevant time, it provided:
“(1) The court may, on the application of the informant at any time before the committal mention date, if satisfied that it is in the interest of justice to do so, make an order requiring a person to attend before the court on a date fixed by the court for the purpose of being examined by or on behalf of the informant or producing a document or thing or both.
(1A) An application under sub-section (1) –
(a) may only be made if a charge has been filed against the defendant in relation to the matter to which the proposed examination relates; and
(b) may be made with or without notice to the defendant.
(1B) In an application under sub-section (1), the informant must advise the court of the following information –
(a) whether the person sought to be examined –
(i) has been asked by the prosecution to make a statement; and
(ii) has refused to do so; and
(b) whether the informant is aware whether the person sought to be examined has obtained legal advice concerning the proposed examination; and
(c) whether the person sought to be examined is or has been a suspect with respect to the matter to which the proposed examination relates; and
(d) whether the person sought to be examined has been made aware of the application; and
(e) any other information provided by the Rules.
(1C) …
(2) The defendant –
(a) is not a party to an application under sub-section (1); and
(b) may not cross-examine a witness attending the court under an order made under sub-section (1); and
(c) may not address the court on an application under sub-section (1); and
(d) may attend a proceeding held under an order made under sub-section (1) and, if the court determines there are exceptional circumstances, may address the court on the proceeding personally or through a legal practitioner representing him or her.”
The arguments and decision below
Before considering the Chief Judge’s formal ruling, it is desirable to consider in some detail just what was and was not argued below, as well as his Honour’s various observations during counsel’s submissions. Those submissions were, at times, not easy to follow, which led to frequent questions and comments by the learned judge. I have tried to distil what I understand to be the essence of those submissions.
One point which was undisputed below (and before me) is this: journalists have no privilege from being required to disclose the sources of their information[10].
[10]John Fairfax & Sons v Cojuangco (1988) 165 CLR 346; Nicholls v DPP (South Australia) (1993) 61 SASR 31; R v Bristol Crown Court (1987) 85 Cr App R 190.
The DPP’s submissions
The DPP relied upon the following matters. Based on what the journalists had told the police, the Crown had formed the opinion that the journalists could give material evidence at the trial, which was due to start in a few days. The journalists were competent, compellable and reliable witnesses, who could give evidence as to material facts, therefore the Crown was obliged to call them. That material evidence related to how, when and where the journalists received the information upon which the article was based, as well as the press gallery telephone number for the first plaintiff, Mr Harvey. The Chief Judge observed: “So you wouldn’t be frivolous in the discharge of your duties as prosecutor from calling those witnesses cold if necessary.”
The journalists had been subpoenaed to give evidence at the forthcoming trial, but had declined to give a formal statement. No notice of additional evidence had been given to the accused. The Crown was entitled to call the journalists “cold”[11] at the trial, at which time the accused might call for a Basha inquiry. That would cause disruption in the course of the trial. Counsel said:
“we’re seeking to avoid that situation by having them examined so that the defence do know what they can say or what they’re prepared to say.”[12]
[11]Although counsel for the DPP, defence counsel and the judge all made frequent reference to calling a witness “cold”, it is not a term of art and was never precisely defined below. It is not entirely clear to me that they were all using it to mean the same thing. Counsel for the DPP used the term to refer to a witness who had declined to make a statement and not been examined at any preliminary hearing.
[12]Page 3 of the transcript of 5 July 2005.
Counsel referred to the statement in the explanatory memorandum which says that s11 is intended to be a provision that formalises the availability of a Basha-type procedure. Counsel noted the comments of Gillard J in the Williams case[13], and Gillard J’s reference to the underlying principle of the Basha inquiry being the court’s obligation to ensure a fair trial.
[13]See [23] above.
Counsel also argued that the concept of “a fair trial” meant a trial which was fair to the Crown as well as the defence. It was said that if there is to be a trial which is fair to the Crown, then all relevant witnesses should be before the court. I note that this suggestion that the Crown has some sort of right to a fair trial was expressly disavowed before me by counsel for the DPP. Most importantly, this suggestion does not seem to have found favour with the Chief Judge or formed any part of his reasoning.
The defence submissions
The main defence submission seemed to be that the s11 application was “incompetent” because the Crown cannot “cold call” witnesses. At first it was said that the Crown could not “cold call” a witness who has been uncooperative, either in the sense of being hostile or simply unwilling to make a statement or otherwise assist. Later, it seems that defence counsel was putting the matter more broadly than that: the Crown cannot “cold call” any witness (a proposition which the learned judge described as “bold”). Here, the journalists were not named on the presentment and no notice of additional evidence had been given in respect of them. Therefore, it was argued, the Crown could not call them “cold” at trial.
It was argued that the Crown could not provide a witness statement or notice of additional evidence in respect of the journalists, which would be other than a “sham”. That is because it would state that the journalists were prepared to give evidence about their sources, when they were not prepared to do so. Calling them would be futile and likely to cause prejudice to the accused if they were called before the jury and “said nothing”.
The judge did not accept that submission and pointed out that, even without compelling the journalists to name their sources, there was other relevant evidence which the journalists could give, which was known to the Crown and could form part of a circumstantial case against the accused. He said they could prove “the continuity of information and the opportunity for it to be [the accused] who communicated that information. That must be relevant and admissible evidence.” His Honour said that notice of such evidence could clearly be given to the accused, at which point the accused would be likely to want to have a Basha hearing, to see how far the journalists’ evidence might go.
Defence counsel accepted that the journalists could not lawfully refuse to answer a question as to their sources. But whether lawful or unlawful, he submitted that it was clear that the journalists would refuse to answer such questions. He said that would put the accused in the following difficult situation:
“…what does he do? Does he then put it to the journalist, ‘It was not I who gave you that document’ or does he sit quietly and let the jury see that silence and draw its conclusions – whether or not there are directions to the effect that they cannot is immaterial – there is the principal Crown witness refusing to assist the Crown in answer to any question fundamental to the Crown case and potentially the defence case?”[14]
[14]Page 18 of the transcript of 5 July 2005.
The Chief Judge said he did not know what the journalists would in fact do if asked to reveal their sources. His Honour observed:
“I don’t think we can jump at that until we know what’s going to happen. It may be the case that the witness, when asked the question, ‘Who gave you this information?’ says ‘I refuse to answer because my journalistic ethics prevent me from doing so’, and then the judge then says ‘If you don’t answer the question, I’ll hold you in contempt of court’, and the witness then says, ‘All right, well, I will answer the question.’ Or the witness says, ‘Well, I don’t care what you do your Honour, with the greatest of respect of course, I’m not going to answer the question’, in which case the judge will deal with the witness for refusing to answer a question properly put. But that’s all down the track. At the moment the question is this: The Crown is entitled to call a witness cold if it so wants to. It’s just a risk that the Crown takes. The prejudice that comes about as a result of calling a witness cold is that the witness is cold to the knowledge of the defence. The defence don’t know what the witness is going to say and they complain about it.”[15]
[15]Pages 18-19 of the transcript of 5 July 2005.
When the judge later offered to seek confirmation as to what the journalists might in fact do if asked to reveal their sources, the journalists’ counsel rejected the suggestion that his Honour adopt that course. So, his Honour was left in the position of not being certain what the journalists would actually do in that situation.
The judge said on several occasions that the obvious way to remove any prejudice to the accused would be to give the defence an opportunity to cross-examine the “cold” journalists prior to trial, in a s11 hearing.
The Chief Judge also said that he was realistic enough to understand that at least part of the defence motivation in opposing the application was:
“it’s a good idea not to have these journalists called in case they say what your client doesn’t want to hear them say. There’s every reason why you should be motivated at the moment to try to have the evidence excluded. Once that no longer is possible, the next question is to try to make sure you get a fair trial. I’m sure you’ll be saying that if the trial judge was to rule that their evidence was capable of being called, you’d want to hear what they have to say before they were called.”[16]
[16]Page 42 of the transcript of 5 July 2005.
But defence counsel did not want the opportunity to hear what evidence the journalists would give, or to cross-examine them; rather, he wanted to stop them from being called at all, on the ground that they could not be called “cold”.
In the alternative, if the application was competent, then defence counsel argued that the judge should exercise his discretion so as to refuse the application. It was argued that the Crown could have availed himself of the investigative procedure under s56A of the Magistrates’ Court Act, but had “elected” not to. “The Crown’s had its chance” and it is now too late. His Honour’s response to that submission was:
“See, what troubles me is this. That you put up into the balance the following: (1) You say there was other legislation they could have used but they elected not to. (2) There was a provision available to the Magistrates’ Court [clause 24A] which they tried to use but did not succeed in doing so. But against that I would say, ‘Not that you supported that, and nor should you have, but the point is that they had a go.’ And (3) this is late because it’s close to the trial date and therefore for those reasons the Crown should be shut out if they apply on the day of the trial. Sorry, should be shut out now. I say to you, ‘Well, what happens if they apply on the day of the trial and why shouldn’t I have regard to the reality of the situation that they might do that? They might not be capable of being shut out from doing so.’ The Crown can always change its case and call evidence that it sees as relevant and advancing the interests of justice. And the next question is whether the trial judge can ensure that in those circumstances a fair trial can be held.
… Because when you’re asking me to exercise my discretion …, then I should have regard to whether or not in any event there would be a remedy that the Crown would have, and if that remedy was a real remedy in the sense that the trial judge would permit the evidence to be led and then give you the opportunity, I should, in the management of the trial, exercise my discretion in favour of the Crown rather than opposed to it, assuming that I am satisfied that this section is available for that purpose.”[17]
[17]Pages 38-39 of the transcript of 5 July 2005.
The judge asked defence counsel whether he was saying that the judge “should not have regard to the possibility or probability that a trial judge would permit the evidence to be led and grant you a Basha inquiry as a remedy to ensure fairness.” Defence counsel said he was not suggesting that.
The journalists’ submissions
The journalists’ submissions below were brief and confined to the following point. It is clear from the explanatory memorandum that s11 was intended to “statutorily enshrine” the Basha inquiry, notwithstanding that any party could apply for a preliminary examination. A Basha inquiry is a device available to assist the accused, to make sure that the accused is not caught by surprise. It is not intended to be used as an investigative tool after the committal. Here, what the DPP is seeking to do is to use the s11 procedure for investigative purposes. That should not be permitted.
Counsel for the journalists did not develop or even adopt any of the other submissions made by defence counsel.
Submissions in reply
Counsel for the DPP raised several discretionary matters in reply. He rejected the defence submission that the failure to utilise the investigative power under s56A of the Magistrates’ Court Act should prevent the DPP from succeeding under s11. There were only a few months between the laying of the charges and the committal mention, and the failure to apply under s56A was not a culpable one or one which should be held against the Crown.
Counsel said that it was a relevant consideration for the judge to take into account what was likely to happen at the trial. The journalists had been subpoenaed and the Crown was obliged to and intended to call them. There was no basis for regarding them as unreliable. Whilst nobody knew what the journalists would say at trial if asked to reveal their source, the Crown was aware of other relevant and admissible evidence which they could give when called.
The Chief Judge’s reasons
The judge gave ex tempore reasons for decision at the conclusion of submissions. He did so, well aware of the fact that the trial was due to start in 3 days time and, if there was to be a s11 hearing, it would need to occur in the interim.
His Honour commenced by referring to the various procedures available under s56A and clause 24A of the Magistrates’ Court Act. He noted that no application had been made by the Crown to avail itself of the s56A procedure, even though it knew that the journalists were reluctant witnesses. He then referred to the DPP’s unsuccessful application to a magistrate pursuant to clause 24A.
He moved on to consider s11 and the explanatory memorandum relating to it. He noted that the draughtsperson clearly had in mind that s11 would constitute “a statutory version of what had previously been accommodated under the heading of a Basha inquiry.” His Honour said that in fact s11 was not so constrained in its terms and “the clear indication of the legislature was that the facility would be available to either party to the proceeding”. However, beyond noting the fact that either party could make a s11 application, his Honour did not need to, and did not, discuss in what other respects, if any, s11 differed from a Basha-type inquiry.
His Honour found that the Crown was entitled to assume that each of the journalists would give “evidence which goes to establish a chain of communication which leads back to the accused, albeit by inferential reasoning rather than by direct evidence. And so the witnesses are able to give probative evidence before the jury in support of the Crown case, irrespective of whether or not the ultimate question to be asked of one of them is not to be answered because of a view held by that witness that there is some protection to be had in a privilege … not recognised by the law.”[18]
[18]Page 66 of the transcript of 5 July 2005.
He said that he was reasonably satisfied that on or shortly prior to the trial date, the Crown would serve a notice of additional evidence setting out that it intended to call the journalists and summarising the evidence it believed they might give. He noted that the journalists were under subpoena to attend the trial and that the Crown intended to apply to add their names to the indictment.
“Whether or not application is then made by [defence counsel] for a Basha type inquiry before the trial judge, or whether the judge at the suggestion of the Crown, or his own or her own volition decides to hold such an inquiry will be a matter for the trial judge, but I would not be surprised if one way or another there was a Basha inquiry held on the first day of the trial to find out precisely what these witnesses will say.
And it is because I am satisfied of that position, or at least sufficiently satisfied of that position, that I need to consider whether in those circumstances s11 has a real role to play to achieve the purposes for which the [Criminal Trials Act] was enacted, namely to permit proper management of the criminal trial and to avoid as much as possible surprise on the day of trial.
My concern, and this concern was echoed by [the journalists’ counsel]… was that s11 should not be used as a tool to advance the investigative process of the police. Were I satisfied that that was the purpose of this application I would have no hesitation in dismissing it.
There are a number of reasons which persuade me that that is not the purpose behind this application.”[19]
[19]Pages 66-7 of the transcript of 5 July 2005.
His Honour then went on to explain the reasons why he was satisfied that the true purpose behind the application was not investigative. That factual finding as to purpose is not challenged.
He concluded his ruling with the following:
“Insofar as I have a discretion to make this order I am satisfied that it is in the interests of justice firstly that it be made, and secondly that it be made at this point in time, bearing in mind that the trial is to commence this Friday. Further, I am satisfied that the failure of the Crown to make application at any earlier point in time, either under this section or pursuant to any other section of the [Magistrates’ Court Act], is not such as should shut out the applicant from making this application.”[20]
[20]Page 68 of the transcript of 5 July 2005.
Did the judge misconstrue s11?
In paragraph 1 of their amended originating motion, the journalists plead that the Chief Judge misconstrued s11(1), in that an order should only be made where there is a serious risk of an unfair trial if the accused is not given an opportunity to examine witnesses in the absence of the jury. Their submissions may be summarised as follows. It is immaterial that the procedure under s11 may be initiated by any party to the proceeding, including the Crown. The purpose or object of the provision is to enshrine the Basha inquiry in statutory form, regardless of who makes the application. Its purpose is to avoid possible prejudice to the accused. It is not to be used as an instrument of further investigation and evidence gathering by the Crown.
This entire ground of review is based on the assertion that the Chief Judge decided that the DPP could use the s11 procedure as an instrument for further investigation and evidence gathering. That assertion is simply incorrect. Although his Honour said that the s11 procedure went further than the Basha-type inquiry (in that any party could apply), and might also permit the “taking of evidence” in advance of trial[21], his Honour was adamant that s11 could not be used by the Crown for investigative purposes. It is clear that he concluded that there was indeed a serious risk of an unfair trial if the accused was not given an opportunity to examine the journalists in the absence of the jury.
[21]The possibility that the section might also allow the taking of evidence in advance of trial (for example, for a witness who was not going to be available at trial) was a matter which was briefly discussed by defence counsel and the learned judge, but not pursued, as it was not relevant to this case. Nor is it necessary, given the way the journalists’ case was framed, for me to define the precise limits of s11, or to consider to what extent there is any conflict between the explanatory memorandum and the section.
No jurisdictional error or error of law on the face of the record has been established and this ground of review must fail.
Basha inquiry
In paragraph 4(d) of the amended originating motion, the journalists plead that the judge took into account an irrelevant consideration, namely, that it was likely that a Basha-type inquiry would be held on the first day of the trial.
This seemed to be a rather curious ground of attack, given that it was a fundamental part of the journalists’ case that the whole purpose or object of s11 was to enshrine the Basha inquiry in statutory form, regardless of who made the application. Accordingly, I questioned the journalists’ senior counsel at some length as to why it was said to be irrelevant for the judge to have had regard to the likelihood that a Basha-type inquiry might occur. Counsel’s initial response was that it was “purely a matter of speculation” for the judge to predict that the accused would seek a Basha inquiry before the trial commenced, given his opposition to the journalists being called at all. However, counsel did concede that if the evidence had been such that it was absolutely certain that there would be a Basha inquiry, then it would have been relevant for the learned judge to have had regard to that. I observed that it sounded as if the journalists were trying to attack the merits of the decision.
After reflecting on the matter overnight, the journalists’ counsel agreed that it was not open to me to review the merits of his Honour’s conclusion as to the likelihood that a Basha inquiry would occur if he did not make an order under s11. However, he persisted with a relevance attack, albeit on a slightly different basis:
“… we simply say it was an irrelevant consideration because his Honour in fact was not ordering a Basha inquiry, he was ordering an inquiry by which the Crown could seek to strengthen its case against the accused, over the opposition of the accused, so that’s simply how we put that point …”[22]
[22]T69.
This is just a different way of putting the submission that what was being ordered was an inquiry for the investigative purposes of the Crown. That is not what his Honour was in fact ordering (or thought he was ordering).
In his ruling, the judge said he would “not be surprised” if there was a Basha inquiry held on the first day of the trial, whether instigated by defence counsel or the trial judge. He said he needed to consider whether, in those circumstances, s11 had a real role to play to achieve the purposes for which the Criminal Trials Act was enacted, namely to permit proper trial management and to avoid as much as possible surprise on the day of trial. These matters were very much a relevant consideration, given that the stated purpose of the Act is to increase the capacity for judicial management of criminal trials and to make other changes for the purpose of improving the efficiency of criminal trials[23]. No reviewable error has been made out.
[23]Section 1 of the Criminal Trials Act.
The accused’s attitude to the application
In paragraph 4(b) of the originating motion, the journalists plead that the judge failed to give proper weight to the accused’s opposition to the s11 application. The journalists argued that “there would have to have been some pretty extraordinary circumstances for an order to be made under s11 over the opposition of the accused.” It was said that the mere fact that the accused objected to an order being made under s11 should have been sufficient to defeat the application.
In so far as it is implicitly asserted by the journalists that an accused person has some say in who the Crown will call at trial, that is not correct. The Crown is obliged to call all competent and compellable witnesses who are able to give material evidence, unless there is some basis for regarding the witness as unreliable (in the sense of being dishonest or untrustworthy)[24]. In any criminal case, some of the evidence called by the Crown may be harmful to the accused, some favourable and some neutral. The accused has no general right to prevent the Crown from calling a witness whose evidence is expected to be harmful to the defence.
[24]R v Apostilides (1984) 154 CLR 563; R v Armstrong (1998) 4 VR 533; Richardson v R (1974) 131 CLR 116.
Here, the journalists were competent and compellable witnesses who could give the material evidence which was identified by the learned judge. It was not suggested that they were unreliable in the relevant sense.
The Crown could have called them “cold” in the sense in which the DPP used that term, namely where they had not made a witness statement or given evidence at a preliminary hearing[25]. Whilst there is no statutory requirement that the Crown give notice of additional evidence in respect of such a witness, the common law rule is that the Crown must give reasonable notice to the accused of its intention to call an additional witness and a summary of the evidence the witness is expected to give[26]. Here, the judge accepted that the Crown intended to call the journalists at trial and would give notice of additional evidence before the commencement of the trial.
[25]R v Faure & Goussis (Ruling No 1) [2006] VSC 166; R v Heinicke (1998) 198 LSJS 2; R v Utans (1982) 29 SASR 592.
[26]R v Devenish (1969) VR 737; Charlton v R (1972) VR 758.
It is clear that the accused did not want the journalists to be called under the s11 procedure (or, indeed, at trial). No reason for that was given by defence counsel. His Honour was well aware of the accused’s opposition to the application. In his ruling, he set out his understanding of all of the defence arguments and responded to each of them. But having concluded that it was likely that the Crown would call the journalists “cold” at trial, irrespective of the accused’s wishes, his Honour’s concern was to do what he could to ensure that the trial was fair. He was, quite rightly, concerned that the trial might be unfair if the accused was not given an opportunity to examine the journalists in the absence of the jury.
This ground of attack must also fail.
Failure to use alternative procedures
In paragraph 4(c) of the amended originating motion, the journalists plead that the judge failed to give adequate weight to a relevant consideration, namely that the DPP had not used the opportunity to examine the journalists at the committal or by way of the s56A procedure.
The committal
Although pleaded, no written or oral argument was advanced in relation to the DPP’s failure to call the journalists at the committal, and this point was effectively abandoned.
s56A procedure
Mr Kelly was charged on 23 August 2004. His committal mention date was on 30 November 2004. It is common ground that the DPP could have applied to the Magistrates’ Court for the examination of the journalists under s56A during that 3 month period, but did not do so.
The accused submitted to the judge that “if ever there was a procedure designed for this particular case it was [the s56A procedure].” It was argued that the DPP had “elected” not to use the coercive powers available under s56A and this was a factor which the judge should take into account in exercising his discretion. However, there was no suggestion that the Crown deliberately refrained from making an application under s56A for some strategic reason; indeed, the journalists said that they did not criticise the Crown for not availing itself of the s56A procedure.
His Honour had noted in the course of argument that s56A was a fairly controversial provision when first enacted, as it provided a procedure by which the police could seek to compel otherwise reluctant persons to assist with their investigations. In his ruling, he noted that s56A provides for “genuine investigatory powers” which appeared to have a more coercive nature, and were intended be used for other purposes, than s11. It is clear that his Honour was of the opinion that s11(1) was not intended to be the County Court equivalent of s56A, and that s11(1) should not be used as an investigative tool.
As already mentioned, his Honour found as a matter of fact that the purpose of the current s11(1) application was not investigative. That factual finding as to purpose is not challenged. In the circumstances, it is not relevant that the DPP might have invoked the procedure in s56A for investigative purposes in the few months prior to the committal mention date. No reviewable error has been established.
The interests of justice
Failure to state reasons
In paragraph 2 of the amended originating motion, the journalists plead that the Chief Judge failed to state any reasons for concluding that it was in the interests of justice that the order be made. Although this was pleaded as either a jurisdictional error or an error on the face of the record, it was really argued only as an error on the face of the record; indeed, it is difficult to see how this could constitute a jurisdictional error.
The journalists quite rightly point out that his Honour’s words “insofar as I have a discretion to make this order I am satisfied that it is in the interests of justice firstly that it be made, and secondly that it be made at this point in time” are “conclusionary”. However, the complaint they make is that “he doesn’t state any of the grounds upon which he concluded that it was in the interests of justice.”[27]
[27]T50.
The general principles in this area are not contentious. It is a normal, but not universal, incident of the judicial process that reasons should be given for individual decisions[28]. The purposes which underlie the judicial obligation to provide adequate reasons have been said to be:
“First, a Court of Appeal must be in a position to determine whether the decision of the trial judge contains appealable error … Secondly, an adequate statement of the reasons ‘provides the foundation for the acceptability of the decision by the parties and the public.’ As Lord McMillan once said the main object of a reasoned judgment ‘is not only to do but to seem to do justice.’ Conversely, a failure to provide sufficient reasons or the provision of reasons which are riddled with error is likely to leave the losing party with a sense of injustice … Thirdly, it furthers judicial accountability guarding ‘against the birth of an unconsidered or impulsive decision.’ Next, the provision of adequate reasons has an educative function in that it ‘enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.”[29]
[28]Public Service Board of NSW v Osmond (1985) 159 CLR 656;
[29]Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1 per Charles, Buchanan and Chernov JJA at 31; cited with approval in Halge v George [2004] WASCA 141 at [38].
Here, the judge gave oral reasons for decision, which ran to 7 pages of transcript. His ruling was given on an ex tempore basis, in a busy court[30], immediately after hearing submissions which were, at times, less than clear. He had engaged in detailed discussions with counsel during the course of their submissions, in which he had expressed a number of opinions. The trial date was only a few days away. His formal ruling should be read and understood in that context.
[30]It is apparent from the transcript that the argument was interrupted on several occasions by other matters in his Honour’s list.
No criticism is made of the adequacy of his summary of the relevant facts, legal principles and submissions. The only criticism of the adequacy (as opposed to the correctness) of his reasons relates to his concluding remarks. No doubt it would have been clearer if his Honour had inserted words to the effect of “for the reasons which I have just given” before the words “I am satisfied that it is in the interests of justice”. But it is clear on a sensible reading of his ruling that that is precisely what the learned judge meant. No relevant error has been demonstrated.
No proper grounds
In paragraph 1A of the amended originating motion, it is said that the learned judge failed to find any proper grounds, alternatively, there were no proper grounds, upon which he could be satisfied under s11(4) of the threshold question, namely that it was in the interests of justice that the journalists’ evidence be taken. As this ground was only added during the course of the hearing before me, it was not addressed in written submissions. The way it was argued in oral submissions was as follows:
“The learned trial judge committed a jurisdictional error in that he didn’t reach, or didn’t cross, the jurisdictional threshold which is required by sub-s (4), because he couldn’t have been satisfied that it was in the interests of justice that the order be made. That is the submission, the alternative jurisdictional error. …
He misconstrued it this way. He had to find, as a jurisdictional threshold, to a level of satisfaction that it was in the interests of justice. It seems that the only ground upon which he concluded that it was in the interests of justice was that it was in the interests of justice that the evidence of the two journalists be explored. We say that is insufficient, that didn’t cross the threshold.”[31]
[31]T51-2.
The concept of “exploring” the evidence was mentioned in the ruling in the following context:
“Before me it was contended on behalf of the prosecution that I should accede to this submission because it was in the interests of justice that the evidence of the two journalists be “explored”, to put a neutral term on it, prior to the commencement of the trial.”[32]
[32]Pages 64-65 of the transcript of 5 July 2005.
As already mentioned, his Honour was not using the word “explored” in the sense of being part of some investigation for prosecution purposes. It is clear from his ruling and his discussions with counsel that he was referring to a Basha-type inquiry. He accepted that the Crown intended to call the journalists at trial, as they could give relevant and admissible evidence. It was in the interests of justice for the evidence to be called in the absence of the jury so that the accused would know the case against him and would have an opportunity to cross-examine the journalists. There were sensible case management considerations which supported calling that evidence at a s11 hearing, rather than at the commencement of the trial.
I am satisfied that there were proper grounds upon which the learned judge could be satisfied under s11(4) of the threshold question, namely that it was in the interests of justice that the journalists’ evidence be taken.
Double jeopardy
In paragraph 4(a) of the amended originating motion, the journalists plead that the judge failed to give adequate weight to a relevant consideration, namely, that making an order under s11(1) might expose the journalists to “double jeopardy”, in that they would be required to reveal their sources at a pre-trial hearing as well as at trial.
The learned judge did not address the “double jeopardy” argument at all in his reasons. That is hardly surprising, given that no party suggested to the learned judge that he ought to have regard to any such consideration.
In fact, the use of the term “double jeopardy” is inappropriate here. Properly understood, “double jeopardy” means “no [person] should be tried twice for the same offence”[33]. Section 11 does not create any risk of double jeopardy in the sense in which it is usually understood in the criminal law.
[33]Davern v Messel (1984) 155 CLR 21 per Gibbs J at 30.
It is true that the journalists could be charged with contempt of court in respect of each occasion on which they refuse to answer a question which would require them to reveal their sources. Each such refusal would constitute a separate act of contempt.
The potential to commit more than one act of contempt exists irrespective of s11. Witnesses in the position of the journalists could be required to answer questions on any one or more of the following occasions: the committal, a s56A examination, a clause 24A hearing, a Basha inquiry, the trial, any re-trial, and on a voir dire within a trial or re-trial. They could commit an act of contempt on each occasion on which they refused to answer a question that they had been directed to answer. That is an obvious consequence of the fact that our criminal justice system provides for a number of different occasions on which a witness may be required to answer questions. The existence of the s11 procedure means that there is yet another stage at which witnesses might be required to answer questions, and might commit contempt if they refuse to do so.
Although the journalists’ code of ethics may preclude them from naming a source, that code has no legal status. The law does not currently recognise any “journalists’ privilege”[34]. If a journalist chooses not to reveal a source and thereby to commit an act of contempt, that is a matter of personal choice. But the possibility that a journalist might choose to disobey the law is not a relevant consideration for a judge considering whether to make an order under s11 in order to ensure that the accused receives a fair trial. I am not satisfied that any relevant error has been demonstrated.
[34]The Commonwealth Attorney-General has said that he intends to seek leave to appear at the hearing of any contempt charges, to bring to the judge’s attention the proposed changes to the uniform evidence law. But, even if such a provision is enacted in Victoria in its proposed form, the new “confidential relationship privilege” would only create a qualified privilege. In deciding whether to order journalists to reveal their sources, the courts would be required to balance the likely harm to the source if the evidence is adduced against the desirability of the evidence being given (for example, because of its probative value or importance).
Conclusion
For these reasons, I am not satisfied that the learned Chief Judge has committed any relevant error. Accordingly, I would dismiss the journalists’ amended originating motion dated 16 June 2006.
I will hear from the parties as to the precise form of orders and as to costs.
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