R & Anor v Independent Broad-Based Anti-Corruption Commissioner

[2015] HCATrans 277

[2015] HCATrans 277

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M234 of 2015

B e t w e e n -

R

First Applicant

M

Second Applicant

and

INDEPENDENT BROAD‑BASED ANTI‑CORRUPTION COMMISSIONER

Respondent

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 20 OCTOBER 2015, AT 9.29 AM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If your Honour please, I appear with MR O.P. HOLDENSON, QC for the applicants.  (instructed by Tony Hargreaves & Partners)

HIS HONOUR:   Thank you, Mr Grace.

MR E.W. WOODWARD, SC:   If your Honour pleases, I appear with MS E.A. BENNETT for the respondent.  (instructed by Independent Broad‑Based Anti‑Corruption Commission)

HIS HONOUR:   Thank you, Mr Woodward.  Mr Grace, I have looked at the papers, of course, for which thank you, and also the outlines of argument for the special leave application.  It appears that the special leave application could be heard in Canberra on Friday, 13 November.  I address this question to both of you in those circumstances.  Is it likely that the respondent would wish to proceed with the examination before 13 November?

MR WOODWARD:   Can I answer that in two parts, your Honour?  Originally at the time of the Court of Appeal decision, the examinations had been put off until today – today or yesterday, I cannot recall which.  In view of the Court accommodating the application today, they have been put off again until Thursday.  So at this stage at least my instructions are that the examinations will be ready to proceed on Thursday. 

There is clearly a concern on the part of the Commission, your Honour, at a general level that the ongoing delay of these examinations – this is now the third occasion on which they have been deferred – is a matter of some concern.  I am not in a position to say today whether if the special leave application is heard on the 13th it will be possible to reschedule the examinations in the window between then and Christmas. 

It probably will be, your Honour, so on that basis, and given your Honour’s indication, I can indicate that broadly my instructions are that the Commission will, within reason, assist the Court in properly dealing with this matter, subject to that overriding concern, your Honour, and in case the hesitation on the part of the Commission is a matter on which your Honour might remark, it is of course – the circumstances before the Court today are ones in which the Court of Appeal has determined that the matter did not have sufficient prospects of success to warrant a grant of leave to appeal.

In those circumstances, the Commission, in our respectful submission not unreasonably, has been a little bit more difficult, if I could put it that way, in accommodating the application – a little less

accommodating – but subject to all those observations, your Honour, the Commission would not – if the matter can be listed for hearing on 13 November, will arrange its affairs to enable the matter to be deferred until after that date.

HIS HONOUR:   Thank you very much, Mr Woodward.  Mr Grace, in those circumstances, are you still seeking an injunction to restrain the Commission from examining the applicants before the determination of the special leave application?

MR GRACE:   Well, if what has fallen from Mr Woodward is accepted, it is akin, we would understand to be an undertaking.

HIS HONOUR:   Well, it is an assurance, it is not an undertaking to the Court but it is one, I suppose, upon which you could act if it were breached.

MR GRACE: Yes, so we would be content to rely upon that assurance. We would seek, however, that there be a continuation of the suppression of the names of the applicants, pursuant to section 77RF of the Judiciary Act 1903 and particularly subsection (1)(a) of that section, that is that:

the order is necessary to prevent prejudice to the proper administration of justice –

HIS HONOUR:   Why is it necessary for the prevention of prejudice to the proper administration of justice?

MR GRACE: One of the issues, as you would appreciate, your Honour, is the protection of the criminal trial process as it may ensue in relation to the applicants. The applicants have so far had their names protected throughout the course of all of these proceedings in the Supreme Court and in the Court of Appeal, pursuant to section 17 of the Open Courts Act (Vic), and what was ordered in those proceedings was what is called a proceeding suppression order in order to preserve the subject matter of the litigation.

Now, we say that it is important to preserve the subject matter of this litigation, at least in substantial part or significant part, for the continuation.  Perhaps suppression is the wrong word.  Perhaps we would be better off relying upon the phrase “non‑publication” of the names of the applicants.

HIS HONOUR:   What, for fear that if the press publish their names they would be so prejudiced in any future trial that they could not get a fair one?

MR GRACE:   Well, it has that potential and it is concomitant with the argument that would be advanced on the special leave application as to the necessity for the examinations to be restrained until any trial takes place, and as part of that would be the submission that once their names are up in the headlights of the front pages of the newspapers, their names would be in the minds of potential jurors so as to potentially impact upon the fairness of the trial.

HIS HONOUR:   Presumably since neither applicant has yet been examined, if either applicant is to be examined it would be some considerable time before any decision is made as to whether either of them should be charged.

MR GRACE:   Well, that is not necessarily the case, your Honour.

HIS HONOUR:   I read, I thought, in the papers that police had deferred their interviews of the applicants until after the proposed examination by the Commission.

MR GRACE:   Yes.  The police have not determined whether they will interview the applicants but, in any event, a decision as to whether or not they will interview the applicants has been deferred until after the examinations.  Now, under section 190 of the IBAC Act, as you would appreciate, your Honour, the Commissioner or the IBAC itself can institute proceedings against the applicants as ‑ ‑ ‑

HIS HONOUR:   Presumably that would not occur until after the examination which they propose to be done.

MR GRACE:   No, but it could occur immediately after the examination. 

HIS HONOUR:   If the Commission were to institute proceedings, it would be likely a committal hearing?

MR GRACE:   Yes, one would presume so.

HIS HONOUR:   And they would not be directly indicted?

MR GRACE:   No.

HIS HONOUR:   So there would be a committal hearing and then the delay following that until trial.

MR GRACE:   Yes.

HIS HONOUR:   And we are looking at something more than a year at least, are we not?

MR GRACE:   Yes, unless the Commission decide to proceed summarily.

HIS HONOUR:   In which case there would be no problem because it would be heard by a magistrate.

MR GRACE:   Yes.

HIS HONOUR:   It does not strike me, Mr Grace, that the publication of the names of either applicant at this stage would have an effect on the fairness of any trial that might be conduct more than a year hence.

MR GRACE:   Well, I speak in terms of potential prejudice, your Honour ‑ ‑ ‑

HIS HONOUR:   I appreciate that.

MR GRACE:    ‑ ‑ ‑ and the practical content of what that might amount to is unknown.  Whether the names would stick in the minds of the reasonable member of the public or not is a matter of conjecture.  You have in the papers, your Honour, details of an opening that is proposed to be given by counsel assisting the IBAC once the examinations commence.  That opening is potentially inflammatory of public opinion. 

If the names of the applicants are mentioned as part of that opening or relevant to that opening and if public examinations of witnesses other than the applicants mention the applicants by name, then we would have the spectre of the press picking up those names and publishing them and, given the inflammatory nature of the subject matter of the inquiry itself by IBAC, those names may well be likely to stick in the minds of potential jurors.

HIS HONOUR:   I understand that but at the moment we are only talking about the period between here and 13 November, in which case there will be no examination.

MR GRACE:   That is correct, your Honour.

HIS HONOUR:   All that could be said by the press at the moment was that the applicants made an application for special leave to appeal from the Court of Appeal’s decision and an assurance was given by IBAC that there would be no examination before that application is heard and determined.

MR GRACE:   Yes.

HIS HONOUR:   Hardly prejudicial, is it?

MR GRACE:   Well, this would be the first time that their names would be so published.

HIS HONOUR:   It is not as if the opening is going to be published now.

MR GRACE:   No.

HIS HONOUR:   And it will not be until and unless there is an examination.

MR GRACE:   Yes, one would expect so.

HIS HONOUR:   I appreciate your concerns and they are legitimate ones but on the other hand I am required to balance those concerns against the interests of open justice.  I am not overly persuaded that the risk of prejudice to either client is such as to warrant the suppression order, or a non‑publication order, at this stage.

MR GRACE:   Yes.  Your Honour may be assisted by the terms of the IBAC Act itself.

HIS HONOUR:   Yes.

MR GRACE:   Section 117 refers to matters that govern how the discretion to open examinations to the public may be exercised by the IBAC, and this was the discretion that was exercised by the IBAC.

HIS HONOUR:   Yes, I have read the Commissioner’s decision.

MR GRACE:   Yes, and you will see that one of the matters that the IBAC itself has considered in its decision to hold a public examination is that it is determined that it would not cause “unreasonable damage” to the applicant’s reputation.

HIS HONOUR:   Yes.

MR GRACE:   I do not rely upon safety or wellbeing, but reputation is a very important factor to be taken into account in relation to persons who are longstanding members of the police force who have been suspended, on pay as you would appreciate, on the basis of a reasonable belief that they have committed serious criminal offences.

HIS HONOUR:   Well, as I say, if it gets to an examination the situation may be different but at the moment we have not arrived at that point.

MR GRACE:   No, we have not, but as soon as their names are allowed to be publicised, there would then be a potential for the media to relate back to

the Supreme Court, Court of Appeal and trial judge’s reasons and refer in detail to what is ‑ ‑ ‑

HIS HONOUR:   Alleged against them.

MR GRACE:    ‑ ‑ ‑ alleged against them, and that has, if publicised, the potential of being revisited by the media in the future and the Court is disempowered in being able to prevent that revisiting.

HIS HONOUR: You could make a further application under section 17 of the Supreme Court Act when and if that event occurs, could you not?

MR GRACE: Well, section 17 of the Open Courts Act or?

HIS HONOUR:   Yes.

MR GRACE:   Yes, yes.

HIS HONOUR:   If you get closer to a trial and the press are disposed to publish details close to the time of trial which really would prejudice the fair trial, then presumably an application of that kind would be granted.

MR GRACE:   Yes.  I raise these issues to alert your Honour to the reality that once the floodgates open they are impossible to close and it is much more difficult to effect any redress or remedy once that occurs and to date there have been six judges of the Supreme Court of Victoria – or perhaps it is five – who have determined that it is appropriate for a non‑publication or a proceeding suppression order under the Open Courts Act (Vic) in order to preserve the fair trial.

HIS HONOUR:   Were any of those applications opposed by representatives of the press?

MR GRACE:   No, they were not.

HIS HONOUR:   Thank you, Mr Grace.

MR GRACE:   Thank you, your Honour.

HIS HONOUR:   Mr Woodward, do you have anything to say on this issue?

MR WOODWARD:   Only this, your Honour, is the fact that the Commission in the past has not actively sought to oppose the suppression orders that have been sought up to this point.  Insofar as the application today is concerned, your Honour, we would make only the observation

which your Honour is no doubt acutely aware of that the test in relation to the operation of section 77RF is a high test. Your Honour, it seems the issue of the equivalent section in the Federal Court Act was most recently considered in a decision of Justice Foster arising in relation to the position of the Obeid’s following the ICAC hearing, and that decision in turn, your Honour – I can hand your Honour a copy if it assists – it is the ACCC v Cascade Coal Pty Ltd.

HIS HONOUR:   Thank you.

MR WOODWARD:   I will also hand to your Honour at the same time a copy of a decision of this Court in Hogan v Australian Crime Commission 240 CLR 651, really just to emphasise the point which your Honour is no doubt aware of and it is dealt with by his Honour Justice Foster at paragraph 30 on page 8, after quoting extensively from the decision in Hogan, his Honour points out that:

The threshold which a suppression order applicant must satisfy is high.  Mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice.

That broadly is consistent with the approach taken by this Court in Hogan.  So the only matter that we would seek to bring to your Honour’s attention is that the test is one that is different at least, if not probably higher, than that that has been applied in the past.  There has been no active opposition to those applications previously by the press or by the respondent.  We would not seek to be heard to be actively opposing it today either, merely drawing to your Honour’s attention, as your Honour is no doubt aware, the threshold that must be met. 

If I could say finally, in relation to our friend’s reliance on section 117 and the issue of reputation, that was a ground of challenge that was pursued before his Honour Justice Reardon at first instance but was abandoned in the appeal, so it has no – at least no direct relevance to the matters that were before the Court of Appeal or before this Court.  So, in those circumstances, your Honour, those are matters we would draw to your Honour’s attention but wish to say no more on the subject.

HIS HONOUR:   Thank you, Mr Woodward.  Anything further, Mr Grace?

MR GRACE:   Yes, your Honour.  There is a distinction in the section between suppression and non‑publication, and section 77RA defines a non‑publication order as meaning “an order that prohibits or restricts the publication of information”, but that does not otherwise prohibit or restrict the disclosure of information.  We are not seeking to prevent the disclosure

of information such as a description of everything that occurred, and that is available publicly at the present time in the various judgments of the trial judge and the Court of Appeal. 

What is being sought to have preserved are the identities of the applicants, and that is the only thing that is sought to be the subject of the non‑publication order.  Perhaps suppression, even though suppression is encompassed by the section concerned, is not the appropriate word to describe what we are seeking.  We are just seeking non‑publication of the applicants’ names.

HIS HONOUR:   Thank you.

On 8 October 2015, the applicants filed an application for special leave to appeal from orders of the Court of Appeal of the Supreme Court of Victoria made on 30 September 2015 refusing the applicants’ leave to appeal from the orders of a judge of the Common Law Division made on 7 August 2015 of which, in substance, the effect was to reject the applicants’ claims for judicial review of the respondent’s decision to examine the applicants in relation to events alleged to have occurred in or about the Ballarat Police Station in January 2015.

By summons dated 16 October 2015, the applicants applied for an injunction to restrain the respondent pending the hearing and determination of the special leave application from examining the applicants and suppression orders or non‑publication orders pursuant to Division 2 of Part XAA of the Judiciary Act 1903 (Cth).

Upon the matter coming on for hearing before me this morning, senior counsel for the respondent conveyed to the Court that, if the special leave application could be heard on 13 November 2015, as I indicated was the case, the Commission was prepared to stay its hand until the hearing and determination of the application; which is to say, not proceed with the examination of either applicant before that time.  Understandably, upon that basis, senior counsel for the applicants is prepared to let the matter stand without pursuing the injunctive relief which was claimed.

As to the application for suppression order or non‑publication order, I note first that, although the application was publicised in accordance with the rules and practice direction, there has been no appearance on behalf of any press or other media organisation or notification of opposition to the making of the order.  I also note that, despite my doubts as to whether publication of the name of either applicant at this stage of the proceeding would give rise to any real risk of prejudice to a fair trial, when and if they are ever charged with any offences arising out of the subject matter of the inquiry, senior counsel for the applicants has pressed upon me that thus far a number of judges of the Supreme Court of Victoria and of the Court of Appeal have been sufficiently persuaded of the possible risk of prejudice to fair trial to make orders suppressing publication so long as the proceedings have been alive in the Supreme Court.

As it appears to me, a considerable period of time is likely to elapse before any decision is made whether either applicant should be charged with any offences arising out of the activities the subject of the respondent’s proposed examination of the applicants, and if either applicant is then charged there is likely then to be a very considerable further period of time before the matter comes to trial.  In those circumstances, I was inclined to think that any unfavourable impression resulting from publication of the applicants’ names at this stage of the proceeding would be so much diminished by the time of trial as not substantially to prejudice either applicant’s right to a fair trial.

Senior counsel for the applicants, however, has urged on me the view that, if the identities of either applicant were published at this stage of the proceeding, it would then be open to the press to identify the applicants with the allegations detailed in the judge at first instance’s reasons for judgment and that the possible effects of that upon the minds of potential jurors would be such that, regardless of what might be done by a trial judge at a later time, the right to a fair trial would be prejudiced.

In the absence of any opposition to those submissions, and assuming as I do that the press do not regard the matter as sufficiently important or significant to warrant opposition, I am prepared to make a non‑publication order until the hearing and determination of the special leave application or further order.  I shall therefore order as follows:

1.I will note the assurance which has been given by senior counsel on behalf of the respondent that the respondent will not proceed with any examination of either applicant before the hearing and determination of the special leave application.

2.I shall order pursuant to section 77RE of the Judiciary Act 1903 that publication of any information tending to reveal the identity of or otherwise concerning either applicant in relation to the subject matter of the respondent’s proposed examination of the applicants is prohibited until the hearing and determination of the special leave application or further order.

3.I shall direct that the applicant file and serve any reply in accordance with rule 41.08 by 3.00 pm on Friday, 23 October 2015.

4.I shall further direct that the applicant prepare and file nine copies of an application book in accordance with rule 41.09.8 and serve three copies of the application book on the respondent by 3.00 pm on Monday, 26 October 2015.

5.The application for special leave to appeal shall be fixed for hearing in Canberra on Friday, 13 November 2015; and

6.I shall reserve the costs of this day’s hearing.

Mr Grace.

MR GRACE:   Would your Honour be prepared to adjourn the relief sought in the summons to Friday, 13 November?

HIS HONOUR:   Yes.  Thank you.

7.I shall adjourn the further hearing of the summons of 16 October 2015 to the court that hears and determines the special leave application in Canberra on Friday, 13 November 2015.

MR GRACE:   If your Honour please.

HIS HONOUR:   Nothing further, ladies and gentlemen?  Thank you for your assistance.

AT 10.03 AM THE MATTER WAS ADJOURNED