Herald & Weekly Times Pty Ltd v A
[2005] VSCA 189
•1 August 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 1478 of 2004
| THE HERALD AND WEEKLY TIMES PTY LTD, THE AGE COMPANY LTD and ORS | |
| Applicants | |
| v. | |
| [A] and ORS | Respondents |
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JUDGES: | MAXWELL, P., NETTLE, J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 July 2005 | |
DATE OF JUDGMENT: | 1 August 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 189 | |
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APPEAL – Criminal procedure – Jurisdiction – Jurisdiction of Court of Appeal – Jurisdiction to entertain appeal from suppression order made by trial judge – Criminal law – Suppression order banning publication of details of accused awaiting trial – Power of court to make suppression order consistently with open justice and free speech – Supreme Court Act 1986, ss.17(2) and 17A(3).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr J.W.K. Burnside, Q.C. | Corrs Chambers Westgarth and Minter Ellison |
| For the First Respondent | Mr David Grace Q.C. with Mr M.J. Croucher | [...] |
For the Second Respondent | No appearance | |
For the Third Respondent | Mr G.M. Horgan S.C. | The Office of Public Prosecutions |
NOTE: The symbol [...] means that part of the text has been deleted for publication.
MAXWELL, P.
NETTLE, J.A.:
This is an application for leave to appeal from an order of a judge of the Criminal Division made on 13 July 2005 in terms that:
“The publication of any reference to the antecedents, current charges or pending charges, or any reference which reflects adversely upon the character or credit of [A, B or C] in any media outlet, newspaper, radio or television station is prohibited until further notice.”
The first respondent, [A], has been presented for [trial]. [...] [A] and [B] have also been presented for trial [...] and [C] is a potential alibi witness. [...]
[...] On […] this year, during the course of a pre-trial directions hearing, senior counsel for [A] applied for what he then described as a “general suppression order…from today up to the date of trial involving [A, B or C], with liberty of course to the press to apply in case they want to publish any particular item”.
[...] That application was supported by senior counsel for the Crown. The judge thereupon made an order in terms that:
“Pursuant to Section 18 of the Supreme Court Act 1986: The publication of any matter or reference to [A, B and C] be prohibited in any media outlet, or in any newspaper or television radio or on the internet or any other publication until further order.”
On 12 July 2005 senior counsel for the applicants appeared before the judge to move that the order be set aside. He submitted that her Honour did not have power, under s.18 of the Supreme Court Act or otherwise, to make an order in the broad terms in which it had been made. He submitted that, in any event, such an order was not warranted and the order made should be vacated. Senior counsel for [A] submitted that the judge had ample power, in the inherent jurisdiction of the court, to make the order, and that the order or something very like it was needed to ensure that [A] and [B] each received a fair trial.
Senior counsel for the Crown again supported the submission on behalf of [A] that a suppression order was needed. He submitted that if there continued to be references in the media to [...], it would be almost impossible for [A] to receive a fair trial [...]. He said that the Crown would support any resolution of the matter that permitted the press to refer to “the dramatis personae” without gratuitous pejorative descriptions.
The judge reserved her decision. In a ruling published on 13 July 2005, her Honour concluded that she had power in the inherent jurisdiction of the court to make orders necessary to ensure that an accused person received a fair trial. She also accepted that the order made on 8 July 2005 was cast in terms that were too wide. But she considered that it was necessary, in order to ensure the fair trial of [A] and [B], that a varied order be made in the terms to which we have referred.
Jurisdiction to hear the application.
The jurisdiction of this court to entertain an appeal from the order made on 13 July 2005 is less than clear. It is submitted for the applicants that the court has jurisdiction under s. 17(2) of the Supreme Court Act 1986, which provides that:
“17. Business to be disposed of by Trial Division constituted by a Judge
(1) The Trial Division constituted by a judge may hear and determine all matters, whether civil or criminal, not required by or under this or any other Act or the Rules to be heard and determined by the Court of Appeal.
(2) Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a judge.”
Counsel for [A], however, point to s.17A(3) of the Act, which provides:
(3) Except as provided in Part VI of the Crimes Act 1958, an appeal does not lie from a determination of the Trial Division constituted by a Judge made on or in relation to the trial or proposed trial of a person on indictment or presentment.”
They contend that the order made on 13 July 2005 was a determination of a judge of the Trial Division “made on or in relation to the trial or proposed trial” of [A] and [C], and that no appeal lies.
The meaning of s. 17A(3) was most recently considered by this court in Re Applications by Chief Commissioner of Police (Vic) for leave to appeal.[1] As is there explained, s.17 was intended to confer appellate rights against decisions of single judges in criminal matters where none had existed before.[2] What is now s.17(2) was thus construed in R v Kean and Mills [3] as conferring appellate rights in circumstances not covered by Part VI of the Crimes Act 1958. What is now s.17A(3) was thereafter enacted with the intention of formalising the effect of that construction. At least that is what the Appeal Division determined in Boehm v Director of Public Prosecutions[4] to be the effect of the legislation. In a joint judgment, the court held that the reference in what was then s.14(3) (now s. 17A(3)) to “a determination made on or in relation to a trial or proposed trial” referred only to a determination of that description from which an appeal lay under Part VI of the Crimes Act 1958 and hence, if a determination could not be appealed under that part, the section did not operate to exclude any right appeal conferred by s.10(2) (now s.17(2)).
[1](2004) 9 V.R. 275; see also Fernandez v Director of Public Prosecutions (2002) 5 V.R. 374 at 379 ff.
[2]At 280 [16].
[3][1985] V.R. 255.
[4][1990] V.R. 494.
In Smith v The Queen,[5] however, the High Court held that the Appeal Division had been in error in reading the words “in relation to” in that fashion. As the High Court construed the section, the restriction in what is now s.17A(3) was not confined to determinations from which an appeal lay under Part VI of the Crimes Act, but had to be given what the court described as its “ordinary meaning”. So it was held that there was no right of appeal under what is now s.17(2) against an order permanently staying a prosecution, notwithstanding that there was also no right of appeal under Part VI of the Crimes Act.
[5](1994) 181 C.L.R. 338.
Consistently with that determination, it has since been held by this court in Victoria Legal Aid v Lewis[6] that there is no right of appeal from an order made by a judge under s.360A of the Crimes Act to compel Victoria Legal Aid to provide legal assistance to an accused person.
[6][1998] 4 V.R. 517.
In Re Applications by Chief Commissioner of Police (Vic) for leave to appeal,[7] this court was concerned with suppression orders made by a trial judge in respect of the names and identities of undercover policemen engaged in undercover investigative and interrogative techniques, and the details of those techniques. As it turned out, it was unnecessary to decide whether there was a right of appeal against the orders under s.17(2) of the Supreme Court Act. But the court did express the view that :
“...if the determination which was being considered in the case of Lewis was a determination made “on or in relation to the trial or proposed trial of a person on indictment or presentment”, then the determinations made in this case (namely the limited suppression orders made by the two trial judges) must each equally be “a determination made on or in relation to a proposed trial on indictment or presentment”, especially if one applies the broad interpretation given to those words in Smith, as this court was obliged to accept in Lewis. This is particularly so having regard to the fact that the application was made under s 18 of the Supreme Court Act which gives the court the power to make a suppression order only in relation to a “proceeding” or in respect of information derived from a proceeding. The order made is thus one which prohibits or limits the publication of the identities of certain witnesses in those proceedings and of the critical evidence to be given by those witnesses in the course of those proceedings.”[8].
[7](2004) 9 V.R. 275.
[8](2004) 9 V.R. at 282 [19]; application for special leave to appeal to the High Court refused: (2005) A.L.J.R. 881.
However that may be, we have come to the conclusion that the court does have jurisdiction to entertain the present application. Granted that we are constrained by the decision in Smith to give to s.17A(3) its ordinary meaning, it does not seem to us that an order directed to the world at large in the terms of the subject order is one which, according to the ordinary meaning of language, is a determination “made on or in relation to a trial or proposed trial”.
It is not an order of the kind which is deemed by s.7 of the Crimes (Criminal Trials) Act 1993 to be part of the trial. Nor is it closely related to the trial in the sense in which an order to provide legal assistance for a trial or an order staying a trial is related to it. Nor is the subject-matter of the determination an integral part of the trial process, nor does it arise in the issue between the Crown and the accused formulated by the presentment. Judged, therefore, by reference to these three “helpful pointers”, recognized in England as providing guidance as to whether a decision is a matter “relating to trial on indictment” within the meaning of s. 29(3) of the Supreme Court Act 1981 (UK), it is difficult to see why this order should be judged a determination “in relation to a trial”[9].
[9]See Victoria Legal Aid v Lewis [1998] 4 VR 517 at 521, citing Re Smalley [1985] AC 622 at 643-4; Re Sampson [1987] 1 WLR 194 at 196; Re Ashton [1994] 1 AC 9 at 20; and R v Manchester Crown Court; ex parte Director of Public Prosecutions [1993] 1 WLR 1524 at 1530.
As Gummow and Toohey, J.J. said in PMT Partners Pty Ltd v Australian National Parks and Wildlife Service,[10] the words “in relation to” –
“are prima facie broad and designed to catch things which have sufficient nexus to the subject. The question of sufficiency of nexus is, of course, dependent on the statutory context.”[11]
[10](1995) 184 CLR 301 at 330.
[11]See also O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 367 per Dawson J; Western Australia v Ward (2002) 213 CLR 1 at 246 [577] per Kirby J.
Interpreting a statutory phrase by reference to its context is necessary so that effect can be given to the legislative purpose.[12] And it is the legislative purpose of s.17A(3) which is significant here. Its purpose, as the High Court recognised in Smith,[13] was to avoid the fragmentation of criminal trials by appeals brought from rulings before or during the course of a trial.
[12]cf. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69].
[13](1994) 181 CLR 338 at 346.
This suggests that the phrase “in relation to” was intended to denote a quite direct nexus with the trial. Nothing said by the High Court in Smith requires any other conclusion. We think, moreover, that a privative clause like s.17A(3) should be strictly construed and that where – as here – there is a choice between a broader and narrower interpretation, the narrower should be preferred. This is especially so where – as here – the application of the privative clause would render the determination in question wholly immune from appeal. It is not lightly to be assumed that Parliament would have intended that result.
Accordingly, we conclude that s.17A(3) does not preclude an appeal from a suppression order of the kind in issue here. No question of fragmentation of the proposed trial arises. Framed as it is, the order lacks the direct nexus with the proposed trial which the phrase “in relation to” requires.
So to say is not to suggest that every form of suppression order may be appealed under s.17(2). Nor is it necessarily to imply that an order like the subject order but expressed in terms tying it more closely to a particular trial or proposed trial, may not come within s.17A(3). It may also be that the time at which such an order is made is relevant to the assessment of whether it is a determination within the meaning of the latter provision. For the present we confine ourselves to the conclusion that the order the subject of the application is not a determination “on or in relation to the trial or proposed trial of a person on indictment or presentment” within the meaning of s. 17A(3).
The evidence
At the commencement of the hearing, we were asked to decide whether [A] could rely on certain published material exhibited to two affidavits. [...]
[...].
We ruled that the only material which could be relied on in the present application was that which had been before her Honour at the time she made the order. There was, in our view, nothing which would justify our receiving material which, though published earlier, had not been placed before her Honour. Less still was there any justification for receiving material published after the order had been made.
[...].
Power to make the order
The order the subject of this application was purportedly made in exercise of the inherent jurisdiction of the court to make orders to protect its own process and in particular to secure the proper administration of justice. It is not suggested that the order is one which is capable of being supported as an exercise of the powers conferred by ss.18 and 19 of the Supreme Court Act.
The judge held, correctly, that the court has inherent jurisdiction to make orders necessary for the fair trial of an accused including, as the occasion requires, orders for the suppression of publication of a part or parts of a proceeding and of evidence given in a proceeding and of the identification of a party to the proceeding and a witness in it. It is plain enough too that, in some circumstances, it may be necessary to go further than that and hence to make a suppression order of even wider proportions. As Mahoney, J.A. said in John Fairfax & Sons v Police Tribunal,[14] a superior court has the power and the duty to secure that justice is done according to the law in respect of those seeking the exercise of its jurisdiction and, insofar as it may be necessary for that purpose, it may make orders for the protection of those relevantly involved in the proceedings before it.
[14](1986) 5 N.S.W.L.R. 465 at 471.
Counsel for the applicants submitted that the power to make such an order is limited to orders which bind parties and persons in court and hence that the subject order is beyond power as purporting to bind the world at large. He relied on the statement of McHugh, J.A. in John Fairfax & Sons Ltd v Police Tribunal of New South Wales[15] that:
“Courts have no general authority, however, to make orders binding people in their conduct outside the courtroom. Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the courts. An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative – not judicial-power.”
Counsel also referred to Spigelman, C.J.’s approval of that statement in John Fairfax Publications Pty Ltd v District Court (NSW).[16]
[15](1986) 5 N.S.W.L.R 465 at 477.
[16](2004) 50 ACSR 380 at 398[89].
In our opinion the point is of little consequence. For present purposes it may be allowed that the court does not have power by a suppression order made in exercise of the inherent jurisdiction to bind the world at large. Ordinarily such orders bind in personam only the parties and other persons to whom they are directed. But it does not follow that a suppression order is invalid or inutile simply because it is not in terms directed to anyone in particular. Suppression orders of that kind are made every day of the week and they do bind parties and those who are in court and in effect those who receive notice of the orders. As McHugh, J.A. explained in John Fairfax & Sons v Police Tribunal[17]:
“Nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court. …the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice….”
[17](1986) 5 N.S.W.L.R. 465 at 477.
Spigelman, C.J. put the matter even more precisely in John Fairfax Publications Pty Ltd v District Court (NSW),[18] when his Honour said:
“In New South Wales a non-publication order made in the Supreme Court… is communicated to the major media by the court. The order may only formally bind persons who are present in court. However, the media are on notice that the communication of the prohibited matter to the media for publication must come, directly or indirectly, from a person who has breached the order. Knowledge of the order will be a material factor in any subsequent contempt proceedings against the media on the basis that the conduct intentionally frustrated a court order.”
[18](2004) 50 ACSR 380 at 397[83].
The same is equally true of a suppression order made by the Supreme Court of Victoria in exercise of its inherent jurisdiction.
The scope of the order
Counsel for the applicants further submitted that, even if there were power to make a general non-publication order, the order in this case was so broad as to be beyond the inherent power of the court. In their submission, the scope of that power is defined by a criterion of necessity. That is, the Court is confined to doing that which is (demonstrably) necessary to secure the due administration of justice in the proceedings, and the present order goes beyond any reasonable view of what was necessary. There is force in that submission.
The court’s power to suppress publication is not narrowly circumscribed. [19] As Brooking, J.A. put it in a passage in Re Application by a former officer of the Australian Security Intelligence Organisation[20], which is cited in the judge’s ruling:
“ …[I]t 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 the circumstances warrant…”
[19]John Fairfax v Police Tribunal (1986) 5 N.S.W.L.R. at 472 per Mahoney, J.A.
[20][1987] V.R. 875 at 876.
The question, therefore, is what the circumstances warrant. Since the foundation of the inherent power is the need to ensure that justice is done in the proceedings, it follows that the exercise of the power can range no wider than is necessary to secure that object.
A suppression order directed at preventing prejudicial media comment is akin to an anticipatory exercise of the Court’s power to deal with contempt of court. The same objective informs the Court’s power to grant a quia timet injunction to restrain a threatened contempt.[21] That power is, however, to be exercised sparingly, as Lord Donaldson M.R. pointed out in P v Liverpool Post and Echo Newspapers PLC:[22]
“There is no doubt that, in general terms, there is jurisdiction to grant an injunction prohibiting specific conduct which would constitute a breach of the common law rules relating to contempt of court... However... where the contempt would consist of impeding or prejudicing the course of justice, it will rarely be appropriate for two reasons. The first is that the injunction would have to be very specific and might indirectly mislead by suggesting that conduct of similar, but slightly different, nature would be permissible.
The second is that it is the wise and settled practice of the courts not to grant injunctions restraining the commission of a criminal act – and contempt of court is a criminal or quasi criminal act – unless the penalties available under the law have proved inadequate to deter commission of offences.”
[21]State of Victoria & Commonwealth of Australia v Australian Building Construction Employees & Builders Labourers Federation (BLF case) (1982) 152 CLR 25 at 42; Critchley v Australian Urban Investment Ltd [1979] VR 374 at 377; Times Newspapers Ltd [1974] AC 273; P v Liverpool Post and Echo Newspapers PLC [1991] 2 AC 370.
[22][1991] 2 AC 370 at 381-2.
Moreover, any exercise of the power to suppress publication must, as her Honour recognised,[23] involve an exercise in balancing the interests of society in ensuring that the accused receives a fair trial against the competing interests of society in the freedom of expression. The balance to be struck was explained in the judgment of Jordan, C.J. in Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd[24] as follows:
“It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.
It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as plaintiff or as defendant, and whether in relation to the matter which is under discussion or with respect to some other matter...”[25]
[23]Ruling 13 July 2005 para [17].
[24](1937) 37 S.R.(NSW) 242 at 249-50.
[25]Cited by Mason, C.J. in Hinch v Attorney-General (Vic) [1987] 165 CLR 15 at 19; see also R v Glennon (1992) 173 CLR 592 at 612 per Brennan J.
Counsel for [A] argued that the power to make a suppression order was not limited to the prevention of a possible contempt but extended further, to the prevention of publications which would prejudice the fair trial of the accused, even if not a contempt. In his submission the facts of this case demonstrate the point. There have (he argued) been numerous publications concerning [...], none of which may have amounted to a contempt in itself, and there are likely to be further publications none of which in itself may amount to a contempt. But counsel contended that, when the “insidious” effect of the publications to date is combined with the effect of what is almost certainly about to come, the likely effect upon the minds of potential jurors is one of irreparable prejudice. And it is no answer, he submitted, that one may rely upon jurors to do their duty to decide the case on the basis only of the evidence presented. Jurors are only human and, when subjected to material of this kind, it is impossible (he argued) to eradicate the subconscious effects of it upon them.
On analysis, this closely resembles an argument that the court should act to restrain a threatened contempt of court. That is, the argument for [A] is that the court should be satisfied that the publication of the anticipated material would, having regard to the material already published, so much prejudice the possibility of a fair trial as to outweigh the interests of society in the free publication of the anticipated material. The Judge was rightly concerned to ensure the fair trial of [A]. Likewise, the position adopted by the Crown, both before her Honour and before us, was properly directed at protecting that vital interest.
In our opinion, however, it was not open to the judge on the material before her to conclude that an order in the wide terms used was necessary, in the relevant sense. The subject order is not limited to prohibiting the publication of any part (or even the whole) of the proceedings, or of evidence in the proceedings, or the identification of any party to or witness in the proceedings. Nor is it limited to matters concerning [A] which relate to an issue in the forthcoming trial. Instead, it prohibits publication of anything which reflects adversely upon the character or credit of [A], or [B], or [C].
The only current material before her Honour comprised the two press reports of […] which are referred to in the ruling. Neither report mentioned [A] or [B] by name. The references to which exception was taken were in the following terms:
[…]
Complaint was made on behalf of [A] about “various television news reports” [...].
At the request of [A’s] counsel, we viewed footage of the broadcast to which these remarks referred. [...] Taken by itself, the TV news report was innocuous as far as [A] and [B] are concerned. [...].
As we have said, the reach of the order travels beyond what could reasonably be regarded as necessary to ensure the fairness of [A’s] trial. The terms of the order, moreover, are too imprecise, with intending publishers left in a state of uncertainty about what might or might not constitute an “adverse reflection on character”, and about exactly what is meant by “antecedents”.
We are, however, persuaded that her Honour was entitled to conclude that it was necessary to make a limited order in respect of [A]. It may also be - although we are unable to decide on the basis of our limited knowledge of the proceedings - that her Honour was entitled to conclude that it was necessary to make a limited order in respect of [B] and [C]. We add, too, that the position is fluid, as each day the proceedings draw closer to trial. It is within the judge’s power to reconsider the matter as often as is thought necessary and to make further orders as necessary in accordance with developments.
In the result, we would allow the application for leave to appeal, treat the appeal as having been heard instanter and allow the appeal. We propose to vary the order the subject of appeal so as to limit the prohibition on publication to a prohibition, until the completion of [A’s] first trial or further order, of -
(a)any detail of or concerning his prior convictions;
(b)the fact that he has been presented for trial [...]; and
(c)any statement in substance or to the effect that he is [...].
We accept that references, and especially repeated references, to these matters in the weeks leading up to the proposed trial are likely to be highly prejudicial to [A]. A prohibition in these specific and limited terms strikes an appropriate balance between the competing public interests to which we have referred.
Finally, we should say that it may or may not be that some of the material already published constituted a contempt or is otherwise actionable. We express no view one way or the other. It may also be that if it or something like it were now to be published it would be contemptuous. Again we express no view on the subject. This is not an application for injunction to restrain a threatened contempt but only to determine whether it was appropriate for an order to be made in the broad terms in which it was. We say nothing about the propriety of any further orders that may be made. It is open to the parties to approach the judge, or some other judge, at any time if it is considered that a further order is warranted. For now we propose to do no more than vary the order in the manner explained.
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