R v Pearce
[2003] WASC 105
R -v- PEARCE & ORS [2003] WASC 105
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 105 | |
| Case No: | INS:80/2003 | 21 MAY 2003 | |
| Coram: | ROBERTS-SMITH J | 21/05/03 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application for suppression order refused | ||
| A | |||
| PDF Version |
| Parties: | THE QUEEN SEAN PEARCE STEPHEN LYNNE WHARTON WALTER JOHN TIELEMAN |
Catchwords: | Procedure Courts and Judges Nonpublication order Suppression order made in Court of Petty Sessions Whether can be "extended" to cover proceedings in Supreme Court Power to make suppression order Courts and Judges Suppression order Conspiracy to defraud by means of scheme for tax evasion Whether names of accused should be suppressed Whether order can be made before accused arraigned Principles |
Legislation: | Justices Act 1902 (WA), s 65 |
Case References: | Cooke v Federal Commissioner of Taxation (2002) 51 ATR 223 Federal Commissioner of Taxation v Lau (1984) 6 FCR 202 Fletcher v Federal Commissioner of Taxation (1991) 173 CLR 1 J v L and A Services Pty Ltd (No 2) [1995] 2 Qd R 10 Jago v District Court of New South Wales (1989) 168 CLR 23 John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Martin v M & Ors (1991) 54 A Crim R 173 Peters v The Queen (1998) 192 CLR 493 Petroulias v Wills [2003] NSWSC 106 Raybos Australia Pty Ltd & Anor v Jones (1985) 2 NSWLR 47 Re Bromfield SM; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 TK & Ors v Australian Red Cross Society (1989) 1 WAR 335 Vincent v Federal Commissioner of Taxation (2002) 51 ATR 18 Federal Commissioner of Taxation v Brand (1995) 31 ATR 326 Federal Commissioner of Taxation v Emmakell Pty Ltd (1990) 22 FCR 157 Federal Commissioner of Taxtion v Firth (2002) 192 ALR 542 Herald and Weekly Times Ltd v Magistrates' Court (Vic) [1999] 2 VR 672 HowlandRose v Commissioner of Taxation (2002) 118 FCR 61 Nationwide News Pty Ltd v District Court of New South Wales & Ors (1996) 90 A Crim R 435 Puzey v Federal Commissioner of Taxation (2002) 194 ALR 615 VIP Australia Pty Ltd v Commonwealth Director of Public Prosecutions, unreported; FCt SCt of SA; 2 May 1994 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Crown
AND
SEAN PEARCE
STEPHEN LYNNE WHARTON
WALTER JOHN TIELEMAN
Accused
Catchwords:
Procedure - Courts and Judges - Nonpublication order - Suppression order made in Court of Petty Sessions - Whether can be "extended" to cover proceedings in Supreme Court - Power to make suppression order
Courts and Judges - Suppression order - Conspiracy to defraud by means of scheme for tax evasion - Whether names of accused should be suppressed - Whether order can be made before accused arraigned - Principles
Legislation:
Justices Act 1902 (WA), s 65
(Page 2)
Result:
Application for suppression order refused
Category: A
Representation:
Counsel:
Crown : Mr J A Scholz
Accused Pearce : Mr N J Mullany
Accused Wharton : Ms C E Brookes
Accused Tieleman : Mr J M Wojtowicz
Solicitors:
Crown : Commonwealth Director of Public Prosecutions
Accused Pearce : Sceales and Co
Accused Wharton : Laurie Levy & Associates
Accused Tieleman : Wojtowicz Kelly
Case(s) referred to in judgment(s):
Cooke v Federal Commissioner of Taxation (2002) 51 ATR 223
Federal Commissioner of Taxation v Lau (1984) 6 FCR 202
Fletcher v Federal Commissioner of Taxation (1991) 173 CLR 1
J v L and A Services Pty Ltd (No 2) [1995] 2 Qd R 10
Jago v District Court of New South Wales (1989) 168 CLR 23
John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Martin v M & Ors (1991) 54 A Crim R 173
Peters v The Queen (1998) 192 CLR 493
Petroulias v Wills [2003] NSWSC 106
Raybos Australia Pty Ltd & Anor v Jones (1985) 2 NSWLR 47
Re Bromfield SM; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153
TK & Ors v Australian Red Cross Society (1989) 1 WAR 335
Vincent v Federal Commissioner of Taxation (2002) 51 ATR 18
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Case(s) also cited:
Federal Commissioner of Taxation v Brand (1995) 31 ATR 326
Federal Commissioner of Taxation v Emmakell Pty Ltd (1990) 22 FCR 157
Federal Commissioner of Taxtion v Firth (2002) 192 ALR 542
Herald and Weekly Times Ltd v Magistrates' Court (Vic) [1999] 2 VR 672
HowlandRose v Commissioner of Taxation (2002) 118 FCR 61
Nationwide News Pty Ltd v District Court of New South Wales & Ors (1996) 90 A Crim R 435
Puzey v Federal Commissioner of Taxation (2002) 194 ALR 615
VIP Australia Pty Ltd v Commonwealth Director of Public Prosecutions, unreported; FCt SCt of SA; 2 May 1994
(Page 4)
1 ROBERTS-SMITH J: The application initially made was one by the accused Pearce. At the hearing today it was supported orally by counsel on behalf of the accused Tieleman and Wharton, although it does appear that there may have been an outline of submissions filed at least on behalf of the accused Tieleman within the last few days or so, a copy of which was handed to me today.
2 The three accused appear in this Court on a Commonwealth indictment dated 11 March 2003 which charges them jointly that between 1 January 1998 and 30 June 1999 at Perth and elsewhere in the State of Western Australia and Melbourne in the State of Victoria Stephen Lynne Wharton, Walter John Tieleman and Sean Pearce conspired with each other and with Lawrence John Aistrope and Tarek Wahby to defraud the Commonwealth contrary to s 29D and s 86(1) of the Crimes Act 1914 (Cth).
3 As I have said, the only formal application before me is that on behalf of the accused Pearce.
4 The failure by the legal representatives of the other two accused to make application as required by the Criminal Procedure Rules 2000 (WA) has not stood in their way. As I have indicated, I have permitted oral applications to be made on their behalf.
5 There is some background to the matter which should be mentioned. I am informed that on the first appearance of the accused Pearce and Tieleman in the Court of Petty Sessions on 3 December 2002 before his Worship Mr Tarr SM, a suppression order was made by consent. The defence apparently submitted that it was appropriate to protect and safeguard the professional reputation of their clients, who are both partners in a firm of chartered accountants.
6 At the time, the prosecution also apparently sought such an order, given that at that stage not all potential defendants had been arrested, but indicated that it was likely that the issue would have to be revisited when all defendants who were likely to be arrested had been.
7 The order made by his Worship does not specifically state under which provision it was made, but it is apparent I think that it could only have been made under s 65 of the Justices Act 1902 (WA).
8 I am further informed that on 11 December 2002, Mr Wharton was arrested and that on 12 December the prosecution sought a listing of the
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- matter on the basis that the prosecution no longer required the suppression order.
9 The matter came before his Worship Mr Heaney SM on 17 December but his Worship was not prepared to hear the prosecution application in the absence of Mr Tieleman who had left the country on a pre-arranged family holiday. His Worship adjourned the matters with the suppression order to continue until 12 February 2003, which was the date for mention of the committal. On that date the Chief Stipendiary Magistrate, his Worship Mr Heath, extended the suppression order having heard briefly from counsel for the accused Pearce that publication might prejudice the defence.
10 The threshold submission put before me today by Mr Mullany on behalf of the accused Pearce, which submission, as are his others, is adopted by counsel for the other two accused, is that this Court has jurisdiction to extend or revoke the suppression order made by the Magistrate or, alternatively, to make a new suppression order but not until such time as the accused are arraigned.
11 In my view, the suppression order made by his Worship Mr Tarr must and can only have been made under s 65 of the Justices Act.
12 It is clear from the terms of that section, and it could not be otherwise, that any order made under it can only operate upon and in relation to the proceedings before the Court of Petty Sessions. It cannot operate beyond that, and plainly cannot operate in respect of proceedings upon indictment in this Court.
13 The power to make an order, inter alia, suppressing publication of the whole or any part of the proceedings in the Supreme Court in the exercise of its criminal jurisdiction is one which resides in this Court in the exercise of its inherent jurisdiction to control its own procedures: see Re Bromfield SM; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153.
14 I do not accept the submission that this Court has no jurisdiction to deal with the question nor to make or refuse a suppression order prior to arraignment of the accused. There are numerous references in the Criminal Code to the exercise of powers prior to arraignment. As Mr Scholz submitted, s 608 and s 611A are obviously two of them.
15 I have no doubt that I am seized of jurisdiction to make a suppression order in relation to these accused prior to arraignment. That would be an
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- order made by and in the exercise of the jurisdiction of this Court and would not be an extension of any pre-existing order made by a Magistrate. It is the exercise of a different jurisdiction.
16 The outline of submissions for the accused Pearce gives some factual background to the circumstances in which these applications are made. From that it appears that the accused Pearce is director of specialist taxation advisers McKessar Tieleman and that at the commencement of the period of the alleged offences that firm was a partnership of which Tieleman was a partner and the accused Pearce was a senior manager. McKessar Tieleman was subsequently incorporated and the accused Pearce and Tieleman now serve on it as directors.
17 It is said that the prosecution's statement issued pursuant to s 100 of the Justices Act alleges that the accused were appointed to act on behalf of Servcom Pty Ltd ("Servcom") to provide accounting and taxation advice in relation to a proposed franchise scheme that Servcom and its associate Servcom (Aust) Pty Ltd ("Servcom (Aust)") proposed in order to market Servcom's services in Australia.
18 The proposal was that Servcom (Aust) would issue licences to investors to acquire a Servcom franchise at a cost of $39,500. It is alleged that under the Servcom arrangements franchisees would claim certain allowable deductions in the conduct of the franchise business. It is alleged that the arrangement would be financed by non-recourse loans to be provided by a company named Allied Securities.
19 It is further alleged that the accused Pearce knew that there would not be a real flow of funds and therefore the $29,500 financed funds would not become cash as well. It is also alleged that Pearce countenanced $8,000 of the fee being tax deductible although allegedly knowing "at the very least" that the portion of it claimed as training fee was "wholly artificial".
20 It is said that at the heart of the alleged conspiracy to defraud is the assertion that the proposed long-term loans from Allied Securities in respect of which tax deductions were to be claimed was simply a round robin arrangement and that moneys would never actually change hands and that the accused Pearce knew of this sham.
21 It is further alleged that the accused Pearce knowingly defrauded the Commonwealth by organising a corporate structure designed to present a facade that investors would be entitled to tax deductions and arrange the submission of taxation returns claiming such deductions knowing that the
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- financial transactions which gave rise to the entitlement of the deductions were a sham.
22 That brief outline of the prosecution case is of course expressed specifically and essentially solely in relation to the accused Pearce. It does not purport to canvass the position of the other accused, but it is I think sufficient for present purposes.
23 There is no disagreement that it is a fundamental principle of the administration of justice that proceedings take place in open court and that the power to suppress publication of proceedings in open court can only be exercised in exceptional circumstances in the interests of justice.
24 However, the accused submit that those circumstances include the need to ensure proceedings are fair and where suppression is necessary in the interests of a party or witness in a particular proceeding or to preserve what is referred to as the "practical utility" of the proceedings. It is, of course, the applicants' case that those circumstances exist here. Those basic principles may be gleaned from the case of Bromfield to which I have already referred.
25 Mr Mullany for the applicant Pearce puts forward nine separate bases upon which he submits the suppression order should be made, not individually but as a combination of circumstances which he says lead to that necessary outcome. It is, I think, nonetheless apt at this stage to refer to some further authorities in which the principles applicable to such applications are discussed.
26 In J v L and A Services Pty Ltd (No 2) [1995] 2 Qd R 10 the question arose in the context of an application for a suppression order to suppress the disclosure of the identity of the plaintiff who had contracted the HIV virus. It was based in part on the prospects of social harm and the stress-related exacerbation of the plaintiff's condition should there be publicity. The primary Judge granted the application. An appeal against that order was allowed.
27 The relevant principles were discussed at 44. They were there set out as being, first, that although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities the paramount public interest in due administration of justice, freedom of speech, the free media and an open society require that court proceedings be open to the public and able to be reported and discussed publicly.
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28 Secondly, it was said that the public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the Court's decision of practical utility.
29 Thirdly, in relation to practical utility, it is not an apprehension that public access or publicity would deprive the proceeding of practical utility which is the premise upon which the principle is based, but it is rather upon the actual loss of utility which would occur.
30 Fourth, it was acknowledged that no unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
31 Five, it was acknowledged that different degrees of restraint are permissible for different purposes. It is not necessary for me here to set those out.
32 The sixth category was said to give rise to the most difficulty because of unresolved questions concerning the nature and ambit of the power. Even though more modern authority seemed to give some support for a more liberal approach, information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm or other collateral disadvantage.
33 Reference was made to the observation of McHugh JA in John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 in which his Honour said that if information is suppressed, proceedings would inevitably become the subject of rumours, misunderstandings, exaggerations and falsehoods. A particularly unsatisfactory manifestation of this difficulty, it was said, occurs when uncertainty as to the particular person concerned leads to speculation concerning other members of a relevant group. Finally it was said:
"… it is important to remember that what appears to be a more liberal approach involving the exercise of a discretionary power in the interests of an individual involves an erosion of fundamental rights and freedoms of the general public. The occasional misuse or abuse of these rights and freedoms or other disadvantages associated with public information and discussion, which is sometimes misinformed, together with any resultant harm are part of the cost of living in a free, democratic society. It is common for sensitive issues to be litigated and for information which is extremely personal or confidential to be disclosed. It is of obvious concern that such a paramount
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- principle as the requirement of open justice should not be whittled away on a case by case basis according to individual judges' subjective views of the merits or demerits of the claims to privacy of individual litigants. It is also of concern that there should not be an expenditure of time, resources and costs on arguments that do not bear directly on the merits of disputes."
34 It was concluded there that there was no basis for a conclusion that the proceedings would be deprived of practical utility unless the public was excluded or publicity was forbidden and that, further, no restraint upon public access or publicity was needed for the purpose of a fair trial.
35 I have been referred in the course of argument to a number of authorities and I do not propose to canvass them all now. I do briefly mention, however, Martin v M & Ors (1991) 54 A Crim R 173. That case involved a solicitor and a client and others, including a chairman of a charitable trust associated with a hospital, who were charged with conspiracy to defraud the Commonwealth in relation to a tax avoidance scheme. The charges were later dropped. Two of them subsequently pleaded guilty to charges of imposing on the Commonwealth.
36 During the proceedings, suppression orders were made and continued in relation to the identity of all accused and the question before the Full Court of the Supreme Court of South Australia, was as to the continued validity of those orders. The appeal was allowed in part. It was held that insofar as the trial Judge had been influenced by the odium, embarrassment and stigma that would be suffered by the accused if their names were published, he was in error.
37 I note, however, that as with many of these cases the particular reasoning and statements of principle turn upon specific statutory provisions. The Court in Martin was concerned with s 69A of the Evidence Act 1929 (SA).
38 In the present case, as I have observed, the power which I am entertaining is an inherent power of the Court and has no statutory foundation. Nonetheless, most of the authorities turning even on particular statutory provisions are of some at least limited utility in articulating principles to be applied generally on applications of this kind.
39 In Martin, one of the statutory heads for the exercise of the power was the proper administration of justice. At 177 Cox J stated that the trial Judge obviously and understandably had found it distasteful from general considerations of fairness that a man should be charged with serious
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- offences and then subjected to a lot of unwelcome newspaper publicity, despite the fact that prior to the trial the prosecution of those charges had been abandoned. His Honour continued at 178:
"The view that the proper administration of justice is prejudiced with embarrassing and possibly harmful publicity is given to those who are charged with serious offences, which are not pursued or of which they are eventually acquitted, cannot itself be made the basis for virtually automatic suppression orders, covering the period between a defendant's first appearance in court and the disposal of the last appeal, on the ground that it will not be until that final step has been taken that the need or otherwise of a permanent suppression order can be discerned, so that the only fair and effective course in the meantime is to secure the position with appropriate holding orders."
41 The first of the nine bases upon which the applicant Pearce and hence the other two applicants rely is said to be the need to ensure that the return to Australia of two critical witnesses is not compromised. This is a reference to the two alleged co-conspirators, Aistrope and Wahby.
42 It is apparently to be alleged that the accused Pearce and Tieleman met with Aistrope and Wahby on 9 February 1998 to discuss a number of issues. Aistrope and Wahby were directors and promoters of Servcom. The allegation is that all four of them agreed to defraud the Commissioner for Taxation, and so the Commonwealth, in relation to professional services provided to Servcom (Aust) between January 1998 and June 1999.
43 Counsel for the applicant puts it that Aistrope and Wahby are crucial witnesses to the alleged conspiracy to defraud - that their role is integral to the case advanced against the accused, and points out that both men feature repeatedly in the extensive documentation comprising 22 lever arch files provided by the Crown to the defence. Both of them are overseas and have, according to the applicants' outline of submissions, not been served in these proceedings.
44 The proposition is that no step should be taken which may compromise the return of these witnesses to Australia and that the lifting of the suppression orders would be such a step. To that extent it is further
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- said that suppression of the names of the accused and the identity of their accounting practice is necessary to preserve the practical utility of the proceedings.
45 As I have observed, the two individuals named are not simply potential witnesses but they are potential co-accused. I understand that warrants have been issued for their arrest on this very charge, and as the Crown submits, it follows that they could only give evidence in relation to the applicants if they chose to do so in their own cause, and were then cross-examined on behalf of the applicants.
46 No authority has been put to me which would support a proposition that the fact that a potential co-accused has fled the jurisdiction would justify the remaining accused receiving the benefit of a suppression order, and it seems to me quite wrong in principle that such might be done. It appears that both Aistrope and Wahby have left Australia and, as the Crown puts it, shown a marked disinclination to return. I am told that Wahby is an Egyptian national by birth, that he left Australia in October 1998, almost 5 years ago, and has not returned and is unlikely to do so. Australia has no extradition treaty with Egypt.
47 I am told that Aistrope left in June 2002 and has not returned and that was within a month of his solicitor being notified in relation to documents seized in a number of searches from October 1998 onwards, that an earlier concession by the National Crime Authority that the documents were subject to legal professional privilege was to be reviewed.
48 In my view, it would be ingenuous and naive not to expect that those two individuals would have every inclination not to return to Australia and a full awareness even now of the prospect of their prosecution. In any event, as I have said, it seems to me no proper basis on which a suppression order should be made in relation to the present accused.
49 It is said on behalf of the applicants that in the event that Aistrope and Wahby do not return to Australia because they come to hear of these proceedings, it is anticipated that an application would be made for a permanent stay of these proceedings on the basis of the need for a fair trial in reliance upon Jago v District Court of New South Wales (1989) 168 CLR 23.
50 That submission, it seems to me, again lacks any merit. It could not give rise to any relevant unfairness nor prejudice on the material presently before me, but in any event, the proposition is no more than an assertion that a further application for a stay would be made in the future if
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- Aistrope and Wahby do not return to Australia, and so that does not call for determination now.
51 The second, third and fourth bases can be dealt with together. They go to the potential for irreparable serious harm to the business reputation of the accused and their general standing in the community, the potential for serious loss of business opportunity and the adverse consequences for their employees.
52 It is said on behalf of the applicants that publication of the names of the accused and the identity of their accounting practice will cause irreparable damage which is neither necessary nor just in all the particular circumstances. That, in particular, would go to hardship or cause hardship to them individually and to their practice, both personally and in terms of income. It would result in a loss of work from existing and new clients and in all probability have adverse effects on the facilities provided by bankers.
53 I have been referred by Mr Wojtowicz to a copy of a letter from the finance director of GRD dated 3 February 2003 to the accused Tieleman advising that pending further information as to the outstanding charge, that firm and related entities proposes to transfer its tax agency arrangements from their firm to another. Further submissions are made to me to the same effect.
54 It is pointed out on behalf of the applicants that as practising accountants and registered tax agents, they owe and discharge fiduciary obligations and they are professional men whose professional reputation will be seriously imperilled by these allegations.
55 It is specifically put that the allegations made are sufficient to allow the Tax Agents Registration Board to cancel or suspend their registration to practise as such under s 251K(2) of the Income Tax Assessment Act 1936 (Cth).
56 To my mind, that last is not dependent upon whether the names are suppressed but, even so, it seems to me wrong in principle for this Court to suppress publication so as to avoid notice of allegations such as those concerned here from coming to the attention of an accused's professional regulatory body.
57 I think it must be acknowledged and accepted that publication of the details of the accused and the circumstances and nature of the allegations may cause personal distress and embarrassment, potential damage and
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- difficulties for the accused. To quite what extent those might go is largely speculative but, nonetheless, for the purposes of the present applications I will assume they will be significant.
58 However, the question really remains as to whether that consideration outweighs the public interest in the public conduct of criminal proceedings. Some aspects of this were considered in Raybos Australia Pty Ltd & Anor v Jones (1985) 2 NSWLR 47. That case involved a solicitor charged with contempt and emphasis was placed on the professional nature of his occupation. Kirby P at 55 said:
"Many cases report the scrutiny by courts of statutory provisions designed to derogate from the open administration of justice. Running though these decisions is a common theme. It is that, by our tradition, the open administration of justice is the rule. Statutory derogation from openness is the exception. In defence of the rule, such statutes will usually be strictly and narrowly construed. Unless the derogation is specifically provided for, courts are loath to expand the field of secret justice:"
- Then a short time later his Honour said:
"The principles which support and justify the open doors of our courts likewise require that what passes in court should be capable of being reported. The entitlement to report to the public at large what is seen and heard in open court is a corollary of the access to the Court of those members of the public who choose to attend."
"Statute apart, it is doubtful on the authorities, that courts have the power to make an order, operating outside the court, which suppresses the publication of anything said in open court".
60 As I have observed, I am proceeding for present purposes on the assumption that I do have that inherent jurisdiction. It was indeed a jurisdiction which, as I read his Honour's observations in that case, his Honour acknowledged does exist. At 58 his Honour made the following observations:
"First, the proceedings for contempt of court brought against Mr Jones are in their nature criminal: see Fraser and Meredith v The Queen. It is especially undesirable that criminal
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- proceedings or contempt proceedings should be conducted in closed court or under limitations of publicity: see Brennan, Deane and Gallop JJ in R v Tait 46 FLR 386 at 401; 24 ALR 473 at 487. This is because what is at stake, ultimately, is not private interest of citizens but the public interest relevantly, in the proper administration of justice: …"
61 His Honour went on to refer to further authorities and then a little later added:
'… the notion advanced by Rogers J to justify his orders suggests that 'professional men' are in a special category deserving of particular protection by the court because all they have to offer is their professional skill which may be imperilled by charges which are not supported by affidavit evidence. Whether or not it is apt to have regard to such criteria in the proceedings that were before his Honour (a matter upon which I am not required to pass), all people come to the hearing of criminal charges equal before the law. It would be especially inappropriate, where the charge relates to a suggested interference in the due administration of justice by lawyers to accord to a professional lawyer, facing such a charge, a special and privileged position: cf R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society. To do so might be misinterpreted as a derogation from the principle, so fundamental to our criminal law, of equality under the law, to which more than mere lip service must be paid."
- Finally his Honour concluded:
"The principles which support open courts apply with special force the open reporting of criminal trials and, by analogy, contempt proceedings."
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- "… it is then necessary to decide whether publication, in the usual way, of the names in suit will defeat the ends of justice; that is to say, whether publication will defeat the very purpose to which the public conduct of a court's business is ordinarily deemed essential. The inquiry must start with the proposition, central to our notions of forensic order that the integrity, fairness and efficiency of the system, and its administrators, may be maintained by its exposure to public scrutiny. One corollary is the freedom to publish to the public fair reports of the court's proceedings."
63 His Honour was in agreement with what Kirby P had said, that it is of particular importance that criminal proceedings should be heard in public and fully reported, but not because they involve the public interest in the proper administration of justice to any greater extent than civil proceedings because all proceedings before all courts involve that public interest. His Honour observed that the emphatic desirability of public scrutiny of criminal trials is due essentially to the need to protect the accused whose liberty is, or often is, at stake against prejudice or unfairness. That, of course, I interpolate, must be prejudice or unfairness in the conduct of the trial.
64 The summary question as his Honour saw it was whether publication in the ordinary course of the identity of the defendant and certain of his associates in the contempt proceedings would defeat the ends of justice, that is to say would publication prevent or perhaps seriously impede the fair resolution of those proceedings according to law, which is what his Honour took the ends of justice to require and the public interest in its due administration to demand. It seems to me that even applying that approach to the present case does not lead to a conclusion that on these bases a suppression order should be made.
65 As I have said, a number of cases have been put before me. An examination of individual cases is of assistance usually only insofar as they articulate statements of principle. To the extent they are merely examples of application of principle they are of limited utility. That is because the making of a suppression order is discretionary, albeit the discretion has to be exercised judicially.
66 I will mention briefly the case of TK & Ors v Australian Red Cross Society (1989) 1 WAR 335. That was a case raised in the context of the potential for the compromise of the integrity of the trial process. It has
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- some bearing upon the observations to which I have just referred in the context of the previous bases.
67 At 341 his Honour the Chief Justice said, in reference to the facts and circumstances of that case, that public knowledge of the identity of the proposed plaintiff in each of the cases before him would be likely to defeat the paramount object of the courts, which is to do justice according to law. That was because the proposed plaintiffs would be reasonably deterred from bringing proceedings unless public disclosure of their identities could be prevented. That seems to me to be a major point of distinction between the present case and the circumstances there.
68 I accept the Crown's submission in relation to the fifth basis, that the potential for the compromise of the integrity of the trial process is misconceived. The applicants' submission suggests, for example, that a jury panel containing members of the public who have themselves, or know friends or family who have, been adversely affected by deductions arising from tax minimisation schemes would impair or affect a proper verdict.
69 I accept the submission on behalf of the Crown that if there is such a danger, then it is one which probably already exists, but more significantly it is one which in the ordinary course of any trial, and in particular a trial such as this, would be obviated by directions to the jury both at the outset of the trial and in the Judge's summing up at its conclusion.
70 It seems to me not an appropriate basis, either alone or in combination with the other suggested bases, to found a suppression order. My conclusion, therefore, in relation to both that ground and the previous three bases is that neither alone nor in combination do they justify such an order.
71 I come now to the suggested sixth basis, the possibility that the security of the applicants may be compromised and that they may be exposed to risk of physical harm. That seems to me not supported to any degree, certainly not to any sufficient degree, in the material before me. It is said that the applicants have reasonable cause to apprehend that they may become the subject of personal attack notwithstanding that they refute the allegations advanced against them. I do not accept that proposition as being realistic and if it is, it is not one which is appropriately met by the making of a suppression order.
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72 The next basis is said to be the expected significant delay prior to the commencement of the trial. I am told that the trial is likely to occupy 10 to 12 weeks and is not likely to come on until at least mid-2004 or even later. It will involve highly technical issues of fact and law. It may be that the trial does take that long to come on, although one would hope not.
73 The proposition which is built on that foundation is that the accused would be potentially exposed to scrutiny by the media for the length of time between now and the trial and that may extend the prejudice and risks to which reference has already been made. In particular it is said it can be expected there would be an increasing build-up in media attention.
74 It is concluded then that if prior to trial it is accepted that there are serious deficiencies in the case advanced against the applicants and the prosecution is likely to fail, they will have sustained undue and irremediable hardship and that the damage to their names, professional reputations and business would be irreparable.
75 It seems to me that in the circumstances again this is no proper foundation for the making of a suppression order. Whether or not there is likely to be an increasing build-up of media attention is quite speculative at this stage. There is no proper foundation for it, but even were it to occur, the position would be no different from other cases, even those involving so-called high profile public figures or those in which the media and the public may have a continuing interest. That consideration, it seems to me, does not outweigh the public interest in the public conduct of these proceedings.
76 The final basis advanced is that the Crown case is weak. Without going into detail, it is submitted briefly that franchise arrangements involving similar structures, marketing arrangements and other aspects of the alleged scheme or arrangement have been considered by the courts on several occasions and found to be lawful.
77 Reference is made to a number of cases which are said to support that proposition, that is to say the lawfulness of what are said to be various aspects of the arrangement of the alleged conspiracy. One would not expect authorities of the kind referred to at pars 56 to 67 of the applicant Pearce's outline of submissions to be set out in a s 100 Statement. I make that observation because this submission, it seems to me, relies largely on an analysis of the Statement that was provided pursuant to s 100 of the Justices Act.
(Page 18)
78 Furthermore, the fact that particular financial or business arrangements have been upheld by the courts as tax effective, as in Cooke v Federal Commissioner of Taxation(2002) 51 ATR 223, does not necessarily mean that arrangements which may bear some apparent similarity but involve different parties with different purposes and intentions and alleged by the Crown to be dishonest and fraudulent could not be so. That would ultimately turn upon the facts of the particular case and proof of dishonesty and intent to defraud (see Peters v The Queen(1998) 192 CLR 493). The case of Petroulias v Wills [2003] NSWSC 106 is no more than an example of that.
79 To give another obviously pertinent example, the fact that financial arrangements involving round robin payments or book entries have been held in specific circumstances to have been lawful and effective (as in Federal Commissioner of Taxation v Lau(1984) 6 FCR 202 at 207) does not mean such an arrangement in different circumstances could not be an incident or evidence of a conspiracy to defraud. That point is apparent from an examination of the authorities themselves, for example, Fletcher v Federal Commissioner of Taxation (1991) 173 CLR 1 at 14 where the High Court accepted the round robin transaction in that case could constitute counterbalancing set-offs of credit and debit amounts but observed at 14 that was so only "once arguments of sham and fiscal nullity are rejected," and even then whether or not they did so operate was a mixed question of law and fact which depended upon the circumstances of the case.
80 I note too that in Vincent v Federal Commissioner of Taxation (2002) 51 ATR 18, to which I have been referred this morning, it was held that what is said by Mr Wojtowicz to involved a similar loan agreement to that in this case was not a sham. That may well be so but as I have said it all depends in the end on the circumstances of the individual case.
81 For the purposes of the present applications for a suppression order it is neither necessary nor appropriate to say any more about this aspect of the applicants' submissions. It is sufficient to say that these will be matters for determination at trial. The fact that they are or may be arguable does not justify me making a suppression order.
82 I do not accept the applicants' final submission that on evaluation of the competing interests for and against the renewal of the suppression orders and in the particular circumstances of this case, the interests of the applicants should prevail and that the ends of justice are liable to be defeated by the lifting of the suppression orders.
(Page 19)
83 Indeed, I consider that has not been demonstrated to any sufficient degree. How the ends of justice would be liable to be defeated by the lifting of the suppression orders or more accurately, in light of what I have said, by this court not making such an order or orders now has not been demonstrated. I consider the interests of justice to be served by open and public proceedings go the other way. The applications for suppression orders will be refused.
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