Karam v The Queen (Ruling No 2)
[2022] VSC 168
•28 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0053
| ROB KARAM | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGE: | OSBORN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 March 2022 |
DATE OF JUDGMENT: | 28 March 2022 |
CASE MAY BE CITED AS: | Karam v The Queen (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 168 |
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CRIMINAL LAW – Application for a pseudonym order with respect to the name of a witness.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr T Alexander with Ms J Kretzenbacher and Mr E Dober | Garde Wilson Lawyers |
| For the Respondent | Mr L Crowley QC with Ms R Sharp and Ms A Martin | Mr S Bruckard, Solicitor for Public Prosecutions (Cth) |
| For Her Honour Judge Marich | Mr J T Rush QC |
OSBORN JA:
Mr Rush has made application for the anonymisation of the identity of a witness whom it is proposed to examine in this case. The witness is a judge of the County Court and it is submitted on her behalf that she should be described by pseudonym in the proceedings.
I accept Mr Rush’s submission that I have jurisdiction to make such an order. It is plain from the terms of the Open Courts Act 2013 and, in particular, s 7 of that Act that the provisions of that Act are not exclusive and the Court would have power, pursuant to its inherent powers, to make the order sought.
The present application arises in circumstances which are in some respects unfortunate. It was only following the filing of a late affidavit on behalf of the applicant that the respondent foreshadowed last week an intention to call evidence from the County Court judge.
I can well understand that the short notice of that course being received by a judge who has significant judicial administrative, as well as hearing functions may have caused some apprehension and unnecessary anxiety.
Nonetheless, it is plain what is intended, namely that the judge be questioned about the extent and nature of her involvement as a solicitor, if any, with Ms Gobbo in the course of Mr Karam’s defence of the proceedings which led to the convictions which are the subject of applications for leave to appeal in this case.
There is no question of legal professional privilege. Mr Karam has waived such privilege and put forward affidavit material on his own behalf which refers to his former solicitor’s role and actions. In so doing, he has drawn her into the realm of contested fact in this case and although it may be unfortunate from her point of view that that has occurred, I accept that the proposed evidence is relevant and that her particular role is an important thread in the contested evidence.
Counsel for the applicant and the respondent have confirmed this morning that there is no allegation by any party in this case that the judge acted improperly in any way in the course of fulfilling her role as solicitor for the applicant some years ago.
Mr Rush has emphasised several matters. The first is sensitivity on the part of the judge with respect to her duties to her former client and the second is the risk that she will be the subject of unfair perceptions which affect the public confidence in her performance of her role as a County Court judge, together with a more generalised concern that as a judge she will be drawn into the arena of criminal appeals of this type in a way which is said to be inappropriate.
Mr Rush helpfully referred me to a decision of Bell J of ABC-1 & ABC-2 v Ring & Ring.[1] In that decision, his Honour adopted certain principles stated by his Honour Justice J Forrest in ABC v D1 & Ors; Ex Parte The Herald & Weekly Times Limited.[2]
[1][2014] VSC 5, [18].
[2][2007] VSC 480.
J Forrest J was concerned with a case involving an alleged sexual assault of a plaintiff in a small Victorian rural town and Bell J was likewise concerned with similar sensitive questions relating to the reputation of the applicant in that case.
It will be seen that the circumstances of the present case are well removed from the facts of those cases.
Nevertheless, the principles stated[3] are a useful encapsulation of the matters I must consider.
[3]Ibid [64]ff.
First, the principal rule is that judicial hearings should take place in open court publicly and in open view, with no restriction on reporting. This is a fundamental precept underpinning the administration of justice.
Second, in certain circumstances the administration of justice requires a qualification of the general rule. There will be circumstances where modifications of the general rule are necessarily made to ensure that the administration of justice is not frustrated. These exceptions are many and varied and cannot be prescriptively identified.
Thirdly, the test to be applied by the court in making a pseudonym order is, to use the words adopted in the Open Courts Act 2013, whether it is necessary to do so not to prejudice the administration of justice.
Fourthly, a court in determining whether to make a pseudonym order is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principal rule of open justice in determining whether the administration of justice warrants the making of order.
And omitting the next principle relevant in J Forrest J’s case: sixthly, in determining whether to make such an order, a court is entitled to take into account the fact that there will still be reporting of the proceeding and that the hearing itself will be conducted in open court subject to the restrictions imposed by the pseudonym order.
Seventhly, in determining whether it is necessary to make such an order, usually the proofs must be cogent and will not be satisfied by a mere belief on the part of a party that the order is necessary. However, in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences.
In the present case, I am ultimately not persuaded that a pseudonym order should be made. There are three interrelated reasons which support that conclusion.
The first is that one of the reasons this community has confidence in the judges of the County Court is that they have, as a group, substantial practical experience in trial work. It is the inevitable consequence of the experience which gives rise to that competence that many judges of the County Court will have been involved in serious criminal matters before they are appointed to the Court. It should come as no surprise to the public that prior to her appointment her Honour acted for Mr Karam in trial proceedings.
The second matter is that this Court supervises the conduct of County Court judges each week through the appeal and judicial review processes which bring the conduct and determination of County Court proceedings before the Supreme Court. In turn, of course, single judges of this Court are subject to supervision by way of appeal to the Court of Appeal and, in turn, to the High Court. All of this is part of open justice.
From time to time, single judges are subject to criticism or, perhaps more commonly, respectful disagreement. The nature of a trial judge’s role is such that such outcomes are, to some extent, occasionally inevitable. A degree of controversy comes with the job.
Thirdly, there is no allegation of impropriety against her Honour by either party in these proceedings and although the history which will be explored by way of her evidence does involve some sensitivities, there is nothing about the subject matter of that evidence which causes me to doubt that it should be given other than in open court. It is an integral part of the dispute before me and, on the face of it, in accordance with the principles I have repeated this morning, the evidence should be given in open court unless there is very good reason for a departure from that course and, in turn, in my view, the witness should not be pseudonymised unless that is absolutely necessary.
There is also a risk that if a pseudonym order were made it would be perceived by the press and others as a case of a judge looking after another judge when there was not a proper justification for doing so. But irrespective of that aspect of the matter, I am ultimately simply not satisfied that the proposed derogation from the principles of open justice has been justified in the present case.
Accordingly, I decline to make the pseudonym order sought.
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