Hill v The State of Western Australia [No 2]

[2022] WASCA 149

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   HILL -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2022] WASCA 149

CORAM:   BUSS P

HALL JA

HEARD:   4 NOVEMBER 2022

DELIVERED          :   4 NOVEMBER 2022

PUBLISHED           :   8 NOVEMBER 2022

FILE NO/S:   CACR 145 of 2018

BETWEEN:   DARREN WILLIAM HILL

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STAUDE DCJ

File Number            :   IND 1017 of 2013

Catchwords:

Criminal law - Appellant's appeal against conviction allowed, judgments of conviction set aside and a new trial ordered - Director of Public Prosecutions decides, in the exercise of the prosecutorial discretion, not to retry the appellant - Open‑court or open justice principle - Whether the appellant's name should be removed and replaced by a pseudonym in this court's reasons for judgment in his appeal against conviction

Legislation:

Criminal Appeals Act 2004 (WA), s 3
Criminal Procedure Act 2004 (WA), s 171
Evidence Act 1906 (WA), s 36C

Result:

Suppression order in relation to this court's reasons for judgment rescinded
Appellant's application for a pseudonym order in respect of this court's reasons for judgment dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Mr B L Nugawela and Mr M T Tolcon
Respondent	:	Ms G N Beggs

Solicitors:

Appellant	:	Forbes Kirby
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

AW v Rayney [2012] WASCA 117

Hill v The State of Western Australia [2019] WASCA 209

JUDGMENT OF THE COURT:

1. The appellant has applied for an order that upon general publication of this court's reasons for judgment in Hill v The State of Western Australia[1] his name as the appellant be removed and replaced by a pseudonym.  The application is supported by the appellant's affidavit affirmed 24 October 2022.

   [1] Hill v The State of Western Australia [2019] WASCA 209.

2. An essential feature of courts in the Australian judicial system is that they sit in public.  A corollary of the open‑court or open justice principle is that at common law, absent any limitation or restriction imposed by an order of the court, anyone (including the media) may publish a fair and accurate report of proceedings in open court.  At common law, a superior court may, in the exercise of its inherent jurisdiction, make orders that limit or restrict the application of the open‑court or open justice principle, and the correlative entitlement to publish a fair and accurate report, by, for example, making a suppression order.  However, this jurisdiction may be exercised only where it is reasonably necessary for the proper administration of justice, including securing the fair trial of an accused.  See AW v Rayney.[2]  The open‑court or open justice principle ordinarily includes the publication of the name of the accused in criminal proceedings, both at first instance and on appeal.

   [2] AW v Rayney [2012] WASCA 117 [27] ‑ [35] (Buss JA; McLure P & Newnes JA agreeing).

3. Section 171 of the Criminal Procedure Act 2004 (WA) makes provision for proceedings in a court to be in open court and for the courtroom where the court sits to be open to the public. By s 3 of the Criminal Appeals Act 2004 (WA), that Act is to be read with the Criminal Procedure Act. Nothing in s 171 of the Criminal Procedure Act is relevantly inconsistent with the features of the open‑court or open justice principle at common law that we have mentioned. 

4. In the present case, the appellant was tried and convicted in open court of sexual offences.  His name was published.  There was no suppression order at first instance in relation to the publication of the appellant's name as the accused, and no limitation or restriction upon anyone (including the media) publishing a fair and accurate report of the proceedings at the trial including the appellant's name.

5. When this court allowed the appellant's appeal against conviction, the court set aside the judgments of conviction and ordered a new trial on the counts in respect of which convictions had been entered.  Ultimately, the Director of Public Prosecutions (WA) decided, in the exercise of the prosecutorial discretion, not to retry the appellant.  Notices of discontinuance in respect of the relevant counts in the indictment were filed.

6. This court's reasons for judgment in the appeal were suppressed pending the appellant's retrial for the purpose of protecting the proper administration of justice by ensuring that the appellant's retrial would be fair; in particular, that the jurors would not have access to this court's reasons for judgment in relation to the original trial including its reasons for ordering a new trial.

7. In Western Australia the names of complainants in criminal proceedings involving alleged sexual offences against the complainants are not ordinarily published. Section 36C of the Evidence Act 1906 (WA), in general, prohibits the publication of any matter that is likely to lead members of the public to identify the complainants after people have been accused of sexual offences. That is done in order to protect the privacy and welfare of the complainants.

8. In Western Australia the names of persons who appeal to this court against their conviction for sexual offences are often given a pseudonym in this court's reasons for judgment. Consistently with s 36C of the Evidence Act, that is done in order to protect the privacy and welfare of complainants.  It is not done in order to protect the privacy or welfare of the appellants.

9. In Western Australia there is no law or rule of practice that, where an appeal against conviction is allowed and this court sets aside judgments of conviction for sexual offences and orders a new trial, the appellant's name will be suppressed in the event that, for whatever reason, the appellant is not retried or the appellant is acquitted at the retrial.

10. The acquittal of an appellant at a retrial does not establish that the appellant is innocent.  It merely establishes that the State has not proved the appellant's guilt beyond reasonable doubt.  The presumption of innocence is not displaced and, accordingly, the appellant is presumed at law to be innocent.

11. In the present case, the appellant's affidavit asserts, amongst other things, that even after the Director of Public Prosecutions discontinued the counts in the indictment, the appellant has been shunned and has suffered other prejudice from employers, fellow employees and others who have become aware that he was charged with sexual offences and convicted at the original trial.  The appellant deposes that the fact of the charges and the original convictions, coupled with the retrial not proceeding, have had a continuing impact on his financial circumstances, psychological wellbeing and life generally.  The appellant's statements about his psychological wellbeing are not supported by any expert evidence.  The appellant also deposes that the decision by the Director of Public Prosecutions to discontinue the relevant counts in the indictment means that he has lost the opportunity to be acquitted at a retrial.

12. We are not persuaded, by the contents of the appellant's affidavit and the submissions of his counsel, that it is in the interests of justice that, upon general publication of this court's reasons for judgment in the appeal, the appellant's name be removed and replaced by a pseudonym.  We accept that the matters deposed to by the appellant in his affidavit are a relevant consideration in determining whether the appellant's name should be removed and replaced by a pseudonym.  However, those matters do not outweigh the ordinary application of the open‑court or open justice principle which includes the publication of the name of the accused in criminal proceedings, both at first instance and on appeal.

13. For these reasons, we make the following orders:

    (1)Orders 7 and 8 of the orders made by this court on 30 December 2019, as varied from time to time, are rescinded.

    (2)     The appellant's application for a pseudonym order in respect of this court's reasons for judgment in Hill v The State of Western Australia [2019] WASCA 209 is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KW

Associate to the Honourable Justice Buss

8 NOVEMBER 2022