Mokbel v Director of Public Prosecutions (Suppression)
[2024] VSC 784
•18 December 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0117
| ANTONIOS SAJIH MOKBEL | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 December 2024 |
DATE OF JUDGMENT: | 18 December 2024 |
CASE MAY BE CITED AS: | Mokbel v DPP (Suppression) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 784 |
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COURTS AND JUDGES – Open justice – Application for suppression order – Whether order necessary to prevent real and substantial risk of prejudice to proper administration of justice – Applicants for suppression order failing to establish that order necessary to prevent real and substantial risk of prejudice to proper administration of justice – Application refused – Open Courts Act 2013, s 18(1)(a).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Condon KC with Dr JR Murphy | Sarah Tricarico Lawyers Pty Ltd |
| For the Respondent | Mr S Thomas | Ms A Hogan, Solicitor for Public Prosecutions |
| For Police Member 1 and Police Member 2 | Ms RL Enbom KC | Corrs Chambers Westgarth |
| For Nine Network Pty Ltd, Seven Network (Operations) Limited and Herald and Weekly Times Pty Ltd | Mr MJ Hoyne | Thomson Geer |
HIS HONOUR:
On 3 July 2012, following pleas of guilty, the applicant was convicted of three serious drug offences and sentenced to a very long term of imprisonment. A subsequent appeal to the Court of Appeal against his convictions was dismissed, and special leave to appeal to the High Court was refused.[1] He currently has an application for leave to appeal a second time, pursuant to s 326A of the Criminal Procedure Act 2009, pending in the Court of Appeal. In his proposed grounds of appeal, he contends that his convictions constitute substantial miscarriages of justice because the proceedings against him were fundamentally irregular on account of, amongst other things, the unlawful conduct of Victoria Police in recruiting and registering his former barrister, Nicola Gobbo, to work as their agent against his interests.[2]
[1]The details of these decisions can be found in the Court of Appeal’s judgment in Mokbel v The Queen [2022] VSCA 83, [1]–[2] (Beach, McLeish and Kennedy JJA) (‘Mokbel CA’).
[2]Mokbel CA [2022] VSCA 83, [5]–[6].
By orders made and/or amended between May 2022 and June 2024, pursuant to s 319A of the Criminal Procedure Act, the Court of Appeal referred, for the making of a reference determination, 25 questions to the Trial Division. The reference determination was heard in the Trial Division by Fullerton J over many days between 5 February and 11 July 2024. On 25 November 2024, her Honour published to the parties, and to the Chief Commissioner of Police, the Reference Determination containing her Honour’s answers to the questions referred by the Court of Appeal.[3] Her Honour’s judgment occupies some 475 pages (1,489 paragraphs), together with another 91 pages of annexures. As her Honour described them, the referral questions were ‘numerous wide-ranging and involve[d] a myriad of contested facts’.[4]
[3]Mokbel v The King [2024] VSC 725R (‘Reference Determination’).
[4]Reference Determination, [25].
At Reference Determination [943], her Honour referred to four members of police. The first two are referred to by their actual names. For present purposes, they now seek to be referred to by the pseudonyms ‘Police Member 1’ (‘PM1’) and ‘Police Member 2’ (‘PM2’), respectively.
On 4 December 2024, PM1 and PM2 (collectively, ‘the police members’) filed documents in the Trial Division giving notice that they wished to apply, pursuant to the inherent jurisdiction of the Court and/or s 17 of the Open Courts Act 2013 (‘the Act’), for a ‘proceeding suppression order’[5] prohibiting the publication anywhere in Australia of a report of the proceeding and any information derived from the proceeding, which identifies (by name, image or particulars) them as being the police members who the Court has found were party to a joint criminal enterprise to attempt to pervert the course of justice.[6] If that order were to be made, the police members contend that 22 redactions of varying length should be made to the Reference Determination.
[5]Defined in s 3 of the Act to mean ‘an order made under section 17’.
[6]See Reference Determination, [1018].
In their documents, the police members describe themselves as the first two police members referred to (named) at Reference Determination [943]. They give notice that they wish to apply for the proceeding suppression order to be made on the grounds set out in s 18(1)(a) of the Act; and that they will also apply for an order that the proceeding suppression order operates in respect of each of them until their death. Section 18(1)(a) permits a court to make a proceeding suppression order if the order is ‘necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means’.
The police members, having given notice under s 10 of the Act, of their intention to apply for a suppression order, this Court, pursuant to s 11 of the Act, notified relevant news media organisations of the application.[7] Pursuant to that notice, counsel appearing for Nine Network Pty Ltd, Seven Network (Operations) Limited and the Herald and Weekly Times Pty Ltd (collectively, ‘the media parties’), appeared and sought leave to be heard on the application. The application for a suppression order was opposed by those media parties and the applicant. The respondent took no position on the application.
[7]The expression ‘relevant news media organisation’ is defined in s 11(3) of the Act to mean ‘a news media organisation which the court or tribunal would ordinarily ensure was sent notice of the making of a suppression order’.
The material in support of the suppression order application
In support of their application for a suppression order, the police members relied upon two affidavits of their solicitor, Daniel Marquet: Mr Marquet’s seventh confidential affidavit, sworn 2 December 2024; and his eighth confidential affidavit, sworn 4 December 2024.
The confidential affidavits exhibited transcript of the evidence given by the police members before her Honour, transcript of relevant discussion between the judge and counsel, and a number of medical reports dealing with the psychiatric health of PM1.
In his seventh confidential affidavit, Mr Marquet deposes to the following matters:
(1)The police members have instructed him that prior to the Reference Determination being provided to them, ‘They had no knowledge of a submission having been made at the referral hearing that they had committed a criminal offence’. As Mr Marquet then put it, ‘They both informed [him] of their distress at learning about the finding’.
(2)PM1 has given instructions that he is still receiving treatment from his psychiatrist for psychiatric conditions referred to in the medical reports exhibited to the seventh confidential affidavit.
(3)PM2 has given instructions that, over the last four years, PM2 has had regular discussions with his general practitioner ‘about the effect that the Nicola Gobbo matters were having on his mental health’. While PM2 has been provided with referrals to a psychologist and psychiatrist, he has ‘hesitated to make any appointments as he had hoped that he could put the matters behind him’.
(4)PM2 has also given instructions that ‘about three weeks ago, he suffered a heart attack’; ‘as a consequence of the heart attack, he has had a stent put in place’; and ‘he will be on medication for the rest of his life’.
(5)Both of the police members ‘have expressed deep concern … about the public disclosure of the court’s finding that they have committed a criminal offence’. They are concerned about the effect on their mental health and ‘their broader lives’. PM1 is retired, but is concerned that there will be adverse impacts on the roles he currently plays in an organisation where he is a volunteer. PM2 is retired. He does not have any plan for immediate employment, but is concerned about the potential for adverse impacts on his employment prospects should he seek employment in the future.
Relevant provisions of the Act
The relevant provisions of the Act for present purposes are ss 17 and 18(1). Section 17 of the Act provides:
17 Court or tribunal may make proceeding suppression order
A court or tribunal on one or more of the grounds specified in section 18 may make a proceeding suppression order to prohibit or restrict the disclosure by publication or otherwise of—
(a) a report of the whole or any part of a proceeding;
(b) any information derived from a proceeding.
Section 18(1) of the Act relevantly provides:
18 Grounds for proceeding suppression order
(1)A court or tribunal other than the Coroners Court may make a proceeding suppression order if satisfied as to one or more of the following grounds—
(a)the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
Example
Another reasonably available means may be directions to the jury.
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c)the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a complainant or witness in any criminal proceeding involving a sexual offence or a family violence offence;
(e)the order is necessary to avoid causing undue distress or embarrassment to a child who is a witness in any criminal proceeding;
Submissions of the police members
The police members submitted that it is necessary to prohibit publication of their identities ‘in a report of the findings of criminality that have been made against them’ because of ‘the circumstances in which those findings have been made’. They observe that, as witnesses, they had ‘no direct knowledge of the other evidence adduced’, and no knowledge of the submissions made by the parties prior to her Honour’s delivery of judgment. They contended that they had ‘no real ability to make submissions at the hearing by reason of their non-participation as a party’; nor could they ‘utilise the court’s processes to obtain relevant documents or determine the evidence to be led by way of their own oral testimony, documentary evidence, and oral evidence from other relevant witnesses. They submitted that, if they had been parties to the proceeding, they ‘may have led further and different evidence in relation to the issues the subject of the findings of criminality that have been made against them’; and that their status as witnesses meant that ‘they were not afforded the procedural fairness that is afforded to parties to a proceeding’.
Additionally, the police members observed that, at no time during their evidence, was it ever put to them that they had committed the criminal offence that the court has now found. Thus, they submit that they had no ability during their evidence (or thereafter) to respond ‘to that serious allegation’.
In their written submissions in this Court, the police members summarised their contentions as follows:
It is evident from the nature of the finding made against them, that if the suppression order sought is not made, then the police members will suffer significant prejudice to their reputation (with consequent harm) and their wellbeing.
The prejudice is not only personal in nature but also extends to the proper administration of justice. If people cannot come to court confident that some kinds of information can be protected from disclosure if necessary (such as their identity as someone found to have committed a criminal offence in the peculiar context that they did not have an opportunity to defend themselves) then confidence in and access to justice may be undermined.
In circumstances where the disclosure of the identities of the police members as people who have been found to have committed a criminal offence will cause serious harm to them and where they were not afforded the procedural fairness afforded to parties to defend themselves, and given that publication of their identity would not materially assist an understanding of the proceeding, a suppression order is necessary to prevent prejudice to the proper administration of justice.[8]
[8]In support of these submissions, the police members relied upon a number of authorities where the Full Court of the Federal Court and the Federal Court have considered the operation and application of s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), which permits that court to ‘make a suppression order or non-publication order on [the ground that] the order is necessary to prevent prejudice to the proper administration of justice’. Those authorities were: A v Commissioner of Taxation [2016] FCA 1307 (‘A’); Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851 (‘Rush’); Porter v Australian Broadcasting Corporation [2021] FCA 863 (‘Porter’); Lee v Deputy Commissioner of Taxation [2023] FCAFC 22 (‘Lee’); Deputy Commissioner of Taxation v Wu [2024] FCA 250 (‘Wu’).
The police members described the order they seek as ‘a narrow suppression order over their identity, and related redactions to the reference determination’.
Counsel for the police members commenced her oral submissions by saying that she wanted to ‘make it clear from the outset, that this application is not made simply on the basis [of] non-compliance with the rule in Browne v Dunn’.[9] She submitted that the application was made, ‘as a result of a forensic choice made by Mr Mokbel, and a course adopted by the presiding judge in respect of the non-compliance with the rule in Browne v Dunn.
[9](1893) 6 R 67.
Counsel for the police members then took the court to the passages in Browne v Dunn upon which she relied as follows:
My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.[10]
And:
To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.[11]
[10]Browne v Dunn (1893) 6 R 67, 70–71 (Lord Herschell LC).
[11]Ibid 76–77 (Lord Halsbury).
Counsel for the police members then referred to the High Court’s decision in MWJ v The Queen.[12] Counsel placed specific reliance upon what was said in the joint judgment of Gummow, Kirby and Callinan JJ at [39] and [40]. Relying on those paragraphs, counsel submitted that one aspect of the rule in Browne v Dunn is that judges should, in general, abstain from making adverse findings about witnesses in respect of whom there has been non-compliance with the rule; and that ‘a course open to cure the injustice to a witness of having no notice or opportunity to defend their own character, is for the witness to be recalled’.
[12](2005) 80 ALJR 329 (‘MWJ’).
After referring to Browne v Dunn, and MWJ, counsel for the police members submitted:
After they [the police members] left the witness box, a submission was made in closing [by the applicant’s counsel], that they had committed a criminal offence by reason of entering into an agreement with Ms Gobbo and others to do X and Y. That agreement was never put to them in the witness box, let alone the allegation.
It was then submitted that her Honour ‘recognised that there had been non-compliance with the rule’, and her Honour ‘turned to what course should be adopted as a result of the non-compliance, as a result of the unfairness’.
Counsel for the police members then submitted that the applicant made a submission, directed at this issue. Counsel contended that, in effect, the submission was that the judge should not abstain from making the adverse finding; what her Honour should do to protect the police members was to make a suppression order. It was submitted that, in these circumstances, and with that submission having been made by the applicant, not to suppress the identity of the police members would undermine confidence in the administration of justice.
Counsel for the police members concluded her oral submissions by summarising the basis upon which the application for a suppression order was made as follows:
But it does appear from the transcript that her Honour envisaged, and that Mr Mokbel envisaged, that if her Honour did go on to make a finding of criminality in circumstances where, as her Honour recognised, there had been non-compliance with the rule in Browne v Dunn, and I say significant non-compliance, and significant non-compliance that would ordinarily result in the judge abstaining from making a finding, it was envisaged that the appropriate response at the very least was to not disclose the names of the members. And that’s, Your Honour, because it would be quite unjust to identify them when they had been denied an opportunity to defend themselves.
Hearing before Justice Fullerton: the aspect relied upon by the police members
In view of the submissions made by counsel for the police members, it is necessary to give a brief description of the circumstances in which the Browne v Dunn issue arose, and to set out some of the discussion that occurred between her Honour and counsel in relation to it. From the outset, I should note that counsel for Mr Mokbel dispute that there was any failure by them to comply with the rule in Browne v Dunn when they led evidence from PM1 and/or cross-examined PM2 at the hearing of the reference determination.[13]
[13]It seems from the transcript that PM1 was called by the applicant; and PM2 was called by the respondent.
During the course of the submissions made during the last three days of the hearing,[14] an issue arose about the parties and third parties being given an opportunity to make submissions to her Honour about whether the copy of the Reference Determination published publicly should be ‘changed, if appropriate, to ensure ongoing protections of various people and the like’. During the course of this discussion, reference was made as to whether the applicant had complied with the rule in Browne v Dunn[15] in relation to ‘various individuals’, including PM1 and PM2. The discussion commenced with her Honour addressing counsel for the applicant as follows:
[M]y judgment will be published to the parties and then the parties and third parties who I will name at the time, will then be given an opportunity to invite me to ensure that the copy that is published publicly is appropriately changed, if appropriate, to ensure ongoing protections of various people and the like.
Obviously, the judgment that goes to the Court of Appeal won’t look like that. But, I think that goes some very considerable distance to addressing what is put against you by the respondent. Namely, that you are seeking a finding of criminality against various individuals, in circumstances where they were not informed in strict terms in advance, that those findings would be made, although as the respondent probably acknowledges, the s 128 certificates weren’t granted in the abstract.
They were granted because of concerns that those officers had that — the questioning may expose them to criminal liability.
[APPLICANT’S COUNSEL]: Indeed, Your Honour.
HER HONOUR: So I think — I make that clear to the parties. Obviously, the Court of Appeal wants to get the judgment as quickly as possible, as does Mr Mokbel, for that matter. But there might be a slight delay before the matter is the subject of public record. It will be, but it may be in an abridged form.
[APPLICANT’S COUNSEL]: And just to assist, Your Honour, we have dealt specifically with this issue in our reply … and we say that the court may consider it appropriate … to [have] notice [given] … to these parties prior to the publication of judgment, to permit them to be heard as to restrictions. But, we certainly don’t agree that they’ve got an entitlement to be heard before Your Honour.[16]
[14]And specifically, during argument on 9 July 2024.
[15](1893) 6 R 67.
[16]Reference Determination transcript, 9 July 2024, T5599.17–T5600.27.
A little later there was then the following exchange between counsel for the Chief Commissioner of Police, counsel for the applicant, and the judge:
[CHIEF COMMISSIONER’S COUNSEL]: There was just one matter in respect of the notice issue that Your Honour just mentioned. I just thought it might be a convenient time to seek permission from the court, both on procedural fairness, but also a welfare issue, to share the submissions with those relevant members, so the first they don’t hear of it is in some months, in terms of a draft judgment. May I just seek - - -
HER HONOUR: Well, … I am disinclined, I should say, to allow or to require the parties to provide their submissions to third parties, because there are a great number of them. Similarly the court does not really want to take on the obligation of providing — as you know, they’re each 300 pages long, and that is just a huge administrative exercise. But surely the Commissioner and current and former members of the police service would be satisfied in knowing that they will be given the opportunity to be heard as to whether there will be any public publication, or public identification of any of them, having engaged in improper conduct or unlawful conduct at a later date. …
So I can’t, I think, oblige you. If the applicant — [applicant’s counsel], you don’t want to be sharing the applicant’s submissions?
[APPLICANT’S COUNSEL]: No.
HER HONOUR: It’s just too big a task. Because being clear, once they’re in the public arena, there’s no control over them really.
[APPLICANT’S COUNSEL]: No.
HER HONOUR: The press will want them. You know, other interested agencies will want them, and before we know it the matter is out of hand.
[APPLICANT’S COUNSEL]: Yes, and the matters that have been raised can be — we say — met by Your Honour’s proposal, which is to give forewarning prior to judgment as to whether or not there should be any redactions made over the judgment to protect those concerns. But not in advance of that.
HER HONOUR: No.
[APPLICANT’S COUNSEL]: No, it’s not appropriate, with respect.[17]
Non-compliance with the rule in Browne v Dunn
[17]Ibid T5602.6–T5603.26.
While, as counsel for the police members emphasised, the application for a suppression order made by the police members is not made simply on the basis of non-compliance with the rule in Browne v Dunn, before determining the application, it is necessary to examine to what extent (if any) there was any non-compliance with the rule in relation to the evidence of the police members.
The first point to be observed is that the circumstances of the present case are unlike the circumstances in Browne v Dunn. In that case, ‘not one question’ was directed either to the credit of the witnesses sought to be impugned on appeal or to the accuracy of the facts to which they had deposed.[18] While, as her Honour observed, PM1 and PM2 ‘were not informed in strict terms in advance’ that particular findings of criminality would be made (sought), the s 128 certificates were not granted to them ‘in the abstract’.
[18]Browne v Dunn (1893) 6 R 67, 76–77 (Lord Halsbury).
Indeed, it appears that PM1 sought (and was granted) a certificate pursuant to s 128 of the Evidence Act 2008 because he objected to giving evidence on particular matters on the ground that his evidence may tend to prove that he had committed the offences of either attempting to pervert the course of justice and/or misconduct in public office; while PM2 sought (and was granted) a certificate under s 128 because of his concern that ‘he may be exposed to a common law charge of perverting or attempting to pervert the course of justice (or conspiring to do the same), and/or misconduct in public office’.
As her Honour noted, the s 128 certificates were not granted in the abstract. That said, and again as her Honour noted, at no stage during the examinations of PM1 and PM2 was it specifically put to them that they had engaged in any criminal activity, or that they had committed the crimes in respect of which they sought the s 128 certificates or, more specifically, that they had engaged in a joint criminal enterprise to pervert the course of justice.
In any event, however, counsel for the applicant submitted in this Court that there was no breach of the rule in Browne v Dunn because, fairly read, the transcript discloses that both of the police members were challenged about the relevant circumstances of their dealings with Ms Gobbo in relation to the applicant. Moreover, their evidence, so far as it was inconsistent with the applicant’s case, so it was submitted, was appropriately challenged by counsel for the applicant during the course of that evidence.
It is not for this Court to determine, as if sitting on appeal, whether there was any relevant failure by the applicant’s counsel to comply with the rule in Browne v Dunn. The point is arguable, and may even be the subject of argument in the event that either the applicant or the respondent seeks leave to appeal against the Reference Determination pursuant to s 319A(5) of the Criminal Procedure Act. For reasons which will become apparent, however, it is sufficient for this Court to deal with the suppression application on the basis that, while the issue of whether or not the police members had engaged in the criminal offences for which they had sought certificates under s 128 of the Evidence Act was a live issue between the parties, the allegations that they actually engaged in that criminal offending were never directly put to them, and that the rule in Browne v Dunn was thus breached.
Should the proceeding suppression order sought by PM1 and PM2 be made?
To the extent that the police members contended that counsel for the applicant had submitted to the judge that her Honour should not abstain from making adverse findings against them, and that ‘what her Honour should do to protect [them] was to make a suppression order’, that submission must be rejected. As the transcript of the hearing before her Honour discloses, the applicant’s position on this issue was that the Court might consider it appropriate to have notice given to any person who might be the subject of an unfavourable criminal finding so as to permit them ‘to be heard as to restrictions’. No concession was made by the applicant during the hearing of the reference determination that anyone against whom an adverse criminal finding might be made would have an entitlement to have the Reference Determination redacted so as to conceal their identities.
Section 18(1)(a) of the Act only permits a suppression order to be made if the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means. As this State’s Court of Appeal has consistently held, the word ‘necessary’ imposes a high standard of satisfaction. The onus is on the applicant for a suppression order to persuade the court that the order is necessary — not merely reasonable or desirable.[19] While there is helpful analysis in the Full Court of the Federal Court and Federal Court decisions relied upon by the police members,[20] it is to be remembered that those decisions concern a differently worded statutory provision. Moreover, whatever might be said about the appropriateness of a suppression order being made in the factual circumstances of those cases, the question for this Court is whether, in the circumstances of this case, the order sought by the police members is ‘necessary to prevent a real and substantial risk of prejudice to the proper administration of justice’.
[19]See Chaarani v DPP (Cth) [2018] VSCA 299, [41]; Mongan v The King [2024] VSCA 125, [12]. See further, Hogan v Australian Crime Commission (2010) 240 CLR 651, 664 [30]; [2010] HCA 21 (French CJ, Gummow, Hayne, Heydon and Kiefel JJ); Kaplan v State of Victoria [2022] FCA 590, [16] (Mortimer J, as her Honour then was) (‘Kaplan’).
[20]A [2016] FCA 1307; Rush [2018] FCA 1851; Porter [2021] FCA 863; Lee [2023] FCAFC 22; and Wu [2024] FCA 250.
In their submissions, the police members talk about ‘confidence in and access to justice’ being undermined if a suppression order is not made; and it being ‘quite unjust to identify them when they have been denied an opportunity to defend themselves’. This all in circumstances where it is said that they ‘will suffer significant prejudice to their reputation (with consequent harm) and their wellbeing’ if a proceeding suppression order is not made.
When one considers the circumstances relied upon by the police members, one could easily conclude that it would not be unreasonable for a proceeding suppression order to be made. Indeed, one might positively conclude that it would, in all the circumstances, be reasonable to make such an order. However, as I have already said, that is not the statutory test which must be applied in this case. At the risk of repetition, the suppression order sought by the police members can only be made if the Court is persuaded that it is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice.
Having considered the evidence relied upon, and submissions made by, the police members, I am not persuaded that it is necessary to make a suppression order so as to prevent a real and substantial risk of prejudice to the proper administration of justice. To the contrary, rather than promoting confidence in the administration of justice,[21] I think it more likely that the redactions the police members seek to the Reference Determination would undermine confidence in the administration of justice:[22] first, because any redactions to any judgment makes the judgment less transparent, potentially causing questions to be asked as to what else about the Lawyer X scandal[23] is now being hidden from public view;[24] and secondly, because some of the redactions sought by the police members would make the Reference Determination difficult to understand, if not incoherent, in parts.[25]
[21]The police members having submitted that the failure of this Court to make the proceeding suppression order sought by them would, in the circumstances of this case, undermine confidence in the administration of justice.
[22]A consequence which the police members submit this Court should strive to avoid.
[23]See AB (a pseudonym) v CD (a pseudonym) (2018) 93 ALJR 59, 62 [10]; [2018] HCA 58 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[24]Not that any such question could be determinative of an application under s 17 of the Act, nor determinative of whether the test in s 18(1)(a) has been made out.
[25]See, for example, the chapeau of the quote at Reference Determination [967].
Moreover, to the extent that the police members submitted that a failure to make the proceeding suppression order they sought would undermine access to justice, I reject that submission. While the submission was not developed by the police members orally or in writing, the submission made[26] seemed to presuppose that witnesses against whom serious allegations might be made may choose not to come to court and/or refuse to give evidence about relevant matters. If that is the submission, it overlooks the power of a court to issue subpoenas and to make other orders compelling relevant witnesses to give evidence.
[26]Briefly referred to in [18] of the police members’ written submissions in this Court.
In short, I am not persuaded that there is a real and substantial risk of prejudice to the administration of justice in the publication of the unredacted Reference Determination.[27] It follows that the proceeding suppression order sought by the police members is not necessary to prevent a real and substantial risk of prejudice to the proper administration of justice;[28] and that the application for a proceeding suppression order must therefore be refused. The fact that the total of the redactions sought by the police members might be ‘narrow’ or ‘modest’ does mean that it has been shown that the order sought is necessary to achieve the purpose set out in s 18(1)(a) of the Act.
[27]By which, I mean publication of the Reference Determination without the redactions sought by the police members having been made to it (although it may otherwise be necessary to redact it to comply with previous Court orders, other statutory provisions or on some other basis).
[28]See further, Mortimer J’s discussion on the issue of procedural fairness in Kaplan [2022] FCA 590, [54]–[61].
Conclusion
The application by PM1 and PM2 for a proceeding suppression order will be refused.
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