Herald and Weekly Times Ltd v Williams
[2005] VSC 316
•13 July 2005
| IN THE SUPREME COURT OF VICTORIA | Unrestricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1478 of 2004
| IN THE MATTER of an Application to set aside an order for non-publication |
| - and - |
| IN THE MATTER OF THE QUEEN V CARL WILLIAMS AND OTHERS |
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JUDGE: | King J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 July 2005 | |
DATE OF RULING: | 13 July 2005 | |
CASE MAY BE CITED AS: | Herald and Weekly Times and Ors v Williams and Ors | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 316 | |
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APPEARANCES: | Counsel | Solicitors |
| For Carl Anthony Williams | Mr. D. Grace Q.C. | Garde - Wilson & Caine |
| For the Director of Public Prosecutions | Mr. G. Horgan S.C. | Office of Public Prosecutions |
| For The Herald and Weekly Times Ltd and other media organisations | Mr. J. Burnside Q.C. with Mr. D. Gilbertson | Corrs Chambers Westgarth |
HER HONOUR:
On 8 July 2005 I made an order prohibiting publication of any matter or reference to George Williams, Carl Williams and Roberta Williams in any media outlet, or in any newspaper or on television, radio, internet or any other publication until further order.
That Order was unfortunately, due to an administrative oversight, not communicated to any media organisations until Monday 11 July 2005 at which stage copies of the Order were sent to a list of media organisations held by the media officer of the Court.
On 11 July 2005, material was put before the Coroner’s Court, which referred to an alleged conversation between Steven Veniamin and a person by the name of Greg Domaszewicz, a person who had been charged with, and acquitted of, the murder of a child Jaidyn Leskie, the subject of the coronial enquiry. Steven Veniamin is the brother of a person named Andrew “Benji” Veniamin, who was an alleged associate and friend of both Carl and Roberta Williams. This conversation was apparently played to the Court and this was reported in various television news report and in the two leading Melbourne newspapers. I have not seen the television reports but I have had access to the newspapers being The Age and The Herald Sun.
The report in The Age 12 July 2005, in relation to the relevant parts, reads as follows:-
On page 1 of that newspaper:
“…During their conversation, Mr. Veniamin told Mr. Domaszewicz that the wife of a Melbourne underworld figure believed he had killed the toddler.”
And at Page 2:
“…Yesterday, Michael Rafter for Mr. Domaszewicz, told reporters that his client had become friends with members of the Veniamin family and was then introduced to the Melbourne underworld figure and his wife.”
The report in The Herald Sun on 12 July 2005, in relation to the relevant parts, reads as follows:
“…Carlton identity Mick Gatto was recently cleared of murdering Veniamin, who was a suspect in several of Melbourne’s underworld murders.
It was an accusation by a female underworld figure that Mr. Domaszewicz ‘did it’ that prompted him to ring Steven Venaimin in April last year.
Mr. Veniamin said: ‘but when you see (name deleted for legal reasons) apparently that’s what she said, she reckons you did it’.”
The broadcasts on the television news services have not been viewed by the Court at this stage, but counsel for Mr. Williams, outlined that on at least one channel the vision that was played, whilst comments and reports along a similar vein to those of the newspaper, depicted Mr. Carl Williams leaving the Melbourne Magistrates’ Court, thus identifying him, at the very least visually, with the report on the matter and the comments of his wife as reported by Mr. Venaimin.
In this matter the Court is clearly seized of the Carl Williams murder trials, which number three in total involving four alleged murders. Presentments have been filed and rulings made in respect of those matters. The Court has not finally determined, precisely when the trials will commence, but the earliest commencement of the first of those trials will be in August of this year and the latest commencement date for the first of those trials will be in September of this year. That means the trials will commence within the range of four weeks to nine weeks from this time. The Court is also seized of the Carl Williams, George Williams trafficking trial which has been committed to this Court. Roberta Williams is not a defendant in any matters currently before this Court, but is potentially a witness for the defence at some point.
The publicity in respect of these so called “gangland killings” has been extraordinary, and has been occurring for a lengthy period of time, a matter of some years, and at the very least since the high profile killing of Jason Moran and Pasquale Barbaro, in 2003.
Counsel for the applicants submitted that the Order made by the Court should be set aside on a number of bases. First, on the principle of open administration of justice, in which the test of necessity is highly relevant. Secondly, counsel submitted that neither the inherent power of the Court nor the statutory power granted pursuant to sections 18 and 19 of the Supreme Court Act goes so far as to justify orders restraining publication of matters generally, as distinct from restraining publication of reports of proceedings of this Court. On this point it was further submitted that the Court has power to punish for contempt and that is the appropriate mechanism by which it can and should deal with publications which otherwise interfere with the administration of justice. Finally the submission was that the order made was too wide.
I shall deal first with the issue of the power of the Court to make such an Order.
Brooking J in Re an Application by a Former Officer of the Australian Security Intelligence Organisation[1] said:
“Quite apart from any statutory power to prohibit publication of a report of proceedings or to exclude persons from the court during the proceedings (see for example, Supreme Court Act 1958 (Vic) s 29) (which was of course the forerunner to ss. 18 and 19 – of the current Act)
“It is clear that there is inherent power to impinge by order in a given case upon the general principle that the courts shall conduct their proceedings in public. The impingement may be great or small, as circumstances warrant. At times the encroachment is so slight as to pass without notice: a witness is permitted to write down his address, which is then recorded in the transcript or sometimes only in the judge’s notes, in the latter case the address being communicated privately to the judge alone. On occasions a witness is permitted to go further and to write down not merely his address but also his name, so that he will give evidence as ‘Mr. X’ or ‘Col B’;
And his Honour there refers to a list of authorities[2]. Continued:
“In exceptional circumstances, the whole or part of the hearing may take place in private. Courts have been induced to hear adversarial proceedings in private where confidential information has been disclosed by the plaintiff to the defendant (Mellor v Thompson (1885) 31 Ch D 55; where a secret chemical process is set up (Badische Anilin und Soda Fabrik v Levinstein (1883) 24 Ch D 156); where loss of public confidence, though unjustified would cause a run on the bank (R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227) or where the court is asked to stop publication of material that would prejudice a fair trial; Skope Enterprises Ltd v Consumer Council [1973] 2 NZLR 399.”
[1][1987] VR 875 at 876-7.
[2]R v Socialist Worker Printers and Publishers Ltd; Ex parte Attorney-General [1975] QB 637; Taylor v Attorney-General [1975] 2 NZLR 675; Attorney-General v Leveller Magazine Ltd [1979] AC 440; compare the discussion of Shaw v Director of Public Prosecutions [1962] AC 220 in JF Archbold, Archbold Pleading, Evidence and Practice in Criminal Cases (42nd edition, 1985) para 4-291.
In that case, being Skope Enterprises Ltd v Consumer Council[3] a matter in which an injunction was sought to restrain the publication of certain material claimed to be prejudicial to the fair trial of another action in which the applicant was a defendant, Cooke J stated:
“Normally proceedings in this court are open and it is recognised to be a principle of first importance that justice should be in public. But there are exceptional cases, very few in number, where the desirability of having the hearing in public must be subordinated to the overriding requirements of justice. The matter was put in this way by Viscount Haldane LC in Scott v Scott [1913] AC 417.
While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that chief object of Courts of justice must be to secure that justice be done.” (ibid) 437.
The Lord Chancellor mentioned as one of the apparent exceptions cases where the effect of publicity would be to destroy the subject matter. As to these he said:
‘There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular cases to make out that ordinary rule must as of necessity be superseded by this paramount consideration’.”
[3][1973] 2 NZLR 399.
At a later point Cooke J referred to the issue of publicity and fairness, stating at page 400 line 30[4]:
“The position might be otherwise if that action were to be tried by Judge alone, but the Court is always concerned to ensure as far as it can, where an action is to be tried with a jury, or may be tried with a jury, that nothing will be published which may unfairly influence the jury in their consideration of the case – which should of course be based solely on the evidence given at the trial before the jury.”
[4]ibid.
The issue of pre-trial publicity was recently examined by the Full Court of the Supreme Court of South Australia in the case of Channel Seven Adelaide Pty Ltd v Draper[5]. This concerned an application before the Acting Chief Judge of the District Court for a suppression order relating to an application for the taking of a forensic sample, which was to be heard in the Magistrates’ Court. A person involved in the suppression order was a suspect in a murder but had not as yet been charged with any criminal offence. There had been considerable publicity of some of the matters prior to the application being granted by the Chief Judge. The suppression order also related to a person who was not being charged and sought relief by way of preventing a program being aired on Channel 7 relating to the actual offences in which this person was named as her partner. Justices Gray and Nyland of that court, with Besanko J dissenting said[6]:
“Inherent Jurisdiction
It is well established that the courts have an inherent jurisdiction to control the criminal process and protect the fundamental right of the citizen to a fair trial. This inherent jurisdiction has been recognised by the High Court in Barton v The Queen[7], Jago v The District Court of New South Wales[8] and Deitrich v The Queen[9] and referred to in many other cases. In Jago Deane J described the right to a fair trial as follows[10]:
‘The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law.
As a matter of ordinary language, it is customary to refer in compendious terms to an accused’s ‘right to a fair trial’. I shall, on occasion, do so in this judgment. Strictly speaking, however, there is no such directly enforceable ‘right’ since no person has the right to insist upon being prosecuted or tried by the State. What is involved is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.
The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience.”
[5][2004] 90 SASR 160.
[6]ibid 170-1.
[7](1980) 147 CLR 75.
[8](1989) 168 CLR 292.
[9](1992) 177 CLR 292.
[10]Jago v District Court (NSW) (1989) 168 CLR 23 at 56-57.
The issue of inherent jurisdiction and publicity was equally dealt with by Nyland J with Gray J concurring, wherein he stated[11]:
[11]ibid 173.
“In the present case it was open to the Acting Chief Judge to conclude that the proposed disclosure gave rise to a risk of suggestibility concerning identification and possible prejudice to a fair trial. The Acting Chief Judge had inherent jurisdiction to make a suppression order. Such an order was justified, to ensure, as far as possible, that if A was charged with an offence he would receive a fair trial.
The Evidence Act
In addition to his inherent jurisdiction, the Acting Chief Judge also had jurisdiction to make the suppression order pursuant to the legislative scheme prescribed by the Evidence Act.
There is a public interest in the maintaining of public confidence in the administration of justice. This public interest is maintained by the administration of justice in open court and the publication of what occurs to the community. In this way the public is aware of the process by which and the manner in which the courts administer justice. Open courts allow public scrutiny. It is this public scrutiny which guards against arbitrary, idiosyncratic or unjust conduct on the part of the courts.
However it has been recognised both at common law and by statute that there are circumstances where it is appropriate for proceedings to be heard in private and for there to be a suppression of information from the public. These circumstances arise when publicity would cause a possible injustice and hence bring the administration of justice into disrepute. However, the ordinary rule is that proceedings should be heard in public unless to do so would prejudice or put at risk justice in the particular case.”
It is clear from the authorities referred to that the Supreme Court has inherent jurisdiction derived from its position as the superior court of Victoria of unlimited jurisdiction and has a responsibility to ensure that the administration of justice is dealt with in a manner that ensures “the right of an accused person to receive a fair trial according to law which is a fundamental element of our criminal justice system”[12].
[12]Dietrich v The Queen (1992) 177 CLR 292 at 299-300.
It is apparent that an order prohibiting publication of matters pertaining to a trial should be only made if it is “necessary” in all the circumstances to do so. Accordingly I have to resolve the conflict between two fundamental principles, the maintenance of transparency of court proceedings and journalistic comment and the prejudice that may be caused to the fair trial of the accused men.
I have been referred to a number of authorities which have been helpful on the point, particularly those relating to directions to juries and the expectation that juries will heed and obey the lawful directions of the trial Judge when assessing evidence and considering their verdict.[13]
[13]Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15; Murphy v R 167 CLR 94; R v Glennon [2001] VSCA 17; John Fairfax & Sons v Police Tribunal of NSW (1986) 5 NSWLR 465; An Application by the Chief Commissioner of Police (Vic) for leave to appeal [2004] VSC 83; IMO an Application by “The Age” & Ors; Re: Carl Anthony Williams [2004] VSC 413.
Equally I have been provided with a ruling by Kellam J In the matter of an Application by “The Age” & Ors Re: Carl Anthony Williams dated 22 October 2004[14] in which he stated at paras 32 and following:
“32.I have given careful consideration to the particular prejudice upon which Mr Grant relies in relation to the connection between the conviction and sentencing of the accused upon drug trafficking charges which arise from events which occurred in early 2001 and the allegation of murder now made against the accused. However, in all the circumstances of the publicity already generated in this matter I do not conclude that the publication of the plea and sentence in relation to such drug trafficking matters justifies the extraordinary course of suppressing the publication of such matters, for the period of time until the likely trial of the accused, which on any view will not take place before June of next year and in all probability will take place considerably later. I do not conclude that there is a high level of risk of prejudice to the trial, or that there is a real risk that serious prejudice will occur to the accused. I do not conclude that there is a real risk that a properly instructed jury will be prejudiced by such publicity to the exclusion of the evidence and directions of the trial judge. ...
33.However, notwithstanding the conclusion that I express above it is, in my view, appropriate to note that there are a number of high profile cases coming before this Court in coming months. The material tendered before me demonstrates that some parts of the media are capable of being manipulated by a variety of persons with an interest in achieving publicity.”
[14]IMO an Application by “The Age” & Ors Re: Carl Anthony Williams [2004} VSC 413.
As Cummins J said in DPP v Williams & Ors[15]:
“It is essential that the media exercise care and good judgment in publishing material which relates to any accused person … The Court will not stand in the way of proper public debate about matters of high importance. However the Court will not permit a campaign of vilification in the media about individual persons who are the subject of trial proceedings. And, as I am sure all persons know, the Court has far reaching powers in relation to contempt, as well as powers in relation to prospective prohibition.”
His Honour Kellam J then continued:
“The closer a matter is to trial the greater the risk that the administration of justice will be affected by prejudicial pre-trial publicity and the media should take that matter into account in considering the far reaching powers of the Court in relation to contempt.”
[15][2004] VSC 209 at para [25].
It is now my view that the time in respect of the use of those far reaching powers has arrived. The references in the newspaper and the television reports were pejorative and entirely unnecessary. There was no reference, in an attempt at less sensationalised reporting, to Roberta Williams being the wife of “an alleged underworld figure”. There was absolutely no necessity to show footage of Carl Williams on the television news, as the statements alleged to have been made by his wife were not attributable to him in any manner. Despite having no connection whatsoever to the events that were being presented in the Coroner’s Court, Carl Williams and Roberta Williams, as a result of hearsay material, featured prominently in both television and newspaper coverage, in a way that portrayed them, without benefit of trial, as being major players in the Melbourne criminal underworld. These are matters that will undoubtedly be raised for consideration by the jury in the trials to commence shortly. Gratuitous comment along these lines must be prevented to enable the fair trial of the accused in the near future.
Whilst I accept that the jury will abide by the directions given by the trial Judge, it is important for a Court to do all that it can to assist the jury in making that task easier. The greater the distance between the hearing or reading of material prejudicial to the accused in media outlets, the better the jury’s ability to totally obey the Court’s directions in respect of pre-trial publicity and evidence. If the pre-trial publicity is quite recent and fresh in their memory it becomes much harder for them to remove what may be subconsciously in their minds.
In relation to the issue of the width of the order initially made by this Court I agree with the submissions put forward by counsel for the applicants and intend to recast the order that I made.
The object of this order is to ensure that material adverse to Carl Williams directly, and through implication relating to his wife and father, indirectly, is not, at this time, published and that is to ensure that Carl Williams receives as fair a trial as possible. Thus the order of the Court that I propose to make is:
1.I set aside the order made on 8 July and signed on 11 July 2005 and reimpose the order in the following terms.
2.The publication of any reference to the antecedents, current charges, pending charges, or any reference which reflects adversely upon the character or credit of Carl Williams, George Williams or Roberta Williams in any media outlet, newspaper, radio or television station is prohibited until further order.
3. Liberty to apply.
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