Hopley v The State of Western Australia
[2014] WASCA 30
•6 FEBRUARY 2014
HOPLEY -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 30
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 30 | |
| THE COURT OF APPEAL (WA) | 06/02/2014 | ||
| Case No: | CACV:127/2013 | 13 NOVEMBER 2013 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 13/11/13 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | GARETH HOPLEY THE STATE OF WESTERN AUSTRALIA LEIGH JEZEWSKI WEST AUSTRALIAN NEWSPAPERS LTD CHANNEL 7 PERTH PTY LTD |
Catchwords: | Administration of justice Nonpublication orders Extension of nonpublication orders refused Open justice |
Legislation: | Criminal Procedure Act 2004 (WA), s 171 |
Case References: | West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HOPLEY -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 30 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
WEST AUSTRALIAN NEWSPAPERS LTD
First Respondent
CHANNEL 7 PERTH PTY LTD
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
File No : IND 157 of 2013
Catchwords:
Administration of justice - Nonpublication orders - Extension of nonpublication orders refused - Open justice
Legislation:
Criminal Procedure Act 2004 (WA), s 171
Result:
Application dismissed
Category: B
Representation:
CACV 127 of 2013
Counsel:
Appellant : Ms K A Vernon
Respondent : No appearance
Solicitors:
Appellant : Lyn Zinenko Lawyers
Respondent : No appearance
CACR 221 of 2013
Counsel:
Appellant : Mr J F O'Sullivan
First Respondent : Mr A V McCarthy
Second Respondent : Mr A V McCarthy
Solicitors:
Appellant : State Solicitor for Western Australia
First Respondent : Lavan Legal
Second Respondent : Lavan Legal
Case(s) referred to in judgment(s):
West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10
1 McLURE P: Gareth Hopley, the appellant in appeal CACV 127 of 2013 (the first appellant) and Leigh Jezewski, the appellant in appeal CACR 221 of 2013 (the second appellant) applied for an extension of suppression orders pending the hearing of appeals from the decision of Eaton DCJ on 12 November 2013 refusing to extend suppression orders made in criminal proceedings against the first appellant. The second appellant was a witness for the prosecution in those criminal proceedings. At the material times, both appellants were serving police officers. Following an urgent hearing on 13 November 2013, the court dismissed the extension application. These are my reasons for joining in that order.
Background
2 On 20 April 2012, the first appellant was charged in the Perth Magistrates Court with dangerous driving causing death. The first appellant was driving a police car in the course of his duties when the incident occurred. The second appellant was a passenger in the vehicle. Both appellants were members of the police 'gang crime squad' at that time.
3 On 22 May 2012 the first appellant appeared in the Magistrates Court and entered a plea of not guilty. On the application of the first appellant, Magistrate Mignacca-Randazzo made a suppression order to the effect that there be no disclosure or publication of the first appellant's name or of other matters likely to lead members of the public to identify the first appellant until further order.
4 The first appellant was committed to stand trial in the District Court. On 26 April 2013 the Chief Judge directed that the order made by Magistrate Mignacca-Randazzo remain in force unless set aside by the District Court.
5 On 21 October 2013, Schoombee DCJ, on the application of the second appellant unsupported by affidavit, made a suppression order in his favour in the same terms as that made by Magistrate Mignacca-Randazzo relating to the first appellant.
6 Prior to the commencement of the first appellant's trial on 4 November 2013, counsel for West Australian Newspapers Ltd and Channel Seven Perth Pty Ltd, indicated they wished to be heard in relation to the suppression orders. The trial judge (Eaton DCJ) varied both suppression orders to extend until 10.00 am on 5 November 2013 which was subsequently extended until 11.00 am on 13 November 2013. The trial of the first appellant proceeded in open court.
7 On the morning of 5 November 2013 the first appellant filed an application under s 171(4) of the Criminal Procedure Act 2004 (WA) (the CPA) supported by an affidavit sworn by him on 4 November 2013, for orders that:
1. Except where otherwise ordered all persons not associated with the matter be excluded from the court during the hearing of this application;
2. The name and any image of the accused be prohibited from publication outside of court; and
3. Any matter likely to lead to the accused's identification be prohibited from publication outside the court.
8 Also on the morning of 5 November 2013, counsel for the State handed up an application by the second appellant seeking orders in the same terms as the first appellant. However, there was no affidavit in support of that application. The trial judge adjourned both applications until 9.15 am on 6 November 2013.
9 On the morning of 6 November 2013 counsel for the Commissioner of Police (Mr J Bennett) handed up an application by the Commissioner seeking broader suppression orders than that sought by the first appellant. That application was supported by an affidavit sworn by the second appellant on 6 November 2013. Both applications were heard by the trial judge on that date. He reserved his decision.
10 After the hearing on 6 November 2013, the second appellant filed an application for suppression in substitution for the application made by the Commissioner of Police and sought narrower relief. The second appellant sought an order prohibiting the publication of any part of the evidence at trial relating to the identity and images of the second appellant and any information which would reveal his identity, rank, origin and present location within the West Australian police force and the grounds on which the court made the orders.
11 The trial judge handed down his decisions on 12 November 2013. He was not satisfied that it was in the interests of justice to grant either application both of which were dismissed. He proposed to order that the existing suppression orders be cancelled forthwith. The appellants indicated their intention to appeal to this court from the dismissal of their applications and to seek an interlocutory extension of the suppression orders pending the determination of the appeals. The trial judge extended the suppression orders until 11.00 am on 13 November 2013.
The trial judge's reasons for decision
12 The second appellant was the first witness for the prosecution in the trial of the first appellant. His evidence at trial was relied on by the trial judge. Based on that evidence, the trial judge inferred that the work of the appellants on a day-to-day basis as members of the gang crime squad brought them regularly into face-to-face contact with members of motorcycle gangs. He said it was clear that the appellants knew gang members in the sense that they readily recognised those known to them and it was equally clear that they would, as officers of the gang crime squad, have been known by gang members and readily recognised by them as being police officers and members of the gang crime squad at the relevant time.
13 Based on the second appellant's affidavit the trial judge said it was clear that the second appellant had been recognised as a member of the gang crime squad even when socialising with other squad members. He and other squad members had left licensed premises because they were being heckled by gang members. The trial judge inferred that the gang crime squad was not a covert squad and that the relationship between the gang crime squad and gang members was a tense one. The trial judge observed that it would not be unusual for police officers to be threatened by people in the course of their duty and there was no evidence that the second appellant or police authorities had taken any steps to minimise any perceived risk to him arising from his involvement in the criminal proceedings, he having been aware for the previous 18 months that it was likely he would be required to give evidence at trial.
14 Three weeks before the first appellant's trial and well knowing that it was imminent, the second appellant joined the police 'tactical response group' (TRG) which he estimated involved approximately 70% work of a covert nature.
15 The first appellant's affidavit sworn on 4 November 2013 in support of his application was, according to the trial judge, in almost identical terms to his affidavit in support of his application for a suppression order in the Magistrates Court in May 2012. The trial judge was very critical of its scope. It offered very little about the first appellant's work circumstances after he was charged with dangerous driving causing death and contained no information as to the organisation or constitution of the gang crime squad. The court was not provided with affidavit evidence as to how and why the first appellant's duties were reallocated after he was charged with the offence.
16 The trial judge was told from the bar table after being charged the first appellant was removed from operational duty for a period of time and then did telephone intercept work and that there were approximately 40 officers in the gang crime squad, 10 of whom were uniformed officers. The trial judge inferred that the appellants were uniformed officers. The uniformed officers wore police overalls that did not identify their name or number.
17 The trial judge noted from the first appellant's affidavit that his involvement in the incident giving rise to the criminal charge was known to motorcycle gang members since early May 2012. The trial judge continued:
Being in close proximity to gang members is part of the [gang crime squad's] modus operandi. Tension between the squad and the gangs is likely to be inevitable. It cannot be the case that mere membership of the squad would lead to the making of a suppression order in every case involved in the evidence of a squad member.
Equally, it cannot be the case that mere membership of the [TRG] would lead to the making of a suppression order in every case involving the evidence of a group member.
18 There was also evidence that from time to time, members of the gang crime squad were removed from the squad for their safety by those in the force responsible for the deployment of police officers. No such action had been taken in relation to the appellants.
19 The trial judge concluded:
I am far from satisfied that the publication of [the second appellant's] name will endanger State or national security or will compromise any operation currently being undertaken by the [TRG]. I am far from satisfied as to the quality of the evidence offered in support of both applications by reason of the various matters already mentioned by me.
I am not satisfied that it is in the interests of justice to grant either application.
The legal framework
20 Section 171 of the CPA relevantly provides:
(2) Subject to this section, all proceedings in a court are to be in open court and the courtroom where the court sits is to be open to the public unless this Act or the rules of court or another written law provides otherwise.
…
(4) On an application by a party to the case, or on its own initiative, a court may, if satisfied it is in the interests of justice to do so -
(a) order any or all persons, or any class of persons, to leave or be excluded from the courtroom during the whole of the proceedings, or a part of them specified by the court;
(b) make an order that prohibits the publication outside the courtroom of the whole of the proceedings, or a part or particular of them specified by the court;
(c) make an order that prohibits or restricts the publication outside the courtroom of any matter that is likely to lead members of the public to identify a victim of an offence.
…
(6) An order made under subsection (4) may be made subject to conditions specified by the court.
21 In West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10 (WAN v WA), this court considered an appeal against a non-publication order made in a criminal trial preventing the publication outside the courtroom of the name or identity of a male prosecution witness in a wilful murder trial. I assume that s 171(4)(b) of the CPA is the source of the power to make such an order. The name of the witness and his evidence was given in open court. Owen JA (with whom Wheeler & Buss JJA agreed) said:
The principle of open justice is a significant element within the proper functioning of the justice system. It promotes veracity of testimony by encouraging attention among those involved in a case to the seriousness of the judicial process. Publicity may cause (or encourage) others with relevant information to come forward. It increases the community's appreciation of the methods of government and confidence in judicial remedies. It also ensures that the fairness, integrity and efficiency of the courts, and its administrators, are subject to public scrutiny [30].
22 Owen JA accepted that it was only in exceptional circumstances that courts depart from the principle of open justice by prohibiting the publication of the name or identity of a witness in criminal and other proceedings. Mere embarrassment, distress, loss of privacy or shame if the identity of the witness were revealed is not sufficient. In that case the evidence established that there was a real risk that the witness's mental health would be seriously compromised by the publication of his identity. He had suffered from mental illness for a number of years, had been treated in three different institutions, had contemplated suicide and attempted self-harm.
Analysis
23 As the application before this court sought interlocutory relief, it was not for this court to determine the appeals. However, by analogy with the principles applicable to a stay, the court would not make an interlocutory suppression order unless the relevant appeal had a reasonable prospect of success. I was not persuaded that either appeal had a reasonable prospect of success.
24 As in WAN v WA, the second appellant was named and gave evidence in open court. The first appellant was named and present in open court. In the circumstances of this case, those factors told against the appellants' claim that suppression orders were necessary to protect the appellants against the risk of physical harm from motorcycle gang members. Any gang member with malign intent would have had little difficulty in obtaining the identifying details of both appellants.
25 However, there is a more fundamental objection. The evidence before the trial judge and this court fell well short of establishing that failure to make a suppression order would result in any realistic risk of physical harm to the appellants or their families over and above any risk flowing solely from their position as a member of the gang crime squad. The criminal proceedings did not involve any claim against or involving any gang member. In short, I agree with the trial judge's evaluation of the affidavit evidence.
26 As to the second appellant's recent move to the TRG, the covert work is identified as including the protection of undercover officers involved in drug transactions, arresting the 'target' once a drug transaction is complete, and assisting in witness protection. The work is covert in the sense that officers do not wear or use equipment that identifies them as a police officer. In essence, the claim is that mere membership of the TRG justifies the making of a suppression order. The second appellant swore that if his identity was made public 'then this may compromise my involvement in any current undercover operation as I am more likely to be identified as a police officer'. Having regard to his very short time in the TRG, I am not persuaded that his assessment of what may or may not happen is reliable. Further, the second appellant had been a uniformed police officer with face-to-face contact with motorcycle gang members which did not seem to be an impediment to his covert operations. In any event, any exposure resulting from the criminal proceedings would have a time limited effect. The second appellant's circumstances do not justify a departure from the principle of open justice.
27 It is important that police officers and others working within the criminal justice system are not perceived as receiving preferential treatment in the application of the principle of open justice or exempt from the rationales that underpin it.
28 BUSS JA: I joined in the orders made by the court on 13 November 2013 for the reasons given by McLure P.
29 MAZZA JA: I agree with McLure P.
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