Herald and Weekly Times Ltd v Williams - [2005] VSC 316

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] VSC 316
Decision Date: 13 July 2005

CaseChat Overview and Summary

Herald and Weekly Times Ltd and others brought an application to set aside an order for non-publication of any matter or reference to George Williams, Carl Williams, and Roberta Williams in any media outlet or other publication. The application arose out of a suppression order made on 8 July 2005, prohibiting the publication of any information about the Williams family until further order. The order was communicated to media organisations on 11 July 2005, but material referring to the Williams family was published on 12 July 2005. The applicants argued that the suppression order should be set aside on the grounds that it violated the principle of open administration of justice, exceeded the inherent power of the court, and was too wide.

The court considered the inherent jurisdiction of the court to control the criminal process and protect the fundamental right of the citizen to a fair trial. The court noted that the inherent jurisdiction of the court had been recognised by the High Court and referred to in many other cases. The court also considered the legislative scheme prescribed by the Evidence Act, which recognised 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. The court concluded that an order prohibiting publication of matters pertaining to a trial should only be made if it is necessary in all the circumstances to do so. The court resolved 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. The court held that the references in the newspaper and the television reports were pejorative and entirely unnecessary, and that gratuitous comment along these lines must be prevented to enable the fair trial of the accused in the near future.

The court set aside the order made on 8 July 2005 and reimposed the order in the following terms. 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. The court granted liberty to apply.

Orders