Prisoners Review Board v Freeman [No 2]
[2010] WASCA 167
•12 AUGUST 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PRISONERS REVIEW BOARD -v- FREEMAN [No 2] [2010] WASCA 167
CORAM: PULLIN JA
NEWNES JA
MURPHY JA
HEARD: 19 JULY 2010
DELIVERED : 12 AUGUST 2010
FILE NO/S: CACV 57 of 2010
BETWEEN: PRISONERS REVIEW BOARD
Appellant
AND
NATHANIEL GEORGE JOSEPH FREEMAN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :HALL J
Citation :NGJF -v- PRISONERS REVIEW BOARD [2010] WASC 107
File No :CIV 1190 of 2010
Catchwords:
Practice and procedure - Suppression order - Principles governing making of suppression order
Legislation:
Nil
Result:
Suppression order not continued
Category: B
Representation:
Counsel:
Appellant: Mr D J Matthews & Ms S T Fox
Respondent: In person
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: In person
Case(s) referred to in judgment(s):
Hume v Council of the Kings School [2010] NSWSC 186
J v L & A Services Pty Ltd [No 2] (1995) 2 Qd R 10
John Fairfax & Sons Pty Ltd v Police Tribunal (1986) 5 NSWLR 465
OV and OW v Members of the Board of Wesley Mission Council [2010] NSWCA 155
R v Davies (1995) 57 FCR 512
Re Alison Ruth Robbins SM; Ex parte West Australian Newspapers Ltd [1999] WASCA 16
Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153
REASONS OF THE COURT: These reasons concern the issue as to whether the suppression order made by this court on 23 June 2010 should be continued or lifted. The order made on that date was that the respondent's name be anonymised and that he be referred to by his initials.
At a hearing before Hall J on 5 March 2010, his Honour made a similar order. Hall J gave leave to counsel for The West Australian newspaper to appear and make submissions. The transcript of that hearing reveals that before the commencement of the proceedings under review in this appeal, there had been proceedings brought by the respondent in 2005 which concerned a writ of habeas corpus and an application for other prerogative writs relating to parole eligibility issues. Hall J was informed that these other proceedings were discontinued and that a suppression order had been sought by the present respondent, but was not granted. The respondent informed Hall J that The West Australian published his name in relation to those proceedings. The respondent submitted that the publication of his name should be suppressed. Counsel for The West Australian submitted that there should be no suppression order.
In the transcript of those proceedings, Hall J acknowledged that justice should be seen to be open and available to public scrutiny; noted that the statutory protection of child offenders in respect of Children's Court proceedings was to ensure that the rehabilitation of a child offender is the paramount consideration and that the possibility of reformation should not be undermined. His Honour acknowledged that the Children's Court of Western Australia Act 1988 (WA) did not apply, but considered that the prohibition in relation to reporting of the proceedings in the Children's Court continued to apply. His Honour referred to a submission by the respondent, that if his name 'continued to be published', it would 'continue to undermine the underlying purpose of the Children's Court Act prohibition'. His Honour then said:
I think there is merit in that view. It does seem to me that the protection afforded to child offenders is one that I should have proper regard to and, balanced against the interests of open justice, I should recognise that the narrow suppression order that is sought in this case would not in any way prevent media outlets from reporting the substance of these proceedings and to publish Mr Freeman's name in respect of them would not seem, on the face of it, to in any way enhance the public interest in that regard.
…
The fact that there was no suppression order in 2005 and that those proceedings could still be reported seems to me to be beside the point. Whilst I cannot correct or ameliorate anything that may have occurred in 2005 that should not diminish the desirability of ensuring that the reformative and rehabilitation factors contained in the Children's Court Act should continue to be respected. (ts 25)
At the directions hearing in this court on 23 June 2010, the suppression order was made to the same effect as that made by Hall J because the parties were not in a position to make detailed submissions. Leave was given to the parties to make submissions about the continuation of the suppression order and leave was given to The West Australian to also make submissions. Only the parties made submissions. The appellant made brief submissions, adverting to the fundamental principle that the administration of justice should be open and submitted that this was qualified only by s 35(1) of the Children's Court Act and submitted that there was no further need for any suppression order.
The respondent submitted that the suppression order should be continued. He submitted that he was a first offender, at the time of the offence a child offender, and that s 35 of the Children's Court Act, imposed restrictions on publication. The respondent submitted that because he had not been discharged from an order of punishment for life as a child offender, his status as a child offender continued to apply and that s 35(1) of the Children's Court Act continued to operate. The respondent further submitted that in relation to civil proceedings in the Supreme Court, the court may grant a 'narrow' suppression order 'by virtue of the Supreme Court's inherent jurisdiction powers'. Reference was made by the respondent to R v Davies (1995) 57 FCR 512 and Re Alison Ruth Robbins SM; Ex parte West Australian Newspapers Ltd [1999] WASCA 16. The respondent also submitted that the suppression order was appropriate to preserve the 'paramount principles of reformation and rehabilitation of child offenders … dealt with in the Children's Court', to 'preserve the legislative purpose and substantive effect of the mandatory judicial protection against identification arising from any Children's Court proceedings by virtue of s 35(1) of the Children's Court Act' and to 'arrest any present or future damage being caused to the respondent's prospects of reformation and rehabilitation if his name were further reported where the respondent's judicial proceedings continue'. The respondent submitted by reference to certain articles already published by The West Australian that the principle of 'open justice' could be 'workably curtailed' where the subject matter of the proceedings could be openly and freely reported without his name being disclosed.
As both parties have referred to s 35 of the Children's Court Act, it is necessary to point out that subsection (1) restricts reports of proceedings in the Children's Court or in any other court on appeal from that court and subsection (2) confers power on the Supreme Court or the District Court in criminal proceedings to make orders restricting publication of particulars or matters likely to lead to the identification of a child. It is clear that that s 35 has no application to the publication of proceedings in the Court of Appeal concerning an appeal against a decision made by the General Division of the Supreme Court exercising its civil jurisdiction.
The question as to whether the suppression order should continue is therefore to be governed by common law authority. Neither party argued that this court did not have implied jurisdiction to control its own procedures and in that respect, to make a suppression order preventing publication of particulars relating to the proceedings if such an order was justified.
The fundamental principle is that the administration of justice must take place in open court and that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it: John Fairfax & Sons Pty Ltd v Police Tribunal (1986) 5 NSWLR 465, 476 ‑ 477 (McHugh J); Hume v Council of the Kings School [2010] NSWSC 186; OV and OW v Members of the Board of Wesley Mission Council [2010] NSWCA 155 [76]. Furthermore, there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient: John Fairfax (477). See also Re Bromfield; Ex parteWest Australian Newspapers Ltd (1991) 6 WAR 153, 183 (Rowland J). In J v L & A Services Pty Ltd [No 2] (1995) 2 Qd R 10, Fitzgerald P and Lee J discussed the subject. They said at 44:
Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings be open to the public and able to be reported and discussed publicly.
Their Honours went on to discuss circumstances in which publicity may be prohibited and referred to categories of cases where some restraint on publication or public access to the courts is permissible, the last of which involved restrictions necessary in the interests of a party or witness in a particular proceeding. Their Honours gave the example of the identities of witnesses or details or particular activities which are not directly material, such as engaging in covert law enforcement operations or providing information to police. Their Honours then said at 45:
It is the last category which gives rise to the most difficulty because of unresolved questions concerning the nature and ambit of the power. Support for a more liberal approach seems substantially confined to modern authority. Even so, information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage' to use the expression adopted in R v Tait (1979) 46 FLR 386.
In this case there is no basis for a continuation of the suppression order. As McHugh JA made clear in Fairfax's case, there must be some material before the court upon which it could reasonably reach the conclusion that it is necessary to make some order prohibiting publication. No such material was placed before the court. There can be no doubt that if material before the court satisfied the court that the rehabilitation of an offender would be interfered with by reason of publication of the respondent's name, then that would be a factor relevant to the exercise of the court's discretion. However, there is nothing here to support the respondent's submission that rehabilitation may be interfered with. The respondent also acknowledges that his name has already been published in relation to the 2005 proceedings commenced by him concerning parole eligibility and in relation to the proceedings under review. The respondent is now 34 years old. The respondent puts forward nothing more than his wish that his name not be published and that is not sufficient to justify the extension of the suppression order. As a result, the suppression order made by this court on 23 June 2010 should not be continued and there will be an order to that effect.
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