R v Casey Georgeson (a pseudonym)
[2023] ACTSC 354
•15 November 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Casey Georgeson (a pseudonym) |
Citation: | [2023] ACTSC 354 |
Hearing Date: | 15 November 2023 |
Decision Date: | 15 November 2023 |
Reasons Date: | 28 November 2023 |
Before: | Baker J |
Decision: | See [19]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – non-publication orders – application to continue non-publication order under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – where accused is to participate in reverse caution interview – whether non-publication order is required for administration of justice – consent of both parties to making of order – non-publication order continued. |
Legislation Cited: | Criminal Code Act 1995 (Cth), ss 11(1), 307(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111 |
Cases Cited: | Bond v the Queen (1992) 62 A Crim R 383 Hogan v Hinch [2011] HCA 4; 243 CLR 506 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Monday (a pseudonym) v The Queen [2022] ACTCA 25; 369 FLR 99 R v Meegan [2014] ACTSC 263 |
Parties: | The King ( Crown) Casey Georgeson (a pseudonym) ( Accused) |
Representation: | Counsel M Hassall ( Crown) J Moffett ( Accused) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Andrew Byrnes Law Group ( Accused) | |
File Number: | SCC 124 of 2022 |
BAKER J:
Introduction
1․On 15 November 2023, I made orders continuing a non-publication order which prohibited the publication of any information that may identify the accused. I also continued orders allocating a pseudonym to the accused. These are my reasons for so ordering.
2․By indictment dated 31 October 2021, the accused, Casey Georgeson, was charged with the following offence:
(a)Count 1 (SCAN447/2023): attempt to possess a substance, the substance being unlawfully imported, the substance being a border-controlled drug, namely methamphetamine, and the quantity being a commercial quantity, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Cth).
3․This was the fourth indictment laid against the accused. It replaced three previous iterations of the indictment, each of which had charged the accused with the same offence by way of joint commission with a co-accused (the former co-accused). Other iterations of the indictment had charged the former co-accused and another accused with separate offences that were not alleged against the present accused. The trials of the former co-accused and the other accused have now been severed from the accused’s trial.
4․On 14 November 2023, counsel for the accused contacted the Court advising that the accused intended to enter a plea of guilty to the offence charged in the 31 October 2021 indictment. Counsel requested that the matter be urgently listed for arraignment. Counsel also requested that the listing not be publicised, and that the accused’s former co-accused not be informed of the listing.
5․On 14 November 2023, I listed the matter before myself on 15 November 2023 for arraignment and made the following orders:
(1)Pursuant to s 111(1)(a) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), I forbid the publication of the name of the accused, or any other evidence or any other information that may identify her or connect her with the co-accused or these proceedings, until further order of the Court.
(2)I order that the accused, [redacted], be referred to by the pseudonym “Casey Georgeson”, until further order of the Court.
6․On 15 November 2023, the accused was arraigned and, as foreshadowed, pleaded guilty to the charge.
7․Counsel for the accused then sought orders extending the non-publication order that had been made on 14 November 2023 until further order of the Court.
8․The accused’s counsel explained that orders were sought for the non-publication order to be continued because the accused had agreed to participate in a “reverse caution” interview to disclose “relevant information” to the trial of the former co-accused (and to potential future charges against another person). That procedure involves “a recorded interview wherein an offender is free to disclose the full extent of their involvement in offending without fear of further prosecution”, so that prosecuting authorities may “ascertain any value of evidence offered against any co-offender”: DPP v Cheng [2018] VCC 1399 at [20]. The accused’s counsel explained that the accused was fearful of the former co-accused, against whom it was expected that information would be given in the reverse caution interview.
9․Counsel for the Crown had “no difficulty” with the Court accepting the representations about the accused’s fear of the former co-accused from the bar table. The Crown accepted that it was appropriate for the non-publication order to be made.
10․Both parties agreed that in the circumstances, the most appropriate course of action would be to adjourn the matter until a date after the reverse caution interview and continue the non-publication order made on 14 November 2023 “at least until the reverse caution interview has been conducted.”
11․After considering the submissions of both counsel, I ordered that the non-publication order be extended.
Reasons
12․Section 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA) provides as follows regarding the making of non-publication orders:
111 Prohibition of publication of evidence etc
(1)This section applies if a court considers that—
(a)the publication of evidence given, or intended to be given, in a proceeding is likely to prejudice the administration of justice;
(b)in the interests of the administration of justice the names of any of the following people should not be published:
(i) a party to the proceeding;
(ii) a witness, or intended witness, in the proceeding.
(2)The court may, at any time during or after the hearing of the proceeding, make an order forbidding the publication of—
(a)the evidence or a stated part of the evidence; or
(b)a report of the evidence; or
(c)the name of the party or witness.
(3)The court may make an order under subsection (2) (a) or (b) subject to any stated condition or for any period the court considers appropriate.
(4)If a court makes an order under subsection (2), the court may, if it considers it appropriate, direct that stated people, or everyone except stated people, remain outside the courtroom for a stated period.
(5)For this section, the publication of a reference or allusion to a person is taken to be a publication of the person’s name if—
(a)the reference or allusion discloses the person’s identity; or
(b)the person’s identity might reasonably be worked out from the reference or allusion.
13․The relevant principles to be applied in considering an application for a non-publication order under s 111 of the EMPA are well-established: see R v Meegan [2014] ACTSC 263; Monday (a pseudonym) v The Queen [2022] ACTCA 25; 369 FLR 99.
14․The starting point in any consideration of the making of a non-publication order under s 111 is the recognition of the importance of the principle of open justice. As French CJ held in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 532 [20]:
An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional society. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard.
See similarly John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 – 477.
15․However, as French CJ continued in Hogan v Hinch, the principle of open justice “is not absolute”. Section 111 recognises that in some circumstances, the principle of open justice may be required to yield to the need to ensure the proper administration of justice in the particular case.
16․Whilst recognising that the threshold for suppressing the name of the accused is “a high one” and that “it is particularly undesirable that criminal proceedings be conducted in closed court or with restrictions on publicity” (Meegan at [61]; Bond v The Queen (1992) 62 A Crim R 383 at 420 – 421 and Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 58), I was nevertheless satisfied that it was appropriate to make the non-publication order sought in the present case.
17․As outlined above, the accused agreed to participate in a reverse caution interview, in which it was anticipated that the accused would give evidence that would incriminate one of her former co-accused. I am satisfied that the administration of justice requires that the accused be free to participate in the reverse caution interview without any pressure from her former co-accused, or from any other person who may discourage the accused from providing information to prosecuting authorities.
18․Of course, as counsel for the accused acknowledged, it will be necessary for the reverse caution interview to be served on the former co-accused as soon as possible after the interview is given. The parties agreed that, once that occurs, there would appear to be no basis for the continuation of a non-publication order. For this reason, I directed the Crown to notify the Court once the reverse caution interview had been disclosed to the former co-accused, so that the Court may consider whether the non-publication order should be lifted.
Orders
19․For the above reasons, the following orders were made:
(1)I order that bail is to continue on present conditions.
(2)I continue the non-publication orders made on Tuesday, 14 November 2023, which are:
(a)Pursuant to s 111(1)(a) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), I forbid the publication of the name of the accused, or any other evidence or any other information that may identify her or connect her with the co-accused or these proceedings, until further order of the Court.
(b)I order the accused be referred to by the pseudonym “Casey Georgeson”, until further order of the Court.
(3)I direct the Commonwealth Director of Public Prosecutions to notify the Court upon any disclosure of the reverse caution interview to be conducted between [redacted] and the police or if there is to be any significant delay in the disclosure of that interview that the Director advise the court as soon as possible of that.
(4)I vacate the trial of [redacted] which is listed next Monday 20 November 2023.
(5)I list the matter in the Registrar’s List on Thursday 14 December at 9:00am.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker. Associate: Date: 28 November 2023 |
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