Mongan v The King

[2024] VSCA 125

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0034

DANIEL MONGAN	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, KENNEDY and TAYLOR JJA
WHERE HELD:	Shepparton
DATE OF HEARING:	6 June 2024
DATE OF JUDGMENT:	6 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 125
CASE MAY BE CITED AS:	Mongan v The King (suppression application)

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COURTS AND JUDGES – Open justice – Application for suppression order – Whether order necessary to protect real and substantial risk of prejudice to administration of justice – Whether order necessary to protect safety of any person – Order suppressing publication not necessary – Application for suppression order refused.

Open Courts Act 2013, s 18.

Chaarani v DPP (Cth) [2018] VSCA 299 applied.

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Counsel
Applicant:		In person
Respondent:		Ms E Ruddle KC
Solicitors
Applicant:	Unrepresented
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KENNEDY JA
TAYLOR JA:

1. On 18 September 2019, the applicant pleaded guilty in the County Court at Bendigo to one charge of false imprisonment, one charge of common assault, one charge of aggravated burglary, and one charge of making a threat to kill. On the following day, he was sentenced to a total effective sentence of 4 years and 6 months’ imprisonment, with a non-parole period of 3 years. On 19 March 2021, this Court dismissed his appeal against that sentence.

2. On 28 February 2024, the applicant filed an application for an extension of time within which to seek leave to appeal against the convictions for which he was sentenced following his plea of guilty in September 2019.

3. On 30 May 2024, the applicant filed an application seeking an order to suppress the publication and dissemination of information, by any means, related to the criminal proceeding for which he had previously been sentenced. In making that application, the applicant asserts that:

   1.The publication and dissemination of this material would prejudice the proper administration of justice; and

   2.The publication and dissemination of this material is required to protect the safety of a person.

4. In an affidavit in support of his suppression application, the applicant makes a number of assertions as follows:

   •‘I have a unique name, the publication of my name in connection with this matter may adversely impact a future jury, should this matter be retried.’

   •There are media articles currently accessible by the public.

   •Following his release from custody, the applicant was a victim of low-level domestic violence.

   •The applicant has lost a number of jobs.

   •When colleagues/employers discover his criminal record, the applicant has been dismissed shortly thereafter — even though his job performance has been ‘well regarded’.

   •‘The community in Shepparton is very small in comparison to other jurisdictions, as is the potential pool of jurors. Given the experience with employers, it is expected that a similar issue may arise with a pool of jurors.’

5. The applicant asserts that publication, in these circumstances, would prejudice the proper administration of justice in relation to any retrial that this Court might order.

6. The short answer to this contention is that, in the event that this Court grants the applicant the relief he seeks and orders a retrial, and in the event that the Director of Public Prosecutions does not file a notice of discontinuance,[1] issues relating to any necessary non-publication orders can be dealt with at that time. At the moment, it is too early to consider whether there could be any possible prejudice to the administration of justice in permitting the fair reporting of the proceeding presently before the Court.

   [1]Cf Mokbel v DPP (Cth) [2021] VSCA 94.

7. More particularly, we are not satisfied that the prospect that there might one day be a retrial makes it necessary for a suppression order to be made so as not to prejudice the proper administration of justice.

8. In relation to the alternative basis upon which the applicant seeks a suppression order — namely, that it is necessary to protect the safety of a person — the applicant makes a number of assertions in seven paragraphs of his affidavit in support of the suppression application. It is not necessary for us to rehearse those paragraphs in these reasons. The material in them is of a private nature, relating solely to the applicant. It is sufficient for us to say that there are at least two reasons why we would not make the order sought by the applicant on this alternative basis.

9. First, given the applicant’s preparedness in the past to produce a document which, if his application to overturn his conviction is successful, must have been utterly false (we refer of course to the applicant’s letter to the sentencing judge wherein he admitted his crimes and expressed ‘deep and sincere regret’ for his actions), it must now be asked how this Court could realistically accept any of the uncorroborated assertions he now makes in his affidavit in support of his application for a suppression order.

10. Secondly, even if accepted, the material the applicant relies upon to support this alternative basis is, to say the least, thin. Specifically, if an applicant for a suppression order wants to rely upon matters of the kind referred to in the applicant’s affidavit, evidence significantly more substantial (possibly involving the tendering of relevant supportive expert opinions) would need to be tendered in support of that application.

11. In summary, we are entirely unpersuaded that the unsupported assertions made by the applicant in his affidavit justify this Court taking the very unusual step of granting the applicant the suppression order he seeks.

12. More generally, s 18 of the Open Courts Act 2013 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; or the order is necessary to protect the safety of any person. As this Court has previously 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.[2]

    [2]See Chaarani v DPP (Cth) [2018] VSCA 299, [41].

13. The material relied upon by the applicant in support of his application for a suppression order in the present case does not establish that the order is necessary for either of the purposes upon which he relies.

14. The applicant’s application for a suppression order is refused.