R v Strawhorn (No 2)
[2006] VSC 433
•15 November 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1427 of 2003
| THE QUEEN |
| v |
| WAYNE GEOFFREY STRAWHORN |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 AND 18 OCTOBER 2006 | |
DATE OF RULING: | 15 NOVEMBER 2006 | |
CASE MAY BE CITED AS: | R v STRAWHORN (NO. 2) | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 433 | |
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Courts – Administration of justice – Prohibition of publication of the outcome of trial because of re-trial on one count – Jurisdiction – Principles of open justice and fair trial – Prohibition of publication of evidence, information or image identifying witness who gave evidence against a superior police officer – Whether a police informer - Release of part of audio recording exhibit in trial – Whether playing of that part alone misleading – Supreme Court Act 1986, ss.18, 19.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elston SC with Mr M. Tinney | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr P. Morrissey with Mr J. O'Sullivan | Galbally & O'Bryan |
| For The Herald and Weekly Times Ltd, Channel 7, Channel 9 and the Australian Broadcasting Corporation | Mr J. Quill | Corrs Chambers Westgarth |
| For The Age Company Limited | Mr S. Mukerjea | Minter Ellison |
| For The Chief Commissioner of Police | Mr G. Maguire (18 October 2006 only) | Victorian Government Solicitor |
HIS HONOUR:
Background
On 25 February 2005 Coldrey J made an order in this matter under s.18(1)(c) of the Supreme Court Act 1986 ("the Act") which, in part, prohibited the publication of any evidence, information, or image by way of photo, video, sketch, digital or other process, which identified, or which led to, or may have led to, the identification of any of six named persons. Each of these persons was a witness for the Crown in the trial before Coldrey J, and the subsequent trial before me, of Wayne Geoffrey Strawhorn for five counts of trafficking in a drug of dependence, including one count involving a commercial quantity, and one count of threatening to kill. Three of the six persons were correctly described as police informers, and another one arguably so. The remaining two persons were former members of Victoria Police, and were each currently serving a term of imprisonment for offences committed by them whilst working in the Drug Squad. The accused man, Mr Strawhorn, was a Senior Sergeant in that Squad.
On 2 September 2005 and again on 7 November 2005 that order was extended by Coldrey J by the inclusion of a further named person. Each of those persons was identified in the evidence given at the trials as a person who had acted as a police informer.
The order was made upon two of the grounds set out in s.19 of the Act. That section provides that the Court may make an order under s.18 if in its opinion:
"it is necessary to do so in order not to –
(a) …
(b) prejudice the administration of justice; or
(c) endanger the physical safety of any person; …"
On 20 January 2006, prior to the jury reaching any verdicts, Coldrey J refused an application on behalf of "The Age" newspaper for the lifting of the suppression order insofar as it related to the two former policemen. As his Honour said, the application was predicated upon there being verdicts delivered by the jury, it being conceded that in the case of a disagreement resulting in an order for a re-trial the order should remain in place. His Honour refused the application primarily because the two witnesses continued to be located in prison. He therefore held that they remained subject to the same potential danger that led to the initial making of the order and that to remove the protection of the order while they were still in the same situation would be an inappropriate application of the policy which underpinned ss.18 and 19 of the Act.
The failure of the jury to reach any verdicts did result in an order for a re-trial. However, as Coldrey J had ordered that the prohibition on publication in respect of the eight named persons continue "until further order", it was not necessary for me to make any order at the start of the trial before me. After the jury had retired to consider their verdict, I did raise with counsel that I would want to hear from them about the continuation of the suppression order at the conclusion of the trial.
The Applications
Again in advance of any verdicts by the jury, application was then made to me on Friday 13 October 2006 by representatives of media organisations for an order lifting the prohibition on publication of any evidence, information or image identifying the witness, Stephen Paton, in any reporting of the jury's verdicts. Mr Quill sought leave to appear for The Herald and Weekly Times Limited, Channel 7, Channel 9 and the Australian Broadcasting Corporation. Mr Mukerjea sought leave to appear for The Age Company Limited. A second application made by those representing the media organisations was that I authorise the release of that part of the audio recording of the conversation between the accused and his friend in which the accused spoke the words said to constitute the threat to kill Mr Peter De Santo, a senior police officer investigating his alleged wrongdoings.
Mr Quill submitted that the principle of an open court was fundamental to our democratic society. Subject to any specific suppression order the media was free to report all that was heard by those in court, including the names of the witnesses. He argued that s.19 of the Act made it clear that a suppression order should only be made if it was "necessary" to do so. Mr Quill submitted that that high test could no longer be satisfied in the case of the witness Paton whether there was a conviction of Mr Strawhorn or an acquittal.
Mr Quill submitted that the present position of Mr Paton was very different to what it had been when Coldrey J made the latest of his suppression orders. Mr Paton was out of gaol and on parole at the time he gave his evidence in this trial in open court. He was not in witness protection. Mr Quill further submitted that, given that the fact that Mr Paton was intending to give evidence against Mr Strawhorn had been reported in the press in June 2003, at the time he pleaded guilty to the charges against him, the point at which he was at greatest risk as an informer or witness against the accused was prior to him giving that evidence and particularly when he was in gaol. Therefore, he submitted, it could not be said to be "necessary" for Mr Paton's physical safety that there be any continuation, following the verdicts, of the prohibition on publication of Mr Paton's role in these events and of the fact that he had given evidence against Mr Strawhorn. If Mr Paton was at risk, Mr Quill argued, then he was at risk from people who already knew who he was and what he had done, and not from any publication after the verdicts. Mr Quill further submitted that unless the prohibition in respect of Mr Paton was lifted it was difficult to tell the story and explain the relationship between Mr Paton and the accused man.
Mr Mukerjea supported Mr Quill's application in respect of the lifting of the prohibition on identification of Stephen Paton as a witness against Mr Strawhorn. He submitted that Mr Paton's evidence was crucial for the media to fairly and accurately report the true degree of criminality in which members of the Drug Squad were alleged to have engaged.
Mr Mukerjea reiterated the submission that those who might be a potential threat to Mr Paton were already aware of who he was and what he had done in terms of giving evidence for the Crown against another police officer. In support of this submission Mr Mukerjea handed up copies from the internet of stories in The Age and The Herald Sun newspapers on 21 June 2003 which contained statements such as:
"Details of Strawhorn's activity came to light yesterday with the lifting of an order prohibiting publication of Paton's role in the investigation of Strawhorn. … Paton has agreed to give evidence against Strawhorn, co-operation that Judge McInerney said had been pivotal to the Ceja investigations and which earned him a discounted sentence."
and
"It can now be revealed that Paton will give evidence against the former head of the drug squad, Senior-Sergeant Wayne Geoffrey Strawhorn."
Also included in the extracts from the internet were two reports from The Age newspaper following the plea on behalf of Mr Paton. It would appear that at least one of these reports followed interviews with Mr Paton over the preceding year. It was said that he had agreed to be interviewed "on the condition his story would not be published until he appeared in court." Each report was accompanied by a photograph of Mr Paton. Neither contained any direct mention of Mr Strawhorn or of Mr Paton's agreement to give evidence against him.
In terms of the suppression order generally, Mr Elston QC, who appeared with Mr Tinney of counsel on behalf of the Crown, submitted that the order should remain on foot whether there was a conviction or an acquittal. He submitted that given the sort of people mentioned throughout the trial as being targets of the Drug Squad and its informers the physical safety of each of the named persons was endangered. In terms of the specific application to lift the prohibition on identification of Stephen Paton, Mr Elston submitted that Mr Paton's position remained the same and that accordingly the suppression order should continue to apply to him. Mr Elston submitted that Mr Paton was, and remained, someone who had the status of an informer or someone who had given evidence against his superior officer. Although Mr Paton was longer in prison, he would be on parole for nearly another three years. Further, he was a person who had already received death threats to him and his family. Mr Elston therefore submitted that the degree of need to ensure continuation of the order in respect of Mr Paton had been demonstrated. Publication of Mr Paton's name or likeness would, he submitted, create a substantial risk to him and his family.
Mr Morrissey, who appeared with Mr O'Sullivan on behalf of Mr Strawhorn, did not make any submissions in respect of the application concerning Mr Paton. He simply noted that unless there was an acquittal on all counts, all of the witnesses had a potential ongoing role should there be a re-trial following a successful appeal against any conviction.
I shall deal with the submissions made in the second application in due course. It is sufficient at this stage of the narrative to note that I reserved my decision on both of these applications. On Wednesday 18 October 2006, after I had made up my mind on the outcome of the applications but before I had finalised my written reasons, the jury advised that they had reached their verdicts on counts 2 to 6 but that they were "divided" on count 1. The jury's verdicts were taken on those five counts and the accused was found guilty on count 5 and not guilty on the other four. The jury then retired to continue its deliberations on count 1, following a perseverance direction and a majority verdict direction.
During the short discussion that followed concerning the suppression orders in this and other cases, I indicated to the representatives of the parties, including the media organisations, that I had concluded that the order should be lifted in respect of Mr Paton and that I did not propose to make the audio recording available. I said that I would publish my reasons for these decisions at a later date.
The jury was discharged without a verdict on count 1 later that afternoon when I was informed that agreement was impossible. Attention then returned to the question of the suppression orders in this and other cases. These reasons are only concerned with the suppression order in this proceeding.
Given that there was now a possibility of a re-trial of Mr Strawhorn on count 1, Mr Morrissey sought an order that publication of the five verdicts in this trial be suppressed until the determination of the re-trial of count 1 or until the Crown decided that there would be no re-trial. Mr Morrissey submitted that publication of the verdicts would be particularly prejudicial to Mr Strawhorn because a later jury would remember or be able to ascertain that a previous jury had found Mr Strawhorn guilty of a charge where a crucial witness on count 1, Mr Paton, had been a crucial witness on that charge, count 5, and had presumably been accepted as a witness of truth. He submitted that any publication of the verdicts would mean that there was a real and serious risk that the re-trial on count 1 would not be fair. Mr Morrissey further submitted that it could not be assumed that the passage of time before the re-trial, and that period was itself a matter of uncertainty, would cure the problems he outlined.
Mr Elston did not support this application. He submitted that publication of the verdicts would not adversely prejudice any re-trial on count 1 should it take place some time in the future. He stated that any decision about whether or not there would be a re-trial would only be made after a full consideration of all relevant matters. He also raised the prospect that a re-trial on count 1 might be heard at the same time as a re-trial on count 5 should an appeal against that conviction be successful. Mr Elston repeated the Crown's submission that there should be no change in the scope of the existing suppression order.
Mr Quill opposed the making of any order suppressing the publication of the outcome of this trial. He submitted that any re-trial would be a long time in the future. Secondly, he submitted that it was not simply prejudicial material that could be suppressed. Rather the test was whether there was a real and substantial risk that the prejudicial material would result in an unfair trial, taking into account all of the other circumstances. Thirdly, Mr Quill submitted that the necessity test could not be met when there was no certainty that there would be a re-trial. Finally, Mr Quill referred to the robustness of juries and the ability to give appropriate directions to the jury at any re-trial.
Mr Mukerjea did not seek to add anything to Mr Quill's submissions.
At the conclusion of the submissions on Mr Morrissey's application I announced that I had reached the view that there should be no suppression of the outcome of this trial and that I would publish my reasons for this decision at a later date.
One further development needs to be recited. At the hearing following the discharge of the jury Mr Maguire sought leave to appear for the Chief Commissioner of Police seeking to have the suppression order in respect of Mr Paton's image continued. Mr Maguire submitted that the Chief Commissioner had an interest in ensuring as far as possible that police officers who gave information or evidence against other allegedly corrupt police officers were given protection from what might otherwise be chilling consequences. He submitted that the justification for suppressing Mr Paton's image was analogous to that for suppressing the address of a witness.
Mr Quill opposed this last minute attempt to preserve part of the suppression order relating to Mr Paton. He submitted that those who might want to do harm to Mr Paton already knew what he looked like. Or they could search the internet to find the old photographs of him in the newspapers at the time he was sentenced. He further submitted that there was no cogent reason advanced as to why suppressing Mr Paton's image would make any difference.
Mr Mukerjea submitted that there was no general policy that witnesses in any criminal or civil proceeding should be afforded any protection by way of anonymity, other than the special category of police informer. Otherwise, he again relied on Mr Quill's submissions.
At the conclusion of these further submissions on the application for an order lifting the prohibition on identification of Stephen Paton as a witness in this trial, I announced that I was now of the view that the lifting of the suppression order should not extend to a lifting of the order prohibiting the publication of an image by way of photograph, video, sketch, digital or other process which identified Mr Paton and that I would publish my reasons for this ruling at a later date.
What follows are my reasons for refusing the application on behalf of Mr Strawhorn to prohibit any publication of the outcome of this trial; my reasons for partially lifting the prohibition on publication of any evidence, information or image identifying the witness, Stephen Paton, in any reporting of that outcome; and my reasons for refusing to authorise the release of that part of the audio recording which contained the alleged threat to kill Mr De Santo.
Publication of the Outcome of this Trial
An order prohibiting any publication of the outcome of this trial would, in my opinion, have been quite unjustified. As Gibbs J (as his Honour then was) said in Russell v Russell[1]:
"It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that proceedings should be conducted publicly and in open view. This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those administrative officials, for publicity is the authentic hallmark of judicial as distinct from administrative procedure."
[1](1976) 134 CLR 495 at 520
More recently, the principle has been re-stated by Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of New South Wales[2]:
"It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public. (See Scott v Scott [1913] AC 417 at 473; Dickason v Dickason (1913) 17 CLR 50 at 51; Daubney v Cooper (1829) 10 B & C 238; 109 ER 438 at 440; Russell v Russell (1976) 134 CLR 495 especially at 507 and 520-521, 532.) The taking of a verdict is something which occurs in the ordinary course of criminal proceedings. (See, for example, Coulter v The Queen (1988) 164 CLR 350 at 356, 357 and cf 359-360, 362.)"
[2](2004) 61 NSWLR 344 at [18]
Normally, the outcomes of trials are permitted to be publicised, even where the jury has been unable to reach a verdict, which generally means that there will be a re-trial. In John Fairfax & Sons Ltd v Police Tribunal of New South Wales[3], McHugh JA (as his Honour then was) explained why this was so:
"Without the publication of the reports of court proceedings, the public would be ignorant of the working of the courts whose proceedings would inevitably become the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making. The publication of fair and accurate reports of court proceedings is therefore vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice."
[3](1986) 5 NSWLR 465 at 481
A similar explanation was given by Hedigan J in The Herald and Weekly Times Pty Ltd v Medical Practitioners Board of Victoria[4]:
"The reason for the favouring of open hearings is intimately connected with the conduct of public affairs in a democracy, namely, that it is, as a general principle, in the public interest that disputes between State and citizen, and citizen and citizen, not be tried behind closed doors but so that the work of those appointed to decide, the evidence given by witnesses, and the decisions can be scrutinised by all who care to visit. Since not everyone can visit, citizens in a democracy depend to a substantial extent upon accurate and published reporting of what takes place. Restrictions on access to the courts or on the dissemination of events which take place in courts ought, it seems to be generally thought, only be imposed if it is necessary to do so for the proper administration of justice. One might refer to a statement by counsel in his submissions to the court in R v Clement in 1821 (cited by McPherson J in Ex parte Queensland Law Society Inc. [1984] 1 Qd R 166 at 171) with respect to the hearing of cases by courts:
It is for the public benefit that a faithful account should be published of a transaction of which they might otherwise receive only a garbled account from the mouth of individuals.
In an open and truly democratic society, the right of various forms of the media (that is, the media as a means of communication of the issues, parties and the hearing) to be present and to publish is generally regarded as being in the public interest, so long as the reports are accurate and do not misrepresent, by omission or unbalanced selection, the evidence and its effect. The right to report is seen as an adjunct of the right to attend."
[4][1999] 1 VR 267 at 278-279
Thus, "the entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public"[5], because "the media are the eyes and ears of the general public"[6], not all of whom can attend court proceedings.
[5]John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at [20] per Spigelman CJ
[6]Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109 at 183 per Sir John Donaldson MR
Nevertheless, this Court has both the inherent power[7] and the statutory power to prohibit "the publication of a report of the whole or any part of a proceeding"[8], if in its opinion "it is necessary to do so in order not to … prejudice the administration of justice."[9] It may be necessary to prohibit pre-trial publicity if there is "a real and substantial risk that such publication will cause an interference with the administration of justice of a kind which might cause serious injustice,"[10] such as interfering with an accused person's right to a fair trial.
[7]Ex parte the Queensland Law Society [1984] 1 Qd R 166 at 170 per McPherson J. See also The Herald and Weekly Times Pty Ltd v A [2005] VSCA 189 at [26] per Maxwell P and Nettle JA.
[8]Supreme Court Act 1986 s.18(1)(c)
[9]Supreme Court Act 1986 s.19(b)
[10]Friedrich v Herald and Weekly Times Ltd [1990] VR 995 at 1005 per Kaye, Fullagar and Ormiston JJ
Spigelman CJ also re-stated the importance of the principle of a fair trial in John Fairfax Publications Pty Ltd v District Court of New South Wales[11]:
"The principle of a fair trial has been characterised in numerous High Court judgments in the most forceful of terms. It has been described as 'the central thesis of the administration of criminal justice': McKinney v The Queen (1991) 171 CLR 468 at 478; as 'the central prescript of our criminal law': Jago (at 56); as a 'fundamental element' or a 'fundamental prescript': Dietrich v The Queen (1992) 177 CLR 292 at 299, 326; and as an 'overriding requirement': Dietrich (at 330). It is not a new principle. As Isaacs J put it in 1923 with reference to 'the elementary right of every accused person to a fair and impartial trial': 'Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle': R v MacFarlane; Ex parte O'Flanagan & O'Kelly (1923) 32 CLR 518 at 541-542."
[11](2004) 61 NSWLR 344 at [22]
As previously stated, Mr Morrissey's application was based on the premise that publication of the outcome of this trial would be prejudicial to any later re-trial of Mr Strawhorn on count 1. In considering this application I formed the view that in fairness to the accused I must proceed on the assumption that there would be such a re-trial. I disagreed with Mr Quill's submission that I should take into account the supposed uncertainty about a re-trial in assessing the necessity for suppression of the outcome of this trial.
It was clear, however, that any such re-trial would be many months into the future. Given the anticipated publicity which would no doubt surround the reporting of the outcome of this trial and of the trials of other former members of the Drug Squad, which became public at the same time, it had to be acknowledged that the passing of time might not completely remove from the minds of potential jurors all recall of these earlier events. Nevertheless, in my opinion, the delay would impose some limitations on the impact of that publicity. Although not all of that publicity would necessarily be unfavourable to Mr Strawhorn, as he was acquitted by the jury of four counts, including the three counts most closely related to count 1, I accepted that there was the potential for prejudice flowing from publication of the fact that the accused was found guilty of one count of trafficking in a commercial quantity of a drug of dependence and that this conviction depended, in part, on acceptance of the evidence of Mr Paton, who was a critical witness in respect of count 1.
An important point in any consideration of an application for suppression of the outcome of a criminal trial, pending a re-trial of one or more counts or a trial of other charges, is the ability of the jury to comply with their oath to decide the case on the evidence before them and to ignore what they may have heard before the case. Spigelman CJ referred to this issue in John Fairfax Publications Pty Ltd v District Court of New South Wales[12] when he said:
"There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them."
[12](2004) 61 NSWLR 344 at [103]
After referring to passages expressing similar views in the decisions of the High Court of Australia in R v Glennon[13] and Hinch v Attorney General (Vic.) (No. 2)[14], Spigelman CJ quoted[15] the following proposition by the Ontario Court of Appeal in R v Hubert[16], which had been subsequently cited with approval in the High Court:[17]
"In this era of rapid dissemination of news by the various media, it would be naïve to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to tender a true verdict according to the evidence."
[13](1992) 173 CLR 592 at 603 per Mason CJ and Toohey J
[14](1988) 164 CLR 15 at 74 per Toohey J
[15](2004) 61 NSWLR 344 at [106]
[16](1975) 29 CCC (2d) 279 at 291
[17]Murphy v The Queen (1989) 167 CLR 94 at 99 per Mason CJ and Toohey J
His Honour continued:
"Furthermore, as Kirby A-CJ said in R v Yuill (1993) 69 A Crim R 450 at 453-454:
'… Courts will assume that jurors, properly instructed, will accept and conform to the direction of the trial judge to decide the case solely on the evidence placed before them in court: see Demirok (1977) 137 CLR 20 at 22. There is an increasing body of judicial opinion, lately expressed, to the effect that whatever pre-trial publicity exists, jurors, when they take on the solemn responsibility of the performance of their duties in the courtroom differentiate between gossip, rumour, news and opinion which they hear before the case and the evidence which they hear in the court in the trial for which they are empanelled.'
As Gleeson CJ said in R v VPH (Court of Criminal Appeal, 4 March 1994, unreported) at 7: 'The jury will be given appropriate directions to confine their attention to the evidence that is put before them. Our entire system of the administration of criminal justice depends upon the assumption that jurors understand and comply with directions of that character.'
Finally, as McHugh JA said in Gilbert v The Queen (2000) 201 CLR 414 at 425[31]: '… Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials'."[18]
[18](2004) 61 NSWLR 344 at [107]-[109]
In all the circumstances, I was not persuaded that a fair and accurate reporting of the outcome of this trial would mean that there was a real and substantial risk that the accused's re-trial on count 1 would not be fair. In particular, any concerns could be dealt with by the trial judge by, for example, the giving of appropriate directions to the jury about deciding the case solely on the evidence placed before them. Accordingly, I refused to make an order prohibiting the publication of the outcome of this trial.
Publication of any Identification of Stephen Paton
Those who sought to maintain the prohibition on the publication of any evidence, information or image identifying the witness, Stephen Paton, in any reporting of the outcome of this trial primarily based their argument on the submission that Mr Paton fell within the well recognised category of police informer, which is treated as an exception to the normal rule. As Kirby P said in Cain v Glass (No. 2):[19]
"… courts seek to protect the confidences of persons who are obliged to give confidential evidence to a court. This is so in civil and criminal cases. In criminal cases there are many occasions where witnesses fear, sometimes with justification sometimes without, that the giving of evidence will expose them to risk of retaliation, ostracisation and even violence. The law of contempt and specific criminal offences exist to provide protection to such witnesses and potential witnesses in this predicament. In the case of police informers, rules have developed, over many years, to protect the confidential basis upon which police deal with such informers. In part, this is for the defence of the particular witness involved. In part, it is to ensure a continuing flow of helpful information from such a witness. In part, it is to reassure the many other persons who, formally and informally, provide useful information to the police. Special care needs to be exhibited by any court approaching an application for the disclosure of the identity of a person said to be entitled to protection as a police informer."
[19](1985) 3 NSWLR 230 at 233-234
I did not agree that Mr Paton was properly regarded as coming within the exceptional category of a police informer. That was not his role in these events. He had engaged in criminal activities whilst a member of the police force. Nevertheless, he agreed to give, and had given, evidence against a superior police officer which placed him in a position of some danger particularly when he was in prison. He and his family had also received death threats. This meant, in my opinion, that the question of prohibition of any publicity identifying him deserved serious consideration, but not on the basis that he was a police informer.
It seemed to me that, in all the circumstances, the prohibition on publication of any identification of Stephen Paton was no longer justified now that he was out of prison. I did not consider it to be "necessary" for his physical safety to continue the prohibition given that there had already been some publicity in June 2003 about his agreement to give evidence against Mr Strawhorn. I accepted the submission by Mr Quill and Mr Mukerjea that in all likelihood those who might be a potential threat to Mr Paton were already aware of who he was and what he had done.
Although I initially announced that I was of the view that the prohibition in respect of Mr Paton should be lifted in its entirety, I was subsequently persuaded by the submissions advanced by Mr Maguire that the prohibition on publication of Mr Paton's image should remain. Despite the fact that photographs of Mr Paton had been published in 2003 and despite the fact that it was probable that those who might want to do harm to Mr Paton already knew what he looked like, it did seem to me, on further reflection, that it was necessary for the safety of a person in Mr Paton's position to maintain the prohibition on publication of his image. As Mr Maguire submitted, the justification for suppressing Mr Paton's image was analogous to that for suppressing the address of a witness.
Accordingly, I ordered that:
(a)The order of Coldrey J made on 20 January 2006 be varied by deleting from paragraph 3 the name "Stephen Andrew Paton", and
(b)The publication of any image by way of photograph, video, sketch, digital or other process which identifies, or which leads to, or may lead to, the identification of, Stephen Andrew Paton be prohibited until further order.
Release of the Audio Recording
The audio recording of a conversation between Mr Strawhorn and his former colleague in March 2003 had been played in open court. The recording, together with a 44 page transcript of the conversation, had become an exhibit in the trial. The recording had been possible because the former colleague had been fitted with a recording device by officers from the CEJA Task Force investigating alleged police corruption. It was towards the end of this conversation that Mr Strawhorn spoke the words which were said to have constituted the threat to kill Mr De Santo.
It should be noted that there was no issue about the reporting by the media of the words spoken by Mr Strawhorn. I had previously authorised the release to the media of the transcript of this conversation and two other recorded conversations in order to assist the reporters to provide a fair and accurate report of the issues involved in the trial. Mr Quill very frankly stated that the only part of the recording sought to be released was that relating to the alleged threat to kill. It consisted of three and a half sentences by Mr Strawhorn as follows:
"STRAWHORN: But the bottom line is my life in the Police Force is over. My hope – hope to get to that thirty year pension is gone. They've fucked me terribly and I will not rest until DE SANTO is dead.
[OTHER PERSON]: Are you gonna kill him …?
STRAWHORN: Yeah I have to, it's the only way to get satisfaction …"
Mr Quill accepted that the recording of the question asked by the other person could not be used as recognition of the voice could lead to that person being identified, in breach of Coldrey J's order.
Mr Quill referred me to several recent decisions[20] by Cummins J where the release of similar exhibits, in particular tape recordings of lawfully intercepted telephone and personal conversations, was authorised. In essence, his submission built on the submissions made earlier about the role of the media in furthering the principle of an open court. Mr Mukerjea again supported Mr Quill's submissions. He argued that hearing the actual words spoken added a great deal more than just reading what was written on paper.
[20]Director of Public Prosecutions v Debs and Roberts [2003] VSC 38; Director of Public Prosecutions v Gatto, unreported, 14 June 2005.
Mr Elston, on behalf of the Crown, was simply concerned to ensure that any playing of the audio recording did not breach the terms of Coldrey J's order.
Mr Morrissey strenuously opposed the release of the specific part of the recording sought by the media organisations. He submitted that simply to play the three and a half sentences by Mr Strawhorn without the intermediate question by the other person and without any indication of the role played by that former colleague in the conversation leading up to Mr Strawhorn's statement, took that statement completely out of context and made it a quite unrealistic portrayal of what had occurred. Even if all of that part of the recording were sought to be released, it would still be taking a small part of a lengthy conversation out of context in a quite unfair and misleading way as far as Mr Strawhorn was concerned.
With respect, I agree with the approach of Cummins J, which is that generally exhibits ought to be released to the media for publication after verdict.
"… because the media have a fundamental and important and proper role in ensuring that courts are truly public. In the modern community that means in a practical sense the provision to the media for electronic and printed dissemination of the material published to the world but in fact seen or heard only by those few persons of the public who are in court."[21]
[21]Director of Public Prosecutions v Gatto, unreported, 14 June 2005 at [4].
However, in this case, I concluded that to release the recording of only the alleged threat to kill would not be appropriate. I agreed with Mr Morrissey's submission that playing these words alone would be misleading because it would be taking them out of context. I understand the dilemma facing the media organisations when making an application such as this No doubt in an attempt to limit the intrusion into the private lives of the two men involved in the conversation, only a very specific part of the recording was sought to be released. Yet this limited application was then criticised for taking statements out of context. Nevertheless, that was the application that was made and I considered that the criticism was warranted.
I also agreed with the submission that sometimes a recording can add realism and meaning which cannot be found in the written words themselves. Indeed, in this very case that was part of the defence to the threat to kill count. The jury were invited to decide that Mr Strawhorn did not intend the former colleague to believe that he was going to kill Mr De Santo. It was said to be simply a throw away line by an angry and frustrated man, who was rambling on about all his woes. It was submitted to the jury that Mr Strawhorn's voice and tone did not change when he said the words in question. However, simply playing the three and a half sentences by Mr Strawhorn would not demonstrate the points made by defence and would add nothing to the written words. This brings me back to the decisive consideration, in my mind, that the playing of such a limited part of the recording of the conversations would be misleading because it would be taking the statements in question out of context.
Accordingly, I refused to authorise the release of that part of the audio recording which contained the alleged threat to kill Mr De Santo.
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