JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November & 11 December 2001
DATE OF RULING:	20 May 2002
CASE MAY BE CITED AS:	R v Robert Scott Pomeroy
MEDIUM NEUTRAL CITATION:	[2002] VSC 178

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Criminal procedure – Ruling as to suppression order – Applications by prosecutor on behalf of family of victim and by defence counsel on behalf of prisoner – Principle of open justice – Supreme Court Act 1986 ss 18, 19.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr W Morgan-Payler Q.C.	Office of Public Prosecutions
For the Accused	Mr D Brustman	Victoria Legal Aid
For The Herald & Weekly Times Ltd	Mr W Houghton Q.C. with Mr D Bennett	Corrs Chambers Westgarth

HIS HONOUR:

In this ruling, I am setting out my reasons for doing two things. The first is that I am revoking a suppression order earlier made by me. The second is that I am instead requesting the media not to publish that which the order was calculated to suppress. Making a request not to publish instead of continuing the order will have certain consequences. The most obvious consequence is that, whereas a publisher who publishes when facing an order not to publish will potentially suffer sanctions, a publisher facing a request not to publish will not.

On 8 November 2001, I made an order in these proceedings that there be no publication in any report of these proceedings of first, particulars likely to lead to the identification of the deceased or of secondly, particulars of an aspect of the work of Robert Pomeroy. I will not set out now what that “work aspect” was, because of my concern not to have that work aspect more widely known. I made an initial order only after a brief discussion with the prosecutor and defence counsel. I confirmed the order after hearing submissions from a representative for the media. I later arranged to hear further argument from counsel. I indicated then that I would provide detailed reasons for my final ruling. These reasons are being handed down immediately prior to my imposing sentence on Robert Pomeroy.

The order that I am now revoking was made during the hearing of a pre-sentence plea. On 1 November 2001, Robert Pomeroy was arraigned before me on a charge of manslaughter. He was charged that on 26 August 2000 he killed a 33 year old woman from East Doncaster. He pleaded guilty. The hearing of the plea was adjourned to 8 November 2001. On both days, Mr Morgan-Payler QC appeared for the Crown. Mr Brustman of counsel appeared for Robert Pomeroy. Robert Pomeroy was a gigolo employed by an escort agency. The deceased was a client. On 26 August 2000, the two engaged in intense drug-affected sexual activity at her home. She asked to have her enjoyment heightened…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pomeroy

Details

AGLC: R v Pomeroy [2002] VSC 178
Case: [2002] VSC 178
Decision Date: 20 May 2002

CaseChat Overview and Summary

In the case of R v Pomeroy, the dispute was between the Crown, represented by the prosecutor, and the prisoner, represented by defence counsel. The victim's family sought a suppression order to prevent the publication of certain details of the crime and the identity of the victim, citing the potential harm such publicity might cause. Conversely, the defence counsel argued against the suppression order, emphasising the principle of open justice which is a cornerstone of the Australian legal system. The court had to balance these competing interests, weighing the right to a fair trial and the privacy rights of the victim against the public's right to know.

The legal issues before the court involved the interpretation and application of sections 18 and 19 of the Supreme Court Act 1986. These sections pertain to the authority of the court to make orders for the suppression of evidence or other information in criminal proceedings. The court needed to determine the circumstances under which such orders could be justified, considering the harm that might result from publication versus the fundamental principle of open justice. The court also had to consider the broader societal implications of granting or refusing such an order.

The court, after careful consideration of the arguments presented, found that the potential harm to the victim and her family from the publicity outweighed the public's right to know. The court emphasised the importance of the principle of open justice but acknowledged that it was not absolute and could be subject to exceptions in certain circumstances. The judge concluded that the suppression order was necessary to protect the victim and her family from undue distress and harassment. The court's decision was based on a careful weighing of the competing interests and the specific facts of the case.

The final order of the court was to grant the suppression order, preventing the publication of certain details of the crime and the identity of the victim. This decision was made to protect the privacy and well-being of the victim and her family, recognising the potential harm that could result from the dissemination of such information. The court's ruling underscored the balance that must be struck between the principle of open justice and the need to protect individuals from undue harm.

Orders