R v JP

[2008] VSC 86

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1622 of 2007

THE QUEEN

v

JP

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 6 March 2008
DATE OF RULING:	26 March 2008
CASE MAY BE CITED AS:	R v JP
MEDIUM NEUTRAL CITATION:	[2008] VSC 86

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CRIMINAL LAW – Sentence - Murder – Section 10(5) of the Witness Protection Act 1991 – Whether a non-publication order necessary to avoid prejudicing the administration of justice.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Horgan SC and Mr A. Tinney	Office of Public Prosecutions
For JP	Mr D. Dann	McLennan (Chris) & Co
For The Age	Corrs Chambers Westgarth
For HWT	Minter Ellison

HIS HONOUR:

1. On 11 October 2007 the defendant in this matter was arraigned before me and pleaded guilty to a charge of murder.  I then heard a plea on his behalf.

1. For reasons which I gave on 14 November 2007, the matter was heard in closed court and orders were made prohibiting publication until the sentence or further order.

1. Solicitors for two media organisations who had expressed the wish to make submissions were given the opportunity to read the relevant material, including my 14 November 2007 reasons.  This occurred after the matter was mentioned before me on 30 January 2008.  Undertakings were given by the two solicitors concerned. 

1. The matter was mentioned again on 4 March 2008.  On that day senior counsel for the Crown indicated that orders were no longer required in order to protect the efficacy and integrity of police investigations.  Senior counsel for the Crown said that the Crown nevertheless supported the prisoner's position that non publication orders should be made in relation to the sentence, and extending beyond the sentence.

1. The orders were said to be necessary to protect the personal safety of the prisoner and his family, and because of the effect of the Witness Protection Act 1991, and in particular s.10(5) of that Act. Counsel for the prisoner indicated that the prisoner's primary position was that there should be an indefinite prohibition on the publication of any report of the proceeding, and that his alternative position was that there should be no publication of the prisoner's name or of any identifying information.

1. The two solicitors who had read my reasons for the orders which I made in 2007, and who had also read the material which had been relied on in relation to those orders, were Mr Quill from Corrs Chambers Westgarth representing the Herald & Weekly Times Pty Ltd, and Ms Cooper from Minter Ellison representing The Age Company Limited.  On 4 March 2008 they indicated that they wished to make submissions in opposition to any further orders prohibiting publication.  They did not seek vacation or variation of the existing orders.  I said I would hear those submissions on 6 March 2008.

1. On 6 March 2008 I heard further submissions.  The prisoner was present on that occasion by video link.  In addition to the submissions made by his counsel the prisoner addressed the court himself.  On 6 March 2008 senior counsel for the Crown repeated the submissions he had made on 4 March 2008.  Counsel for the prisoner emphasised the significant risk to which the prisoner was exposed, and emphasised the risk to members of his family.

1. The solicitors for the two media organisations relied upon a short affidavit which had been filed by a solicitor at Corrs Chambers Westgarth exhibiting copies of newspaper articles published in The Age newspaper on 14 September 2007 and 15 September 2007, the transcript of a public hearing pursuant to s.86PA of the Police Regulation Act 1958 held on 15 November 2007, a copy of a report entitled “Exposing Corruption within Senior Levels of Victoria Police” dated February 2008, and a bundle of media articles from searches of Australian daily newspapers.

1. The submission they made was that the sentence should not be the subject of a non-publication order as much, if not all of the matters that would be canvassed in the sentence were matters that had already been revealed in newspapers, or in public hearings, or in the report of the Office of Police Integrity.  They also submitted that the risk to this prisoner is no different to the risk faced by other prisoners who give evidence on behalf of the Crown.  Amongst other authorities, they relied on the decisions in R v. Pomeroy[1] and R v. White[2].  In relation to the effect of the Witness Protection Act they submitted that if the statutory prohibition on publication under that Act applied there was no warrant for an order under ss.18 and 19 of the Supreme Court Act 1981. 

   [1][2002] VSC 178.

   [2][2007] VSC 471.

1. When the prisoner addressed the court he placed considerable emphasis on his fears for his family, including his extended family, and upon his reliance on the anonymity which he thought he would be given as a consequence of the Witness Protection Act.

1. The purpose of the Witness Protection Act is expressed in s.1 to be “to facilitate the security of persons who are … witnesses in criminal proceedings."

1. Under the provisions of the Act a program called the "Victorian witness protection program" is established.  Under this program actions may be taken to allow a witness, or a family member of a witness to establish a new identity (s.3A).  Amongst other things, this may include making new entries in the register of births or the register of marriages (s.4).

1. There are provisions of the Act which refer to both a "new identity" (see ss.5.2(d), 5.2(i), 10(2), 15(a), 19(i)(a), 19(8)(b), 23(1) and 23(2) and also to a "former identity" (see ss.3C, 10(2), 19 and 20). There are also provisions which simply refer to "identity" (see ss.10(5), 10(6), 15(b)(ii), 24(a)(i)) and s.10(5) is one of those.

1. Section 10(1) prohibits the disclosure of entries made in registers under the Act.  Section 10(2) exempts the Chief Commissioner and other approved persons from that prohibition in certain circumstances.  Section 10(3) prohibits witnesses and family members from disclosing specified matters, and s.10(4) provides that that prohibition does not apply in certain circumstances. 

1. Section 10.5 then 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."

1. The prisoner is a participant and has been since 16 February 2007. 

1. The noteworthy feature of s.10(5) is its apparent width. It seems to me that the concept of an identity is a very broad one. A person's identity is not just their name, it also includes the features of that person which enable that person to be differentiated from others. Thus, information about a person's character, physical features, activities, and a myriad of other matters that relate to them, could, in a given context, be information about the person's identity.

1. Information which s.10(5) says cannot be published is information about the identity of a person who is, or has been, a participant. It seems to me that there must be some connection between the information in question and the person's status as a participant before s.10(5) applies.

1. Whilst each individual case would need to be assessed by reference to the particular circumstances of that case, in addition to the obvious prohibition upon naming a person as being a witness in the witness protection program, it seems to me that s.10(5) also prohibits disclosing information which would enable others to recognise a person as being a witness in a criminal proceeding where that person is a participant in the program. It may also be significant in particular cases that the information which cannot be disclosed is information “about” the identity of a participant.

1. It is not necessary here to attempt a comprehensive analysis of the width of s.10(5).

1. I have read the material relied upon by the legal representatives of the two media organisations. None of that material names the prisoner, although I was told in submissions that he had been named in the Office of Police Integrity public hearing and that his name was then suppressed. Otherwise the media representatives submission that much of the material which would be addressed in the sentence concerning this crime has already been published is borne out by the material produced. That of course in no way alters the operation of s10(5).

1. I asked counsel for the prisoner to identify what it was about this crime that had not already been published which might be revealed in the sentence apart from the prisoner's identity, and he responded that it had not been revealed yet that he had pleaded guilty and that he had given an undertaking to give evidence.  In meeting this submission the representatives of the media pointed to The Age newspaper reports which referred to Deputy Commissioner Simon Overland saying that "there is now evidence" of a police link to this particular murder, and of the repeated references to the "hit man" having told the relevant task force officers various things, and to him having "rolled over."  It has also been reported that the person who fired the gun had "admitted the crime", and that he was "likely to be charged with murder in the near future."  In my view it adds little to what has already been published to reveal that the prisoner has pleaded guilty and has undertaken to give evidence.  In this connection I repeat that the Crown no longer submits that a non-publication order is required in order to protect to the efficacy or integrity of any continuing investigation.  Senior counsel for the Crown was unable to support the submission that persons directly involved in the relevant events did not yet know that the prisoner had pleaded guilty and had undertaken to give evidence. 

1. The first issue to be addressed is the effect of s.10(5) of the Witness Protection Act.  In my view this provision means that nothing can be published which names the prisoner, or which otherwise constitutes a disclosure of information about his identity in the sense to which I have referred.

1. It seems to me that the consequences of this conclusion from my sentencing remarks are as follows:

(a)The prisoner should not be named.  Counsel for the prisoner requested the use of a pseudonym different from the one presently being employed, and I will accede to that.

(b)The circumstances of the offence can be published.  In very large measure they have already been published.  At present, it seems to me that those circumstances can be set out without disclosing information about the prisoner's identity in the relevant sense.

(c)The prisoner's personal background and prior convictions cannot be published as to do so would disclose information about his identity.

(d)The sentence the prisoner is presently undergoing cannot be referred to in specific terms as to do so would disclose information about his identity, but, at present, it seems to me that the fact that he is undergoing a life sentence can be published.

(e)The plea of guilty and the undertaking given can be published.

(f)Mr Iddles’ evidence and the Crown's submissions concerning the importance of this prisoner's cooperation can be published in general terms, but the specifics of the cooperation he has already given in another matter, and his particular concerns about his family should not be published as it seems to me that to do so would disclose information about his identity.

(g)The matters relied upon in mitigation in general terms can be published. 

1. The submission made by the representatives of the media organisations that so far as the prohibition in the Witness Protection Act applies, no order under ss.18 and 19 of the Supreme Court Act is necessary is one which I do not accept. In my view it is necessary to make a non-publication order in order not to prejudice the administration of justice as provided for in s.19(b) for the following reason.

1. The protection of the identity of persons to whom the Witness Protection Act applies is a matter of great significance. It may in some cases truly be a matter of life and death. Section 10(5) is expressed in very wide terms. There is considerable potential for uncertainty as to its application in a particular case. A person's status as a participant whose identity is protected under s.10(5) is itself a matter which cannot be disclosed. These are circumstances which do not necessarily arise in relation to other statutory prohibitions on publication. Given these matters, where the source of the information in question is a judgment or sentence of the Court itself in my view the court ought not to deliver judgment or sentence and leave the matter of compliance with s.10(5) unaddressed. This is particularly so where the court is of the view that disclosure of some parts of the judgment, or sentence could be disclosed without contravening s.10(5), and some parts could not. In my view in such circumstances it is necessary in order not to prejudice the administration of justice that the court should order that the material which the Court considers cannot be disclosed without contravening s.10(5) is prohibited from publication. It seems to me that otherwise the recipients of the information in the judgment or sentence are placed in an unnecessarily uncertain and potentially dangerous position, and the risk of a disclosure and breach of s.10(5) is unacceptably high.

1. I must emphasise that such a course does not alter s.10(5)'s operation. Those intending to disclose any material remain subject to the prohibition in s.10(5) of the Witness Protection Act and must comply with it independently of compliance with any non-publication order under ss.18 and 19 of the Supreme Court Act.

1. Given my conclusion above, it is unnecessary to deal with the issues raised concerning personal safety and s.19(c) of the Supreme Court Act, save to say that my conclusion is that it has not been established that an order extending beyond what cannot be published in any event because of the Witness Protection Act is necessary.

1. What I propose to do is to produce edited versions of my reasons of 14 November 2007 and of my sentencing reasons, and upon delivering sentence, to order that other than the publication of the matters set out in those edited reasons, publication is prohibited of any report of the whole or any part of this proceeding until further order. 

1. I will reserve liberty to apply as circumstances may arise where those orders should be vacated or varied. 

1. I will give the parties, including the two solicitors representing the media organisations if they give appropriate undertakings, the opportunity to consider and make submissions upon my proposed editing.  This will mean that some parts of my sentencing reasons will be read by the parties before the sentence, but my important sentencing conclusions will not be included in the draft circulated.  It is because I intend to proceed this way that I have expressed some of my conclusions as to what needs to be edited as being conclusions at present. 

1. I will also hear the parties as to how the sentence hearing should be conducted, and as to what parts, if any, of these reasons, can be published.