Herald & Weekly Times Pty Ltd v A - [2005] VSCA 189

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. with Mr D.P. Gilbertson and Mr A.T. Strahan	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…

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] VSCA 189
Decision Date: 1 August 2005

CaseChat Overview and Summary

The case between Herald & Weekly Times Pty Ltd and A, an unnamed accused, was heard by the court to determine the jurisdiction of the Court of Appeal in relation to a suppression order made by the trial judge. The dispute centred on whether the Court of Appeal had the authority to review the suppression order, which banned the publication of certain details about the accused awaiting trial. The primary legal issues revolved around the interpretation of the Supreme Court Act 1986, particularly sections 17(2) and 17A(3), which concern the power of the court to make suppression orders in a manner that upholds the principles of open justice and free speech.

The court examined the statutory provisions and the broader legal context to ascertain its jurisdiction. It considered whether the suppression order was subject to appeal and whether the Court of Appeal had the authority to review such orders. The court also assessed the impact of the suppression order on the principles of open justice and free speech, determining whether the order was consistent with these fundamental legal principles. Ultimately, the court found that it had the jurisdiction to review the suppression order and that the order was made within the confines of the law.

In conclusion, the court determined that it had the jurisdiction to entertain the appeal from the suppression order. It held that the suppression order was made in accordance with the Supreme Court Act 1986 and upheld the principles of open justice and free speech. The court's decision was based on a thorough examination of the relevant statutory provisions and the broader legal context. The final orders of the court affirmed its jurisdiction and the validity of the suppression order, subject to the principles outlined in the Supreme Court Act 1986.

Orders