R v G
[2007] VSC 503
•14 November 2007
| “EDITED VERSION” | Do Not Send for Reporting | |
| IN THE SUPREME COURT OF VICTORIA | ||
AT MELBOURNE
CRIMINAL DIVISION
No. 1622 of 2007
| THE QUEEN |
| v |
| G |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 October 2007, 14 November 2007 | |
DATE OF RULING: | 14 November 2007 | |
CASE MAY BE CITED AS: | The Queen v G | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 503 [Edited Version] | |
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CRIMINAL LAW – Murder – Arraignment and plea hearing – Order for closed court – Non-publication order – Necessity – Unusual danger – Media heard but not given access to material relied upon at this stage.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Horgan SC and Mr A. Tinney | Office of Public Prosecutions |
| For the Accused | Mr D. Dann | McLennan (Chris) & Co |
HIS HONOUR:
On Thursday 11 October 2007, at the request of the Director of Public Prosecutions a matter was listed before me as [title deleted]. An indication was given to court staff that a suppression order would be applied for before the matter proceeded.
Mr Horgan SC and Mr Tinney of counsel appeared on behalf of the prosecution. Before the matter was called or any step was taken, Mr Horgan asked for an order closing the court so that he could make an application. He indicated that he could not make the application in open court. In the circumstances I acceded to his request and I closed the court. I indicated that counsel and solicitors for parties in the matter might remain as well as police officers, prison officers, protective service officers and court staff.
In closed court, Mr Horgan filed the document entitled “Confidential Affidavit of Ronald Iddles”, which had a court heading referring to Margaret Schultz, as the informant, and [name deleted], as the accused. Mr Dann of counsel announced an appearance on behalf of [name deleted].
In the confidential affidavit Mr Iddles swore that he is a Detective Senior Sergeant with the Victoria Police currently managing a homicide investigation known as Operation Briars. Operation Briars had been formed in April 2007 as a joint Victoria Police/Office of Police Integrity taskforce, for the purpose of investigating the murder of Shane Chartres-Abbott.
The affidavit stated that Shane Chartres-Abbott had been murdered on 4 June 2003 and that in November 2006 [name deleted] had been interviewed and had subsequently provided signed statements implicating himself and a number of other persons in that murder. Amongst the persons so implicated is a currently serving police officer and an ex-member of Victoria Police.
Mr Iddles affidavit contained the following passage:
[Extracts deleted]
Senior counsel for the prosecution said it was intended that [name deleted] be arraigned on the charge of murdering Shane Chartres-Abbott and submitted that it was necessary that that be done in closed court in order not to compromise the investigation, and so as to protect the safety of a number of person [references to persons and other matters deleted].
When the matter was initially called, a solicitor representing The Age newspaper, Mr Mukerjea, indicated that he wished to be heard. Having heard the application by senior counsel for the prosecution, which was supported by Mr Dann on behalf of [name deleted], in closed court, I stood the matter down until 2.15 p.m. indicating I would hear submissions from representatives of the media at that point. I also made an order prohibiting publication. A number of journalists and others had been present before the court was closed. I was concerned that they may have recognised [name deleted] and might publish the fact that he had appeared in court before the court was closed.
At 2.15 p.m. Mr Mukerjea attended court as did Mr Quill, a solicitor representing the Herald and Weekly Times Pty Ltd. Mr Mukerjea and Mr Quill were not able to make meaningful submissions in relation to the matter because they did not have Mr Iddles’ confidential affidavit and because what had occurred and been said thus far had taken place in closed court. They made general submissions as to the principles of open justice and also made the submission that they were not in a position to properly deal with the matter given that what had transpired had been in closed court.
At the end of their submissions I indicated that in the light of the material I had seen, and notwithstanding the validity of the submissions made by Mr Mukerjea and Mr Quill as far as they went, I was going to take the unusual course of dealing with the matter in closed court. I said at that time that any non-publication order would not be an unlimited one and that I would be asking the respective legal adviser to address their minds to how the media might be put into a position where they could properly address the suppression issues. I indicated that Mr Mukerjea and Mr Quill could advise their clients of what had occurred in their presence but that they should not reveal who the prisoner was if they had recognised him.
I observe at this point that the publicity surrounding the relevant subject matter at that time was not as extensive as has more recently been the case.
The matter then proceeded in closed court. [Name deleted] was arraigned on a charge of murder and pleaded guilty. I then heard a plea and adjourned the matter for sentence at a later date.
At the conclusion of the hearing I made an order that until sentence is passed or further order publication is prohibited of any report of this proceeding or of any information derived from it. I made some further directions in relation to documents and the title of the proceeding. I indicated that I would give reasons subsequently for the orders which I made. These are the reasons which I indicated that I would give.
Under s.18 of the Supreme Court Act 1986, the Court has power, in the circumstances mentioned in s.19, to order that the whole or any part of a proceeding be heard in closed court and to make an order prohibiting the publication of a report of the whole or any part of the proceeding or of any information derived from the proceeding. Amongst the circumstances specified in s.19 are where the court is of the opinion that it is necessary to do so in order not to prejudice the administration of justice or endanger the physical safety of any person.
The applicable principles are as follows:
1) It is of fundamental importance that courts operate openly. The unrestricted reporting of court proceedings is also most important. Under s.18 of the Supreme Court Act closing the court or prohibiting publication are steps which can be taken, but they can only be taken where it is necessary to do so by reason of one or more of the matters specified in s.19.
2) The test of necessity in s.18 and s.19 of the Supreme Court Act represents a bar which is very high and will be reached only in exceptional circumstances.[1]
[1]R v Pomeroy [2002] VSC 178, [11].
3) Closing the court is a more serious step than imposing restrictions on reporting.[2]
4) It is especially undesirable that criminal proceedings be heard in closed court.[3]
5) Generally, representatives of the media have a right to be heard and to make submissions in relation to orders suppressing or restricting publication of court proceedings.[4]
[2]Moularas v Nankervis [1985] VR 369, 378.
[3]Raybos Australia Pty Ltd & Anor v Jones (1985) 2 NSWLR 47, 58–59.
[4]The Age Company Limited v The Magistrates’ Court [2004] VSC 10.
Whilst it is an unusual and an undesirable thing to arraign an accused in closed court and to hear a plea in closed court, it is not unknown. Senior counsel for the prosecution referred to a number of recent cases where it had been necessary to proceed in that way.
Whilst media representatives generally have a right to be heard in relation to orders suppressing or restricting publication, that cannot mean that they must necessarily be admitted when the court is closed, or be informed of matters which transpire in closed court. Ordinarily, representatives of the media can and should be placed in a position where they can make submissions in relation to an application to close the court, but that will not always be the case.
Here, I determined that it was necessary to proceed in closed court and to prohibit publication. It was necessary, within the meaning of s.19 of the Supreme Court Act, to make orders under s.18 of that Act to close the court and to prohibit publication in order not to endanger the physical safety of [name and reference to others deleted], and in order not to prejudice the administration of justice. The reasons why I reached that conclusion as to necessity, and why I proceeded in the unusual way in which I did are as follows.
On the material before me, [name and reference to others deleted] were in personal danger. Given that the source of that danger was co-operation that [name deleted] had given the investigating police in matters of considerable public importance, it was necessary to minimise the risk to which both he and those close to him were exposed so far as was possible.
The nature of the risk to which they were exposed made this particular case one which was aptly described by senior counsel for the Crown as most extreme and most exceptional. The courts are sometimes required to deal with a situation where wide dissemination of some matter will prejudice the administration of justice because of its effect on a current or pending trial. In such a case an order preventing publication in the mass media is usually all that is necessary to meet that concern. The courts also sometimes have to deal with a situation where the dissemination of certain information to particular persons, fellow prisoners for example, will create a personal risk to a person. In such a case it may be necessary to suppress the publication of names or other information, or to use pseudonyms. The situation here raised concerns which went beyond those which arise in such cases. Here, the concern was that the mere knowledge that [name deleted] had been arraigned and had pleaded guilty to this particular murder, and had made statements, would create a significant risk to [name and reference to others deleted]. It would also prejudice the administration of justice in that it might well prompt action by those concerned to impede the investigation and might prompt [name deleted] to reconsider his cooperation.
It was important that the persons who might have taken this action could have learnt of the arraignment and the plea without reliance on reports in the media. The ordinary course of dealing with the matter in open court and suppressing publication would not have adequately addressed the necessity raised by the circumstances of the case as they were revealed by material before the Court on 11 October 2007.
Notwithstanding the most exceptional circumstances which did arise here, I would have directed that legal representatives of the media be permitted to read Mr Iddles’ confidential affidavit and be permitted to remain present during the arraignment and plea, on the giving of appropriate undertakings, were it not for the fact that a factor relevant to the risk was a recent press report which Mr Iddles swore had been detrimental to the investigation and had unnecessarily placed [name and reference to others deleted] in greater risk. When I canvassed the possibility of legal representatives for the media remaining present upon giving undertakings, both senior counsel for the Crown and counsel for [name deleted] referred to that recent article in support of a submission that that course ought not to be followed in this particular case. Mr Dann, on behalf of [name deleted], said:
"I know your Honour looks at it from a broader perspective, but from my client's perspective and from his instructions he is already particularly concerned that there has been material in the newspapers that has put his situation at risk. The fact that a large number of media representatives are present at Court today only heightens the concern in his mind. I acknowledge your Honour looks at it from a broader viewpoint, but in terms of his own situation I have put that proposal to him in terms of undertakings and so forth and his clear instructions are that he opposes it".
Given the position [name deleted] adopted on 11 October 2007, I determined that the Court must do everything it could to minimise the risk. A senior police officer had sworn that a press article had already detrimentally affected the investigation and increased the danger. In all the circumstances as they existed on 11 October 2007, I determined not to permit media representatives to remain in court, notwithstanding that undertakings were proffered, and I determined that they should not at that stage see the confidential affidavit of Mr Iddles.
I emphasised in the course of argument, and at the conclusion of the matter, that counsel for the prosecution and for the defence must address the issue of producing a situation where media representatives could make meaningful submissions about the future suppression of the matter on or before the date when the sentence is delivered.
Since the hearing on 11 October 2007, there has been further publicity surrounding the subject matter of the murder to which [name deleted] has pleaded guilty. Prompted in part by that publicity I arranged for the matter to be mentioned this morning. The existence of that publicity fortifies me in my view that counsel for the prosecution and for the defence must address the issue of putting relevant material into the possession of legal representatives of the media, upon the giving of an appropriate undertaking if necessary, so as to enable them to make meaningful submissions in relation to the future suppression of this matter.
Counsel for [name deleted] sought further time in which to obtain instructions, both as to that matter and as to whether in the circumstances the sentence should be delayed. I have determined to accede to that request and informed him the matter would be mentioned again upon his informing the Court he had the further instructions he was seeking. I then adjourned the matter sine die.
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