R v Garde-Wilson

[2005] VSC 446

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8744 of 2005

THE QUEEN (ON THE APPLICATION OF THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA)	Applicant
v
ZARAH GARDE-WILSON	Respondent

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 NOVEMBER 2005
DATE OF RULING:	9 NOVEMBER 2005
CASE MAY BE CITED AS:	R v GARDE-WILSON
MEDIUM NEUTRAL CITATION:	[2005] VSC 446

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SUPPRESSION ORDER – Application to lift or vary existing suppression order – Applicable considerations - Possible prejudice in a current criminal trial.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J. McArdle QC	Stephen Carisbrooke, Acting Solicitor for Public Prosecutions
For The Age Company Ltd	Mr S. Mukerjea	Minter Ellison
For the Herald & Weekly Times, Nine Network and Channel Seven	Ms R. Enbom	Corrs Chambers Westgarth
For Accused Williams	Mr S. Grant	Garde Wilson & Caine

HIS HONOUR:

1. On 10 October 2005 I made an order in this matter prohibiting until further order any publication whether by print, electronic media or otherwise of the facts of this proceeding or the identity of any party to it.  I also made an order at the same time that there be liberty to any representative of the media to apply at any time to have this order lifted or varied.

1. The proceedings instituted by the Director of Public Prosecutions in the name of the Crown were for an order that the respondent be adjudged guilty of contempt of court.  I gave judgment on that application this morning.  I then heard submissions from representatives of the media seeking an order that my order of 10 October be lifted or, failing that, modified.  I was informed that the media would be content with an order forbidding the publication of any reference to the respondent's position as solicitor for the accused in the current trial of Carl Williams; otherwise, it was submitted that I could not be satisfied that any restriction on publication would be in the public interest and that unless I were so satisfied, publication must be allowed.

1. I also heard submissions from counsel for Mr Williams, and from Mr McArdle QC who appeared to prosecute in this proceeding (but who is not involved in the Williams trial).  Mr Grant, for Mr Williams, submitted that his client would be severely prejudiced were the jury in that trial to know that the accused’s solicitor had been convicted of a contempt for failing to answer questions in another trial which at several points has connections with the trial with which Mr Grant is concerned.     The prejudice would be magnified, he argued, by the circumstance that a previous solicitor for Mr Williams had been called as a witness at that trial and had, in cross-examination, been extensively challenged on matters going to his credit.  Were the jury to form the opinion that those who acted and formerly acted for Mr Williams were persons of bad character, their minds might be unfairly poisoned against him.

1. It was also urged upon me that the Williams trial is drawing to a close and that a delay of a few days or even a week or so would not affect the newsworthiness of reports of the proceedings before me. 

1. I have taken into account all the submissions put to me this morning.  I am very conscious of the imperative that the court be open to scrutiny.  Although in this case the entire proceedings will in due course be so open, I am also conscious of the importance of contemporaneity in the release of news.

1. The prejudice of which Mr Grant spoke is difficult to measure.  There is no necessary connection between the criminality of a legal adviser and the criminality of her or his client. Nevertheless, humans are prone to assume guilt by association.  It is impossible to say that the jury in Mr Williams case would not be influenced adversely by publicity surrounding the accused's solicitor.  Of course the presiding judge in that case, Justice King, could give the jury an appropriate warning; but before she did, she would necessarily have to hear submissions from counsel about the seriousness of the potential prejudice and the extent of any consequential directions.  That would in itself raise matters of difficulty.

1. Her Honour is expected to commence her charge to the jury this afternoon.  A distraction while she deals with the effect on Mr Williams’ trial of the publicity given to this proceeding would, at this very delicate time, be most unfortunate.  There is also the consideration that the jury in the Williams trial is likely to retire on Friday this week to consider its verdict.  The plea in the present proceeding has been fixed for Thursday next week.  The public interest in this case will accordingly be as high then as it is now.  In those circumstances the news will lose none of its freshness if publicity is delayed until after the verdict in the Williams case.

1. I have considered whether I should allow publication of this proceeding, save for any reference to the respondent as solicitor for Mr Williams.  The problem with that course is that the jury in that case may already known her name although, as I understand it, her name has not been mentioned during the course of the trial.  In any event pictures of her would immediately make her identity known to the jury.

1. I could of course require the media to refrain from publishing any photographs or other pictures of the respondent to this proceeding in any report of this proceeding.  An application to this effect was not made to me by the media this morning, and in event I can understand the press wishing to accompany any story with appropriate depictions of the person about whom the story is concerned. That of course applies particularly to the televised media.

1. I was asked to consider whether I should prohibit the publication of the name of the respondent but otherwise allow publication of this proceeding.  That again was not an application made by the media and it seems to me that publication of a story without any identification of the person about whom it is told, would not be of great interest to the public or, therefore, to the media.

1. In all of those circumstances it seems to me that the appropriate course for me to take is to extend the prohibition on publication of these proceedings until after the jury returns its verdict in the trial of Carl Williams.  Unless circumstances change very drastically between now and then I would anticipate that without more, the suppression order will be lifted and these proceedings can then be publicised in their entirety.  I mean by that, that I do not require the media to attend unless there is any question about a continuation of the suppression order beyond the announcement of a verdict in the Williams case.  If there is any suggestion that there should be continued suppression I will inform the media and allow them of course to be represented and make submissions. Failing any suggestion of that kind, I will lift the suppression order without the necessity of a further hearing; and my Associate or the court's media liaison officer would inform the press accordingly.

1. Perhaps I should add that although the reasons for my judgment this morning were issued with a "not restricted" note on them, what I just said of course takes precedence over that note.

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