Herald & Weekly Times Pty Ltd v Mokbel
[2006] VSCA 93
•2 May 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 1502 of 2001
| THE HERALD & WEEKLY TIMES PTY. LTD. & ORS | |
| Applicants | |
| v. | |
| ANTONIOS SAJIH MOKBEL & THE CROWN | Respondents |
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APPLICATION ON SUMMONS
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JUDGES: | CALLAWAY and ASHLEY, JJ.A. and WHELAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 March 2006 | |
DATE OF ORDERS: | 9 March 2006 | |
DATE OF REASONS: | 2 May 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 93 | |
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Appeal – Criminal procedure – Application for leave to appeal against suppression order made by trial judge during course of trial – Restrictions on appeals – Whether order made by trial judge was “on or in relation to” the trial – Leave to appeal – Fragmentation and disruption of criminal trial – Leave refused – Supreme Court Act 1986, ss 17(2), 17A(3), 17A(4), 18, 19.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr W.T. Houghton, Q.C. with Mr D.P. Gilbertson | Corrs Chambers Westgarth and Minter Ellison |
| For the Crown | Mr S. O’Sullivan (sol.) | Director of Public Prosecutions (Cth) |
| For the Respondent Mokbel | Mr M. McNamara (sol.) | McNamaras |
CALLAWAY, J.A.:
On 9th March 2006, for reasons to be published later, the Court made an order refusing this application. My reasons were twofold. First, I doubted that the Court had jurisdiction, having regard to s.17A(3) of the Supreme Court Act 1986. The basis for that doubt appears from the reasons of Whelan, A.J.A. I found it unnecessary to reach a conclusion on the point because of the second reason that I joined in the order. I did not consider that, if leave to appeal were granted, the appeal had sufficient prospects of success. The Court would not, at this late stage of a criminal trial in the Supreme Court, interfere with an order that the trial judge considered necessary, even if we did not agree with all the reasons his Honour gave.
ASHLEY, J.A.:
The reasons given by Whelan, A.J.A. explain, fully and clearly, why I joined in the order refusing the applicants leave to appeal from the order of Gillard J made 1 March 2006.
It is not necessary, in the circumstances, to express any concluded opinion whether s.17A(3) of the Supreme Court Act 1986 would have stood in the way of prosecution of the intended appeal. That said, it appears to me that there is much in the matters mentioned by Whelan, A.J.A. in his reasons at [48]-[52] which might have led to a conclusion adverse to the applicants.
To this I should add a further observation. Within s.17A(3) there are three disjunctives. Ignoring the last of them – that is, “indictment or presentment” – there may be said to be a question how the sub-section should be read. It makes sense to speak of a determination “on” a trial. It also makes sense to speak of a determination “in relation to” a trial – although that might be said to be a species of order made “on” a trial. It also makes sense to speak of a determination made “in relation to” a proposed trial. But it is not easy to conceive of a determination made “on” a proposed trial.
It may be that the sub-section should be read disjunctively – that is, as if it referred to a determination made on a trial, or in relation to a proposed trial. Alternatively, it may be that it should be read as if it referred to a determination made on or in relation to a trial, or in relation to a proposed trial. Alternatively again, and despite apparent semantic difficulty, the phrase “on or in relation to“ might perhaps be read as attaching to both “trial” and “proposed trial”.
The field of operation of s.17A(3) might be considerably affected by which of the various readings was ultimately accepted as being the correct one. The question, which is the correct one, awaits resolution on another day.
WHELAN, A.J.A.:
By a summons filed in the criminal proceeding in which Mr Mokbel was being tried on indictment for an alleged drug offence, the applicants sought leave to appeal from an order of Gillard, J made 1 March 2006. The applicants are all media organisations. The order prohibited publication of evidence given in the trial until verdict or further order.
The summons was filed on 8 March 2006 and was heard by an urgently convened sitting of this Court on 9 March 2006. The application was refused that day for reasons to be given later. A verdict was delivered in the trial on 28 March 2006. These are my reasons for refusing the application.
Material before the court
It is not possible on the material before the Court to give a satisfactory outline of the circumstances in which the order of 1 March 2006 was made. This is not intended to be a criticism of the material which the applicants produced. The application was supported by an affidavit sworn on 7 March 2006 by Renee Lee Enbom, a solicitor acting on behalf of the applicants and who had appeared for the
first applicant on occasions before Gillard, J. The affidavit set out the circumstances surrounding the media’s involvement in relevant aspects of Mr Mokbel’s trial. It produced the relevant orders and reasons. It did not otherwise set out the events in the trial. This is unsurprising in the circumstances. The applicants were not parties to the proceeding. They merely wished to report it. Their lawyers’ involvement had been intermittent.
The material did reveal that Mr Mokbel’s trial had begun in early February 2006 before Gillard, J and that at the time of the hearing the application was still continuing. On Thursday 9 February 2006, the trial judge made a suppression order concerning the evidence of a particular witness. The reasons produced in Ms Enbom’s affidavit concerning the order eventually made on 1 March 2006 (“RLE3”) suggest that this order was made under s.28 of the Witness Protection Act 1994 (Cth) and that his Honour indicated at the time the order was made that he would revisit the order after the evidence of the witness had been completed. Those reasons also indicate that Gillard, J did revisit that matter on 28 February 2006. On that day the order of 9 February 2006 was vacated from 4.30 pm on 1 March 2006, and orders were made concerning reference to a witness by a pseudonym, concerning publication of that witness’s identity, and concerning media access to an edited transcript of that witness’s evidence and access to an exhibit.
The order made on 1 March 2006
In the reasons delivered on 1 March 2006, after the trial judge had referred to the prior orders, he turned to other matters which he said were of concern to him. He expressed concern about how long the media would take to be in a position to provide a fair and accurate summary of “evidence given to date”, about the likelihood of an “avalanche” of media publication, and about “the effect that might have on this jury”. He then referred to prior publicity concerning Mr Mokbel, which he said had prompted him to address that matter with the jury pool; to the unusual circumstances in which some evidence had been led in the trial, as to which he said that steps had been taken to keep those circumstances from the jury; and to what he described as a “change in attitude in the media”, of which he gave a number of instances which were unrelated to Mr Mokbel’s trial. His Honour said that an avalanche of media coverage, which may not be fair and accurate and which may highlight sensational aspects of the trial, might have a prejudicial effect upon the accused. He concluded:-
“I am not prepared to run the risk and in the circumstances I think it appropriate that I should order that there be an embargo on the publication of any matters concerning this trial until verdict or further order . . . “
The order he then made was in the following terms:-
“That publication by print, radio, television, electronic or any other means whatever of any evidence given in this trial be prohibited until verdict or further order.”
It is from that order that the applicants sought leave to appeal.
The trial judge heard an oral application on behalf of the first applicant on 3 March 2006 concerning the orders. He refused to change the order he had made on 1 March 2006.
Initial appearances on this application
When the application was called on on 9 March 2006 a representative of the Crown and a representative of Mr Mokbel appeared. Mr Houghton, Q.C. appeared with Mr Gilbertson for the applicants.
The representatives of the Crown and Mr Mokbel who initially appeared were each solicitors. Each sought an adjournment, citing the short notice and the exigencies of the trial then running before Gillard J. Each indicated that he wished to oppose the application for leave. The adjournment application was, in effect, deferred pending the hearing of Mr Houghton’s submissions, and the solicitors were excused. The solicitor for the Crown then left. The solicitor for Mr Mokbel stayed but took no further active role and made no further submissions.
Mr Houghton, Q.C. and Mr Gilbertson had filed written submissions on 8 March 2006, which were thorough, which focused on the critical issues, and which enabled the Court to deal with the matter expeditiously. At the conclusion of Mr Houghton’s submissions, arrangements were made for the solicitor who had appeared for the Crown to return. The presiding judge announced that the Court would not re-visit the adjournment applications, and that the application was refused for reasons to be given later.
Entitlement to appeal
The applicants submitted they had a right of appeal under s.17(2) of the Supreme Court Act 1958 (Vic).
An appeal lies under s.17(2) from all determinations of a judge of the Trial Division, unless otherwise expressly provided. Restrictions on the entitlement to appeal are provided for in s.17A. Two are relevant here.
Section 17A(3) provides:-
“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.”
Section 17A(4) relevantly provides:
“An appeal does not lie to the Court of Appeal
. . .
(b)without the leave of the Judge constituting the Trial Division or of the Court of Appeal, from a judgment or order in an interlocutory application, being a judgment or order given by the Trial Division constituted by a Judge . . . ”
In their written submissions the applicants contended that even if s.17A(3) were to be held applicable, they still had an avenue of appeal via leave pursuant to s.17A(4). No oral submission was made in support of this contention. It is
untenable. Section 17A(4) is not an additional avenue of appeal. It is an additional restriction upon appeals.
The applicants submitted that s.17A(3) did not preclude an appeal.
Restriction in Section 17A(3)
The history of s.17 and s.17A, and of their predecessor provisions, has been addressed in detail by the High Court in Smith & Ors v. The Queen[1] and by this court in Fernandez v. DPP.[2]It is helpful to recall some aspects of that history.
[1](1994) 181 C.L.R. 338.
[2](2002) 5 V.R. 374.
Prior to 1984 the equivalent provision to s.17 provided for appeals to the Full Court in terms which excluded criminal causes or matters. Thus, the only avenue of appeal (with some exceptions of no present consequence) was in accordance with Part VI of the Crimes Act 1958. Save for appeals by the DPP against sentence, Part VI relevantly provides only for appeals by persons who have been convicted. Accordingly, prior to 1984, the Crown could not appeal at all except after the trial and only as to sentence, and the accused could not appeal unless and until convicted.
These legislative provisions reflected a strong disinclination in appellate Courts to interfere with or interrupt criminal trials (see, for example, R. v. Iorloro[3]).
[3](1983) 151 C.L.R. 678 at 680.
One consequence of the provisions as they stood prior to 1984 was that certain criminal matters could not be subject to appeal at all, save by special leave to the High Court.
In 1984 the equivalent predecessor to s.17 was amended so as to provide for appeals to the Full Court in terms relevantly the same as those in which s.17(2) now
provides for appeals to the Court of Appeal.[4] The restriction which now appears in s.17A(3) was not enacted at that stage.
[4]The amendments were probably prompted by situations such as that which arose in relation to contempt of court in Keeley v. Mr Justice Brooking (1979) 143 C.L.R. 162. It cannot be assumed, however, that the intention was to cover all instances of contempt. The reasoning in Keeley is consistent with a distinction being drawn between contempt dealt with by a separate proceeding (see, for example, R. v. Garde-Wilson [2005] VSC 441 at [31]) and contempt dealt with by a summary trial as an interruption to the principal trial or at the conclusion of the principal trial on the one hand, and contempt dealt with at the time of the contempt to preserve the integrity of the trial or for coercive rather than punitive reasons on the other.
In R. v. Kean and Mills[5] the Full Court held that the expanded appeal provision did not confer appellate rights where a right of appeal under Part VI of the Crimes Act already existed. In that case a trial judge had rejected an application to quash the presentment. The Full Court held that Parliament could not have intended to duplicate rights of appeal, and as the accused had rights of appeal on this issue under Part VI if convicted, the expanded provision did not confer an entitlement to appeal the determination not to quash the presentment. The Full Court observed, reflecting the strong disinclination previously referred to, that it is “no light matter” to interfere with the course of a criminal trial.[6]
[5][1985] V.R. 255 (“Kean and Mills”).
[6][1985] V.R. 255 at 257.
The position then was that the entitlement to appeal was unrestricted, save that the Full Court had interpreted the entitling provision as not applying where a right of appeal on that matter would exist after the trial if a conviction resulted.
In 1986 Parliament intervened again. This time it enacted the predecessor to what is now s.17A(3). That provision was relevantly in the same terms as s.17A(3) is now.
The Court in Kean and Mills had held, before the enactment of the restriction now in s.17A(3), that an accused could not appeal a refusal to quash a presentment under the predecessor to s.17 (2), as the accused could, if convicted, then appeal under Part VI. After the restriction was enacted, in Boehm v. DPP[7] the Full Court considered an appeal from a refusal to stay a criminal proceeding. The Full Court held that the new restriction did no more than to put in statutory form what had been held to be the position in Kean and Mills. The Court held that where there was a refusal of a stay, any appeal by the accused would have to await verdict in the trial. The Court went on to observe that in circumstances where an appeal did not lie under Part VI of the Crimes Act, an appeal would lie to the Full Court under the then equivalent of s.17(2).[8]
[7][1990] V.R. 494 (“Boehm”).
[8][1990] V.R. 494 at 502.
In 1994 the High Court in Smith & Ors. v. The Queen[9] held that this latter aspect of the Full Court’s analysis in Boehm (namely, that where there is no right of appeal under Part VI, the statutory restriction does not apply) was wrong. Amongst other things, the majority judgment pointed out that this process of reasoning would result in the conclusion that the Crown, having no right of appeal under Part VI other than as to sentence, would not be restricted in appealing rulings at or before trial whereas the accused would be so restricted. The majority held the legislative restriction was not to be read down but was to be given its ordinary meaning.
[9](1994) 181 C.L.R. 338 (“Smith”).
The majority in Smith also observed that the legislative restriction was “intended to avoid the fragmentation of criminal trials by appeals brought from rulings before or during the course of a trial, whilst allowing appeals where there was a conviction by a single judge such as occurred in Keeley v. Mr Justice Brooking”[10]. This statement of legislative intent is consistent with the strong disinclination by appellate courts to interfere in the conduct of criminal trials to which I have earlier referred.
[10](1994) 181 C.L.R. 338 at 346.
Two important conclusions emerge from this review.
First, s.17A(3) is not to be read down but must be given its ordinary meaning.
Secondly, the restriction in s.17A(3) reflects a strong disinclination to interfere with or interrupt criminal trials and is designed to protect criminal trials from fragmentation. That protection has consequences. One consequence is that, for all practical purposes, the Crown can never appeal adverse determinations other than on sentence. Another is that the accused can only appeal adverse determinations if and when he or she is convicted.
The ambit of s.17A(3) in the context of suppression orders was considered recently by the Court of Appeal, constituted by Maxwell, P. and Nettle, J,A., in Herald and Weekly Times Pty Ltd & Ors. v. [A] & Ors.[11]In that case a suppression order had been made before any trial date had been set. The Court held that s.17A(3) did not preclude an appeal by a newspaper publisher under s.17(2). It granted leave to appeal, treated the appeal as having been heard instanter, allowed the appeal, and varied the order which had been made.
[11][2005] VSCA 189 (“HWT v. [A]”).
The Court of Appeal in HWT v. [A] was concerned with the words “in relation to” in s.17A(3). The Court held that three “helpful pointers” recognised in England as providing guidance as to whether a decision is a matter “relating to trial on indictment” were of assistance. Those three matters were that the order was not of the kind that used to be deemed by s.7 of the Crimes (Criminal Trials) Act 1993[12] to be part of the trial, that the order was not “closely related” to the trial, and that the subject matter was not an integral part of the trial process nor did it arise in the issue between the Crown and the accused formulated by the presentment. The Court said that the legislative purpose was important, being to avoid fragmentation of criminal trials by appeals, and that this suggested that the phrase “in relation to” was intended to denote a “quite direct nexus” with the trial, which the Court found not to exist in that case.
[12]This Act was repealed by s. 38 of the Crimes (Criminal Trials) Act 1999.
The Court of Appeal in HWT v. [A] acknowledged tension between their analysis of s 17A(3) and earlier views expressed by the Court of Appeal in Re Applications by Chief Commissioner of Police (Vic.)for leave to appeal,[13] where it had not been necessary for the issue to be decided.
[13](2004) 9 V.R. 275.
The Court of Appeal in HWT v. [A] made an important qualification to the conclusion they had reached in relation to the order in question there. It was in these terms:
“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.”[14]
[14][2005] VSCA 189 at [20].
Characterisation of the order made
It seems to me to be clear that the order in question here was made pursuant to s.18(1)(c) of the Supreme Court Act, relying upon the ground provided for in s.19(b). The trial judge’s expressed concern was the effect of publicity upon the jury and possible prejudice to the accused. It does not seem to me that he was relevantly addressing any issue of safety under s.19(c) or any issue under the witness protection legislation.[15]
[15]Although on the limited material before this Court, the possibility that the order was required or was necessary on that ground perhaps cannot be ruled out entirely.
The order in question was an order prohibiting publication of a report of a part of a proceeding, as is provided for in s.18(1)(c). The proceeding in question was the trial on indictment of Mr Mokbel. However one characterises the trial judge’s reasons, the order was made so as to address an issue of possible prejudice to the administration of justice. The potential prejudice was prejudice to the proper disposition of Mr Mokbel’s trial. The order was made during that trial.
Mr Houghton in his oral submissions gave six reasons why this was not an order made “on or in relation to” Mr Mokbel’s trial. They were:
1.The order was not closely related to the trial, in contrast to the orders in cases such as Victoria Legal Aid v. Lewis.[16]
2.The order was also not an order closely related to the trial in contrast to the order in Smith.
3.The order would not have been deemed to form part of the trial by the Crimes (Criminal Trials) Act 1993.
4.The order was not an integral part of the trial process.
5.The subject matter of the order did not concern any issue between the Crown and the accused.
6.The legislative history indicated an intention to enlarge appellate rights.
[16][1998] 4 V.R. 517.
Mr Houghton also submitted that s.17A(3) was to be interpreted as only restricting appeals with the potential to fragment criminal trials, which he submitted was not the position here.
As is readily apparent, Mr Houghton’s submissions mirrored the Court of Appeal’s reasoning in HWT v. [A].
We heard no submission in opposition to the applicants’ analysis, but some objections to the propositions put can be identified.
This suppression order was made during a trial. It was made under s.18(1)(c) and s.19(b) of the Supreme Court Act 1986. It is difficult to say it is not closely related to that trial. In this particular context, the observations of the Court of Appeal in Re Application by Commissioner of Police[17] might be thought to be apposite.
[17](2004) 9 V.R. 275 at 282 [19].
Section 7 of the Crimes (Criminal Trials) Act 1993 provided that certain matters dealt with “before the trial of the person . . . has begun” are to be taken as being part of the trial. The provision could not be relevant here. The order was not made before the trial had begun. It was made during the trial.
Whilst it is true that the subject matter of the order was not an issue arising between the Crown and the accused, it is not clear that this order did not concern an integral aspect of the trial process. It is an order the trial judge made because he was concerned the trial would be prejudiced and perhaps aborted.
The amendments in 1984 were a product of an intention to expand rights of appeal, but the legislative history, and the disinclination to interfere in the conduct of criminal trials, might be seen as supporting a characterisation of this order as one made “on . . . the trial” within the meaning of s.17A(3). The initial appearance by the solicitors representing the Crown and the accused, and the problems which this application presented for them, were a graphic demonstration of the reasons why appeals before verdict are seen to be undesirable.
Counsel for the applicants also submitted that s.17A(3) should not be interpreted so as to preclude an appeal as the consequence would be that there is no avenue of appeal from such an order at any time. This is an important consideration, and one to which the Court of Appeal in HWT v. [A] also referred. But this consideration could not override the plain words of s.17A(3). The very object of s.17A(3) is to restrict appeals, and there is no doubt that one consequence of its provisions is that there will be adverse determinations which the parties themselves, particularly the Crown, will never be able to appeal.
Even if this order were properly characterised as one not made “on” the trial, so that the analysis in HWT v. [A] would be directly applicable, it seems to me that the qualification the Court made to its conclusion, which I have quoted above, might well then be applicable. This order was one tied closely to a particular trial and one made at a time when that particular trial was being conducted.
It is neither necessary nor desirable to reach any final conclusion as to the application of s.17A(3) to this order. It is not desirable because the matter was an application for leave to appeal, brought on with great urgency, on scant material, and where we heard no contrary submissions. It is unnecessary because this is a case where leave to appeal was necessary and for the reasons set out below that leave should be refused.
Section 17A(4) leave to appeal
The applicants correctly submitted that the order in question was an interlocutory order: In the matter of an application by The Chief Commissioner of Police (Vic.).[18] Accordingly, whether s.17A(3) precludes an appeal or not, by virtue of the provisions of s.17A(4) an appeal did not lie unless leave was granted.
[18][2005] HCA 18 at [28] and [101].
The applicants submitted that leave to appeal should be granted as the decision of the learned trial judge was wrong, or attended with sufficient doubt to justify the grant of leave, and because substantial injustice would be done if the decision were allowed to stand. In this respect they cited Niemann v. Electronic Industries Ltd.[19] In the course of submissions, counsel for the applicants accepted that the first aspect of this test might be better expressed in the present context as being that the appeal had sufficient prospects of success.
[19][1978] V.R. 431 at 441 – 2.
I concluded that leave should be refused for the following reasons:
1. The order was one made by a trial judge in the course of a criminal trial. Leave was sought whilst the trial was running. The strong disinclination to interfere with or to disrupt criminal trials, to which I have referred, was a matter which strongly militated against the granting of leave in such a case.
2. The material before the Court on this application was inadequate to form a conclusion that the appeal had sufficient prospects of success. I have referred earlier to the limited material before the Court on this application. The affidavit in support of the application, and the submissions made in support of the application, referred to or revealed a number of circumstances which might have been most relevant but of which this Court was inadequately informed. That material suggested that evidence in the trial had been given in closed court, but this Court had no information on that issue. Reference was made in the trial judge’s reasons to issues concerning witness protection, but we had no information on those matters. The affidavit and the submissions made suggested that some evidence had already been reported but that other evidence had not yet been reported. That material also suggested that some of the media representatives did not oppose a prohibition on publication of some of the evidence until verdict. This Court did not know what evidence had been given and reported, and what evidence had not been reported. This Court did not know what practical difference there was between the position at least some of the media representatives were prepared to accept and the position as a result of the order. It also emerged from the trial judge’s reasons that some aspect of the publicity prior to the trial had prompted the trial judge to adapt his usual procedures when empanelling the jury. On this matter also this Court was inadequately informed. It would have been utterly unsatisfactory for this Court to have attempted to gain the kind of appreciation of these matters, and of other matters that might well have then arisen, which would have been necessary before granting leave in such a case. It was also entirely impractical to do so.
3. The order prohibited publication until verdict. On the hearing of this application counsel for the applicants indicated that it was anticipated that the evidence would conclude either that day or the next day. The applicant’s affidavit produced documents suggesting the trial was “approaching its final stages”. Further, it seemed from the applicants’ material and from the trial judge’s reasons that there had been, and continued to be, significant restrictions on the publication of reports of the trial which were unrelated to the order which was the subject of the application. Whilst that order may be presumed to have been wider than those restrictions, on the material we had it was impossible to say how much wider. It was likely then that the duration of the additional restriction as a consequence of the order (whatever its width) would in all probability be short. As matters transpired, that was the case.
4. The trial judge had expressed himself in a way which enabled a submission to be made that he had not applied the correct test under s.19 of the Supreme Court Act. In substance this submission was that he had not addressed the issue by reference to what was “necessary” in order not to prejudice the administration of justice, but had instead determined to make an order so as to obviate the risk that the quantity or content of media reports might prejudice the accused and lead to the possibility of the trial being aborted, and because he considered it to be “appropriate” to do so. If the trial judge’s approach were correctly so characterised that would be inconsistent with applicable authorities: Re Application by Chief Commissioner of Police;[20] John Fairfax v. District Court[21] and R. v. Pomeroy.[22] The trial judge’s reasons were also expressed in a way which enabled a submission to be made that the order was akin to an injunction restraining an apprehended contempt in circumstances where the apprehension was largely a matter of speculation. (As to injunctions of this kind and the caution which should be exercised in relation to them, see: HWT v. [A].[23]) Cases such as The Age v. Magistrates’ Court[24] illustrate that a detailed consideration of the transcript and of the other material which was before the court that made the suppression order, can reveal that the court was well cognisant of the requisite test notwithstanding the use of terms like “appropriate” rather than “necessary”. Further, such an examination can reveal that the order made was indeed “necessary” for reasons which emerge clearly from the material but which are not clearly expressed in the reasons. For the reasons already given, it was both undesirable and impractical for this Court to have attempted to gain the kind of understanding of the issues in and surrounding this trial which would have been required in order to properly consider those matters.
5. The Crown and the accused wished to oppose leave and to support maintenance of the order. They could not make submissions in this respect unless the criminal trial was interrupted or this application was adjourned, or both. An adjournment of the application was impractical because of the possibility that the application would be rendered futile by the conclusion of the trial. Interruption of the criminal trial was most undesirable. These circumstances are an instance of the reasons why there is a strong disinclination to interfere in criminal trials. They were also a reason why leave should be refused.
[20][2004] VSCA 3 at [30].
[21][2004] 50 ACSR 380 at [96].
[22][2002] VSC 178 at [11].
[23][2005] VCSA 189 at [33].
[24][2004] VSC 10. By contrast, in Herald & Weekly Times v. Magistrates Court of Victoria [2004] VSC 194 it was necessary to decide the issue without reference to evidence as to what had occurred before the Magistrate as the parties were determined to proceed that way (see [5]-[7]).
Conclusion
It is for these reasons that I determined that the application for leave to appeal should be refused.
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