R v Eastman (No 42)
[2018] ACTSC 176
•1 June 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 42) |
Citation: | [2018] ACTSC 176 |
Hearing Date: | 1 June 2018 |
DecisionDate: | 1 June 2018 |
Before: | Kellam AJ |
Decision: | Until further order there be no publication in the ACT of any image made, or photograph taken, of David Harold Eastman prior to 1 January 2016. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application by accused for an order for non-publication of image – balancing the desirability of open justice with the accused’s right to a fair trial – any order restricting publication made in exercise of the court’s inherent power should only be made if necessary and should be restricted to meet the concerns to be addressed whilst preserving the principle of open justice |
Cases Cited: | Eastman v The Queen (1997) 76 FCR 9 Eastman v DPP (ACT) (No 2) [2014] ACTSCFC 2; 9 ACTLR 178 John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 R v Abbas (Unreported, Supreme Court of Victoria, Beale J, 18 December 2017) |
Texts Cited: | Report of the Board of Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester (29 May 2014) |
Parties: | David Harold Eastman (Applicant) The Queen (Respondent) Federal Capital Press of Australia Pty Ltd (First Intervener) Nationwide News Pty Ltd (Second Intervener) Nine Network Australia Pty Ltd (Third Intervener) Australian Broadcasting Corporation (Fourth Intervener) |
Representation: | Counsel Mr G Georgiou SC, Mr M Stanton and Ms L Line (Applicant) Mr M Thangaraj SC, Ms M Campbell and Mr K Lee (Respondent) Ms A Spies (First, Second, Third and Fourth Interveners) |
| Solicitors Legal Aid ACT (Applicant) ACT Director of Public Prosecutions (Respondent) Federal Capital Press of Australia Pty Ltd (First Intervener) Nationwide News Pty Ltd (Second Intervener) Nine Network Australia Pty Ltd (Third Intervener) Australian Broadcasting Corporation (Fourth Intervener) | |
File Number(s): | SCC 111 of 1992 |
Kellam AJ:
I have before me an application made on behalf of the accused for an order suppressing publication of any image of the accused at his retrial. The precise order sought is that there be no publication of any facial image of the accused in any publication in Australia. The principal basis of the application is that the publication of any image of the accused may lead to a deterioration in his mental state and impact upon the orderly running of the trial. In addition, there are concerns that the publication of such images may interfere with the identification evidence to be given by a number of witnesses in the course of the trial, and in particular by reason of possible displacement. These submissions are made pursuant to the court’s inherent power to make orders that limit the principle of open justice.
The application is opposed by the prosecution and by a number of media interveners, being Federal Capital Press of Australia Pty Ltd, Nationwide News Pty Limited, Nine Network Australia Pty Ltd and the Australian Broadcasting Corporation, for whom Ms Spies appears.
Reliance is had by the defence upon the fact that the 1995 trial was described as ‘chaotic’ by the Full Court upon appeal. (See Eastman v The Queen [1997] 76 FCR 9 (at [32]). Also upon the conclusions of Martin AJ in the course of his report that, amongst other circumstances, the paranoid personality of the accused and the suspicions of the accused, ‘undoubtedly played a role’ in his repeatedly dismissing his legal team. It should be observed that what Martin AJ said was he considered that there was a combination of circumstances and reasons which led to the applicant repeatedly sacking his legal teams. As submitted, Martin AJ said (at [117]):
The applicant’s paranoid personality and suspicions undoubtedly played a role.
He went on to say:
However, the narcissistic element of the applicant’s personality and his desire to maintain control over the conduct of his legal representatives, as well as his desire to manipulate the course of the trial and to avoid the trial coming to a conclusion, also played a significant role in the applicant’s motivation for his conduct.
The Full Court (in Eastman v DPP (ACT) (No 2) [2014] ACTSCFC 2; ACTLR 178 at [293]) noted these matters, saying that:
Mr Eastman repeatedly terminated the services of his lawyers during his trial and cynically sought to manipulate the trial process.
Furthermore, reliance is had, by the accused, upon the report of Dr Brereton, a clinical psychiatrist who, in his report dated 21 May 2018, stated (at [2.3]):
…. publicity arising from the forthcoming trial is very likely to result in a deterioration in Mr Eastman's presentation.
He expressed the view (at [2.5]) that the:
…. maladaptive personality traits are ingrained, and it is highly likely these traits will become more prominent as a result of publicity.
It should be noted that Dr Brereton was referring to publicity in general and did not specifically identify the publication of the image of the accused as a particular stressor upon him, although obviously, as Mr Georgiou submits, the publication of an image is a component of publicity.
It is argued, on behalf of the accused, that the chaos and disrespect of the court’s processes, shown at the 1995 trial, tended to undermine the reputation of justice in the ACT. It is further argued that as the accused has a diagnosable psychiatric condition, he should be accommodated to a reasonable extent, just as an accused with a physical health condition might be accommodated. In my view, the provision of appropriate arrangements for a wheelchair bound person, or a blind or deaf person, by the provision of proper assistance and facilities is a vastly different thing than making a suppression order which limits the principles of open justice.
However, it is further argued that, as identity evidence is an issue in the trial, publication of any image of the accused might impact adversely upon the accused with respect to those witnesses whose purported identification of him will be in issue in the course of the trial.
Mr Georgiou, points out that at an early stage in the first trial, in 1995, the then trial judge, Carruthers J, made an order that ‘no likeness in any form, of the accused, is to be reproduced in the media during the course of this trial’. At that time, the then prosecutor agreed that such an order was appropriate. It might be observed in passing, as submitted by Ms Spies, who appears for the media interests, that such an order being made did nothing to prevent the chaos to which the counsel for the accused referred in his submissions before me.
However, of more significance is the question of whether publication of photographs or images of the accused now would raise the same concerns which the trial judge clearly had in terms of the risk of tainting of identification evidence over eighteen years ago. The evidence of identification of the accused is to be given by a number of witnesses and relates to a period of time when the accused was nearly 30 years younger than he is now.
There can be no doubt that the principle of open justice and the right of the media to make public what is happening at court is a fundamental rule of the common law. As McHugh JA explained, in John Fairfax and Sons Ltd v PoliceTribunal of New South Wales (1986) 5 NSWLR 465 at 476 - 477:
The fundamental rule of the common law is that the administration of justice must take place in an open court. A court can only depart from this rule, where its observance would frustrate the administration of justice or some other public interest, for whose protection parliament has modified the open justice rule. The principle of open justice also requires 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.
Of course, in the present circumstances, the accused does not seek any restriction on the publication of his name, or of the evidence to be heard in the case, or of anything that takes place in the course of the hearing. And so the application differs quite significantly from many that have been made to courts in the past. Essentially, it seems to me, the relevant principles come to this, first, that the court has power to protect its own processes, primarily that of a fair trial and to ensure that accused persons are given a fair trial and that they are seen to be given a fair trial. That is, in the interests of accused persons, in the interests of the prosecution and in the interests of the court process, and in the interests of the public at large. That is a fundamental and powerful function of court process which will be activated if there is a real risk of serious interference with the administration of justice. Secondly, the court will not interfere with matters of legitimate public concern or legitimate public discussion and the court will not stifle that public discussion and will not muzzle the media in the fulfilment of that public discussion, subject to the avoidance of the risk of serious interference with the administration of justice.
I recognise that the order sought falls a long way short of a suppression order which would prevent the media from fully reporting what will take place in the course of the hearing and is limited to images of the accused which may have been taken in the past and may be taken at the present time and in the future. It would nevertheless be a curtailment of the freedom of the media to fully report the trial process. Accordingly, I must ask myself if such an order is really necessary to protect the administration of justice. Put another way, is there a real risk of serious interference with the administration of justice which requires the order sought to be made.
I observe that Dr Brereton did not identify the publication of images of the accused as a specific source of stress for the accused. Rather, Dr Brereton expressed the opinion that he believed publicity arising from the forthcoming trial had a likelihood of resulting in a deterioration in the presentation of the accused. I accept that such publicity may well cause stress for the accused. Dr Brereton, in his report, conceded that any individual would suffer stress as the result of publicity surrounding a trial such as this, although he considered that the accused was specifically more likely to do so.
To my mind, the isolation of the publication of images of the accused, as a stressor to him, ignores the stress of other factors, such as the fact that the accused is facing a long trial, for the second time, on a serious charge. That no doubt will be stressful for him, as it would be for others. However, granting the order sought would not relieve him of that stress, nor would it relieve him of the stress created by such appropriate publicity as might be given to the evidence before the court as the trial progresses. Further, I observe that Dr Brereton opines that the accused will be facing these stresses from a position of greater stability than in the past. It is not without relevance, in my view, that the accused is now represented by a team of highly professional and competent counsel to provide support to him.
I consider that there is weight in the submission of Ms Spies that the submissions on behalf of the accused appear to have conflated a disrupted trial, which is of course, as she submits, highly undesirable, with an unfair trial. In the written submissions put before me on behalf of the accused, it was stated that it would be unfortunate if the fairness of his trial were impacted because of an unnecessary exacerbation of his psychiatric condition. There was, however, no identification of what it is about his psychiatric condition, which would cause the absence of a fair trial. The court, as submitted by Ms Spies, regularly deals with trials of persons who have psychiatric conditions and there are trial management means available to minimise the effect of that disruption.
Accordingly, I do not consider that the evidence of the psychiatric condition of the applicant, by itself, is sufficient to find that there is a likelihood that the administration of justice will be prejudiced and that there will be a risk thereby that the accused will not have a fair trial.
However, I return to the question of whether or not the publication of a photograph, or other image of the accused, may have a tendency to interfere substantially with a fair trial. Clearly, the view of the trial judge, eighteen years ago, was that the publication of photographs of the accused, in the course of the trial, did carry such a risk. Mr Georgiou informed me this morning that in the course of the trial, at least six witnesses, who have previously given evidence about identification, will be called to give evidence again. One witness, who did not give evidence previously, will be called to give evidence what might, at least, be called similarity evidence, although I do not understand him to be giving evidence that he specifically identified the accused. Ms Hocking, who appeared for the prosecution, has stated that the prosecution will be relying on past identification made by the witnesses and, not surprisingly, no evidence of identification in the court.
Ms Spies argued that the accused had been the subject of wide publicity in the past. She argues that there has, over the last twenty years, been extensive publication of photographs of the accused. Although no evidence was put before me as to the particular extent of that publicity, I expect that that submission is from, what I know about this trial, common ground as between the parties. Ms Spies submits that in such circumstances, the case is to be distinguished from those cases in which the publication of an image of a defendant would be contempt of court. In the present case, she argues that given the extensive publication of photographs of the defendant, in connection with this proceeding, over a period of twenty years, it cannot be likely that the publication has a tendency to prejudice a fair trial. She argues that any identification witnesses are likely to have already seen multiple photographs and that there is no evidence to the contrary.
As she submits, this is a most unusual case. However, the concerns of Carruthers J in 1995 were clearly based upon his concerns that photographs of the accused, at that time, when identification evidence was to play a major part in the trial, created a risk to the fair trial of the accused, substantially, no doubt, by reasons of the displacement effect. Once again, in this trial, identification evidence is to play a major part in the case against the accused. I do not consider that any recent or current photographs of the accused, who is now a septuagenarian, could be seriously said to create any risk to a fair trial. However, that is not to say that historical photographs of the accused taken during the period of the arrest and trial of the accused, if published now, will not have the capacity to affect the evidence of the witnesses who are yet to be called. Whilst Ms Spies speculates that some of those witnesses may have seen photographs over the journey of the last twenty years, in my mind there is nothing persuasive about that speculation. On the other hand, as Ms Spies, in effect submits, the genie is out of the bottle by reason of the extensive publicity given to this case in the past.
However, on balance, it appears to me that an order that there be no publication during the trial of any image of the accused made or photographed prior to 2016, that is a period of twenty years after the trial, is not onerous upon the media and can be well managed by them, and at the same time, so far as is possible in all of the circumstances before me, meets the risk of renewed issues of displacement relevant to the witnesses who are yet to be called to give evidence of identification, such identification that is being made by them now, relating to nearly thirty years ago.
I accept the submission of Ms Spies that an order must not do more than is necessary to enable the court to act effectively within its jurisdiction. Mr Georgiou in oral argument referred to a Victorian Supreme Court case, R v Abbas (Unreported, Supreme Court of Victoria, Beale J, 18 December 2017) where Beale J made an Australia‑wide order. However, as I pointed out in the course of oral argument, the power of a Supreme Court exercising jurisdiction under a Commonwealth Act in an action brought by the Commonwealth DPP appears to me to be a different thing altogether than me exercising the jurisdiction of this court in the Australian Capital Territory.
I observe also the matters raised by Ms Spies as to the unresolved question as to the extent of the inherent power of the court to make a non-publication order that binds the world. Whilst it is so that that question is unresolved, I consider that there is little doubt that there is an inherent power to make such an order, as I propose, that binds the parties to this application and, in particular, the media parties whom Ms Spies represents. I might add, other media entities should consider the consequences which may flow if they determine to publish the material in question with knowledge of this order having been made.
I should state at this time that I have in the past made orders in this proceedings that, until further order, there be no publication of submissions, evidence or rulings made in pre-trial hearings other than to the parties. As stated in the course of this morning's argument, the publication of the submissions heard today and the evidence of Dr Brereton in circumstances whereby a jury panel of over 400 people has been summoned to attend on the next court sitting day, could amount to a serious contempt, and although I have made orders in the past, I consider it appropriate to make specific orders now.
Accordingly, the orders I propose to make are:
(a)First, that until further order there be no publication in the ACT of any image made, or photograph taken, of David Harold Eastman prior to 1 January 2016.
(b)Secondly, that until further order there be no publication other than to the parties to this application and their legal representatives of the fact of this application, the submissions made in the course of it or of the report of Dr William Brereton dated 21 May 2018.
It is perhaps appropriate to add this, I have no reason to doubt that the Canberra media will, as they have regularly done in the past, ensure that their activities do not cause interference or difficulties for the access into and from the court for the accused, the parties, witnesses, jurors and indeed other users of the court involved in other cases. An additional factor for those people at the moment are the difficulties with this highly inadequate building and, of course, the difficulties created by construction works. I understand that the usual practice is that cameras and electronic equipment stay on the opposite footpath to the court entrance. I am confident that the media will understand why that practice should prevail in this case.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kellam AJ. Associate: Date: 14 June 2018 |
0
2
0