R v Condello
[2006] VSC 27
•7 February 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 1489 of 2004
| THE QUEEN |
| v |
| MARIO ROCCO CONDELLO |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30-31 JANUARY 2006 | |
DATE OF RULING: | 7 FEBRUARY 2006 | |
CASE MAY BE CITED AS: | R v CONDELLO (RULING 2) | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 27 | |
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Application for suppression of publication of the contents of memoranda of understanding entered into with protected witness – Asserted risk to the administration of justice – Matter to be balanced - Partial order for suppression granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elston SC with Ms M. Tittensor | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr R. Richter QC with Mr J. Dickinson | Slades & Parsons |
| For the Chief Commissioner of Police | Mr R. Gipp | Solicitor for the Chief Commissioner of Police |
| For The Herald & Weekly Times Pty Ltd | Mr J. Quill of Corrs Chambers Westgarth |
HIS HONOUR:
On 30 January 2006 the Chief Commissioner of Police made application for orders for suppression of the publication of the contents of a memorandum of understanding ("MOU") between protected witness 166 and Acting Superintendent Geoffrey Alway dated 26 April 2005, and of a further MOU between the partner of 166 and the Acting Superintendent also made on the same date.
On 31 January 2006 that application was varied to seek suppression of the publication of "any matters in respect of the welfare of 166 and his partner addressed in the (memoranda)".
The application is supported by an affidavit sworn by Commander Hart of the Victoria Police. He deposes that he is the officer in charge of the Special Support Department which includes the Protective Security Division and the Witness Security Unit. He says further that he has 36 years experience in the police force and I accept that he is a police officer of substantial expertise with respect to matters of witness protection.
He deposes that copies of the memoranda have been provided to defence counsel in response to a subpoena. Provisions of the memoranda relating to the protection of the protected witness and partner have been deleted as have references to their identity.
This response is not challenged on behalf of the accused. It reflects the scheme of s.10(5) of the Witness Protection Act 1991 which provides:
"A person must not, without lawful authority, disclose information in Victoria or elsewhere –
(a)about the identity or location of a person who is or has been a participant; or
(b)that compromises the security of such a person."
The Victoria Police accept that the defence has a legitimate forensic purpose in production of those parts of the memoranda relating to the welfare of the witness and his partner. In particular, the police accept that such provisions may form a proper basis for questions going to the credit of the witness.
Nevertheless, the police oppose publication of the contents of the memoranda. Commander Hart states:
“They are treated as highly protected because they are agreements consequent upon the profound decision of an individual to enter into the witness protection programme and reflect the unique arrangements for the protection and welfare of that individual during the duration of their participation in the programme which in some cases can be for life.”
Mr Quill, who appears for The Herald & Weekly Times Pty Ltd does not oppose a suppression order with respect to publication of the memoranda as such. In my view such an order is justified by s.19 of the Supreme Court Act 1986 on the basis that it is necessary in order not to prejudice the administration of justice and not to endanger the physical safety of the witness and his partner.
An affidavit has been filed in the proceeding deposing to the risk of harm to 166 and his partner and I am satisfied that that risk is such as to justify suppression of publication of the memoranda which effectively charter the framework within which it is proposed to protect them. Further, I am satisfied that a failure to so suppress the memoranda may have serious consequences with respect to the co-operation of 166 in proceedings beyond those before me.
The matter does not however end here. Counsel for the Commissioner elaborated the scope of the initial application made to extend the ambit of the suppression order sought to publication of any matters stated in this trial in respect of the welfare (but not protection) of 166 and partner arising out of or under the memoranda.
Such an order was opposed by both the counsel for the accused and the solicitor for The Herald & Weekly Times Pty Ltd.
The application is made on the basis that public disclosure of the benefits derived under the memoranda would facilitate 'unfavourable' comparisons between participants in the protected witness programme as to the relevant merits of their respective memoranda of understanding. In turn it is said that this would have the consequences set out in [11] of Commander Hart’s affidavit (noting that this relates generally to publication of the details of a given participant’s MOU including as I understand it matters of protection):
"The first consequence is that it would add to the heavy emotional toll that participants already carry by the fact of their participation in the programme. Secondly, it would undermine the administration of the Witness Protection Programme by participants not co-operating with the programme and or making demands on the programme which the programme cannot meet. Thirdly, participants may decide or threaten to leave the programme and thereby undermine their personal security and that of their families. Fourthly the departure or threatened departure of a participant from the programme risks the effective preparation and prosecution of cases presently before the court and future cases. This arises either because the protected witness flees the jurisdiction or the witness is harmed by those who have an interest in silencing the protected witness."
It is also said that the Victoria Police cannot enter into public debate concerning the contents of such memoranda and this gives rise to a risk of unfair reporting if publication of their contents is not comprehensively suppressed.
It is apparent that the key witness in the trial before me is 166. It is also apparent that a central basis for an attack upon his credit at the trial will be the receipt by him of substantial benefits for his co-operation with police.
If the publication of such matters is suppressed then neither the real basis of the defence will be disclosed to the public, nor the true character of the evidence upon which the accused will be judged and the jury reach its verdict. As the Court of Appeal observed in Re Applications by Chief Commissioner of Police (Vic) for leave to appeal[1]:
"An extraordinary situation could arise in which an individual might be in contempt of the court by disclosing the basis of his or her acquittal. The community would be aware that some such evidence existed but be prohibited from knowledge of its defects."
[1](2004) 9 VR 275 at 290.
It is apparent (for reasons which I address in a separate ruling) that the proceeding generally should be subject to a suppression order at least for the time being of matters which identify or tend to identify the protected witness.
If such an order is made it appears to me that the critical consideration is whether an expanded order of the type sought with respect to aspects of the subject matter of the memoranda is necessary in the interests of the administration of justice.
I do not accept as was submitted to me that I should intervene in the inherent jurisdiction of the Court if the criteria set out in s.19 of the Supreme Court Act 1986 are not met. Putting to one side doubts as to the potential extent of the Court’s inherent powers[2], Parliament has clearly stated the criteria which it intends to be applied to situations such as the present and in my opinion such powers were intended to amplify the Courts inherent powers.[3]
[2]Above at 288.
[3]Cf. Commonwealth Trading Bank v Inglis [1974] 131 CLR 311 at 318
I turn then to the facts. In my view the proposed publication is unlikely to result in the departure of the witness from the programme. The benefits in issue will be put to him in open court in cross-examination. Those matters will not be matters concerned with his protection. Moreover, as I understand it the thrust of the cross-examination will be that the benefits are generous and not in any sense illusory. Their further publication can hardly be of concern to the witness unless such publication somehow tends to identify him.
Further I do not accept that the publication of benefits agreed to in the particular circumstances of this protected witness, can be said to give rise to any real prospect of causing other protected witnesses in different circumstances to leave the programme thereby prejudicing other proceedings. In my view the risk in this respect is entirely speculative and inherently improbable. As I understand the circumstances in which 166 entered the programme they can fairly be said to be unique.
I am accordingly not satisfied that the risks upon which the relevant application is based are substantial.
Moreover, I am not persuaded that the discretion granted by s.19 should necessarily be exercised in the present case even if the risks identified were accepted as real. As the Court of Appeal stated in Re Applications by Chief Commissioner of Police (Vic) for leave to appeal[4]:
"The principle of open justice is deeply entrenched in our law. It rests upon a legitimate concern that, if the operations of the courts are not on public view as far as possible, the administration of justice may be corrupted. A court is “open” when, at the least, members of the public have a right of admission. From this it may be thought ordinarily to follow that the media, in their various forms, are also entitled to communicate 'to the whole public what that public has a right to hear and see.'" (Citations omitted.)
[4]Above at 286
Further, as the Court of Appeal continued after referring to authority articulating the relevant common law principles[5]:
"Little consideration is required to appreciate that this concept of openness applies with particular force to the conduct of criminal trials and the evidence upon which convictions are based. The manner in which that evidence comes into existence and the procedures followed by investigative agencies are themselves matters of considerable public importance. Accordingly, with very few limitations, they have always been exposed to public scrutiny. In each of the circumstances in which the public disclosure of any part of our criminal justice processes has been prohibited, other powerful public policy considerations have militated in this direction. The identities of informers or undercover operatives are normally protected, for example. However, that protection must give way where the fairness of the trial itself is compromised. As Brooking J stated in a case relating to undercover operatives, Jarvie v The Magistrates’ Court of Victoria at Brunswick: “No-one would doubt that identity must be disclosed if to refuse to do so would occasion a miscarriage of justice.” Special statutory regimes apply to victims of certain offences, young persons, to family law matters, to the obtaining of certain warrants and to aspects of the activities of certain investigative bodies. On occasions an order may be made for the suppression of the evidence adduced in a particular trial to avoid injustice in some related proceeding, but it is normally of limited duration and operates until the related matter has been finalised. Usually, at the trial level, such orders are made to avoid the public disclosure of the identity of the individuals to avoid exposure to danger and, very occasionally, to prevent public embarrassment. This may result in some cases in the suppression of part of the evidence which carries the potential to identify the protected person, but that is not the underlying purpose for the order. We are unaware of any situation in which an order of the kind desired here has either been sought or granted."
(Citations omitted)
[5]Above at 287-8
It was submitted at one point by Mr Quill that satisfaction of the requirements of s.19(c) for the purpose of the exercise of the discretion to make a suppression order, did not require a balancing exercise. I do not accept this is so but the balance in issue in this case does not assist the Commissioner for Police. The administration of justice is potentially prejudiced by the making of a suppression order which prohibits the publication of any aspect of court proceedings. It follows that it is necessary for an applicant to establish some net prejudice which outweighs this factor before the Court can be satisfied an order should be made.[6] In the present case however the expanded suppression order sought would go not merely to some incidental aspect of the case but to evidence central to a fair assessment of it. Accordingly the prejudice to the principle of open justice would be substantial. Conversely the matters of prejudice relied on with respect to witness protection are speculative and as I have said unpersuasive.
[6]Cf. Sankey v Whitlam (1978) 142 CLR 1 per Gibbs ACJ at 38, Stephen J at 56-60, and Mason J at 98 concerning conflicting aspects of the public interest, with respect to a claim of public interest immunity.
The factors on which the Commissioner relies are not such as to outweigh the primary importance of the public interest in free reporting of a criminal trial and necessitate the order sought to avoid prejudice to the administration of justice.
Accordingly, I propose to make only a limited suppression order with respect to the publication in print or electronically of the contents of the memoranda save as referred to in evidence admitted in the trial.
It is implicit in my conclusions that I do not accept that it is proper to suppress publication of a proceeding on the basis that aspects of the evidence may be misreported.
Conversely I do not believe the public interest in the integrity of financial aspects of the Witness Protection Scheme is a primary consideration.
It is also unnecessary to consider Mr Quill’s submission as to the potential ambit of the phrase "prejudice to the administration of justice".[7]
[7]As to which see the observations of Beach J in TheHerald & Weekly Times Pty Ltd v Magistrates' Court of Victoria [1999] 2 VR 672 at 677
I will therefore order that:
Pursuant to s.18(1)(c) of the Supreme Court Act 1986 publication in print or electronically be prohibited of the contents of the following documents until further order save as referred to in the course of evidence in this trial:
(a) the Memorandum of Understanding between 166 and Acting Superintendent Geoffrey Alway, dated 26 April 2005; and
(b) the Memorandum of Understanding between the partner of 166 and Acting Superintendent Geoffrey Alway, dated 26 April 2005.
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