HWT v AAA
[2015] VMC 39
•11 DECEMBER 2015
| IN THE MAGISTRATES COURT OF VICTORIA |
AT LATROBE VALLEY
Case No.F12394317
| THE HERALD & WEEKLY TIMES PTY LTD | Applicant |
| v | |
| AAA | Respondent |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 26 NOVEMBER 2015 & 10 DECEMBER 2015 |
DATE OF DECISION: | 11 DECEMBER 2015 |
CASE MAY BE CITED AS: | HWT v AAA |
MEDIUM NEUTRAL CITATION: [2015] VMC039
REASONS FOR DECISION
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Catchwords: Open Courts Act 2013 – Application for Revocation of Broad Suppression Order – s 4, 12, 17, 18, 24, 26 – Evidence and credible information given to satisfy the court that it is necessary for an order to be made – Proceeding Suppression Order made until finalisation of proceedings in the Magistrates Court restricting publication of the respondent’s name, address and any images of him or material likely to identify him until the conclusion of the Magistrates Court proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Moritz | |
| For the Accused | Ms Casey | Paul Vale |
HIS HONOUR:
1 On 26 June 2015, AAA was charged with intentionally destroying property valued at ‘about two million dollars’ by arson at Hernes Oak on 7 February 2014, contrary to s 197 (1) of the Crimes Act and intentionally and recklessly causing a fire contrary to s 201A (1) of the Crimes Act.
2 It is alleged that AAA deliberately lit a fire near the intersection of McDonald’s Road and McDonald’s Track, Hernes Oak on the above date. The prosecution assert that the fire front verged onto the township of Morwell which was contained on 8 February but then as a result of strong winds, reignited on 9 February which caused the fire to progress towards the Hazelwood Open Cut Coal Mine which may have impacted into the Mine where the subsequent Mine fire burned for approximately 40 days.
3 A filing hearing was conducted on 26 June 2015 with orders being made that the prosecution was required to serve the hand up brief by 31 July 2015 and a committal mention was scheduled for 17 September 2015. On 26 June, media representatives made application to the court for access to charge sheets which was granted but the respondent’s name and address were suppressed after the court heard a submission from his legal representative that it was necessary to do so in order to protect the respondent’s safety having regards to the small and close-knit community in which he lives.
4 Despite media representatives being present no objection was made to the application. On 26 November 2015, the applicant applied to the court pursuant to s 15(1)(b)(v) seeking a review of the “Broad Suppression Order” made on 26 June 2015 and requested the court revoke the order in accordance with s 15(3)(a). The application was adjourned until 10 December to enable the respondent’s legal representatives to reply to the submissions made by the applicant in support of the revocation application.
5 Suppression orders are now governed by the Open Courts Act 2013 which came into operation on 1 December 2013. S 4 of the Act creates a statutory presumption in favour of the disclosure of information when determining whether to make a suppression order or closed court order. This presumption operates “to strengthen and promote the principles of open justice and free communication of information”. S 10(1) provides that an applicant for a suppression order must give 3 business days’ notice of the application but s 10(3) permits the court to hear an application despite the failure of the applicant to give this notice if the court is satisfied that; there was a good reason for the required notice not being given or it is in the interests of justice that the court hear the application without notice being given.
6 On 26 June, in view of the nature of the charges laid, the urgency of the application and the lack of objection from media representatives, the court determined that it was appropriate to make the suppression order notwithstanding the lack of notice given.
7 The court has power to issue a ‘proceeding suppression order’ in accordance with s 17 with the grounds for making such an order set out in s 18. The court has power to issue a ‘broad suppression order’ pursuant to s 26 with the grounds for doing so set out in s 26 (1). S 24 provides that a ‘broad suppression order’ must not be made in respect of any information which could be the subject of a ‘proceeding suppression order’. In this matter the respondent relies on s 26 (1) (b), that is, that the court should make an order prohibiting the publication of the respondent’s name and address so as not to endanger his safety.
8 The applicant made a number of submissions in support of its application for the court to revoke the ‘broad suppression order’ made on 26 June. Firstly, it submitted that the form of the order was incorrect having regard to s 24 of the Act which provides that such an order must not be made in respect of any information which could be the subject of a ‘proceeding suppression order’. Secondly, the applicant noted that the order made on 26 June did not contain a specified end date and therefore did not comply with s 12 (2)(3) or (4) of the Act which provides that suppression orders must operate for a fixed period or until the occurrence of an event, that they should not operate for longer than is reasonably necessary to achieve their purpose and where the order is fixed by reference to an event that may not occur, the order must specify a period, not exceeding five years, after which the order expires. The applicant also submitted that a ‘proceeding suppression order’ should not be made on the basis that it has not heard sufficient and credible information necessary to satisfy the court that an order is necessary. In support of its submissions the applicant referred the court to the decisions of Herald &Weekly Times Pty Ltd and Anor v Jones[1] and R v Pomeroy[2]. In Jones, Nathan J said; “Assertion, belief, notoriety are not involved. The court in order to pronounce a suppression order must be moved, in my view, by cogent and admissible evidence of necessity, that in order to protect the physical integrity of an accused, a suppression order should follow”. In Pomeroy, Teague J held, after referring to the decision of Nathan J in Jones, that there would need to be evidence “that there is a clear risk of significant extra danger” to the defendant to justify leaving the suppression order in place. In that case, he was not satisfied that there was.
[1] Nathan J 25 March 1992.
[2] [2002] VSC 178.
9 The question to answer in this application is whether there is sufficient material before the court upon which it can reasonably reach the conclusion that it is necessary to maintain the order prohibiting publication of the respondent’s name and address. A belief that maintenance of the order is necessary to protect his or others safety is insufficient. It must be demonstrated that without the order, the safety of AAA or others, is at risk. The protection of his safety implies the shielding of him from injury or danger. That danger might involve danger of physical harm or it might involve danger to his psychological health or a combination of both.
10 On 10 December 2015, it was submitted on behalf of the respondent that it was necessary that the ‘broad suppression order’ continue until the conclusion of the proceedings in the Magistrates Court. It was submitted that the order ought to be extended to any images of the respondent or material likely to identify the respondent. The respondent submitted that there is widespread community anger following the mine fire with tensions still running high and members of the community looking for people to blame as a result of the financial, social and health implications caused by it.
11 The court was told that following the mine fire serious threats were made via social media to cause harm to the person or persons responsible for igniting the mine fire. The court was told that there was a ‘lynch mob mentality’ in the community which is continuing. It was suggested that without the appropriate suppression order the respondent and his family would be at risk of harm. An example was given of the threats to Mr Sokaluk and his family following the Churchill fire in 2009 and that whilst remanded he had to remain in protective custody. The respondent tendered newspaper articles reporting that Mr Sokaluk’s family was harassed and vigilante groups inundated Facebook with threats of harm to him and his family.
12 The respondent’s mother gave evidence of the threats made via Facebook and the threats made to her husband at work and also told the court that her other son is most vulnerable if he received threats or action was taken against him having regards to his personal circumstances. She also told the court that she feels frightened and vulnerable at home or when out in public which would escalate without the order remaining in place. She also stated that her family is particularly vulnerable having regards to the remote location in which they live.
13 The respondent tendered letters from members of the community who had seen the Facebook messages and who have observed the outrage and anger that still exists in the community following the mine fire.
14 The applicant maintained its position that a suppression order was not necessary in that there was no clear and specific evidence that the respondent’s safety would be endangered if the suppression order was revoked. Furthermore, it was submitted even if threats have been made, these threats are not of a sufficient level to justify a suppression order being made.
15 I am satisfied that the court has been given sufficient credible information and evidence to justify that it is necessary for a suppression order to be in place in order to protect the safety of the respondent and members of his family pursuant to s 17 (b) and s 18 (1)(c) of the Act. I accept the applicant’s submission, that having regards to s 24, a ‘broad suppression order’, is not appropriate in the circumstances. I will revoke the order made on 26 June 2015 and make a ‘proceeding suppression order’ prohibiting the publication of the respondents name and address and any images of him or material likely to identify him. This order is to continue until the conclusion of the proceedings before this court.
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