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…

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 Strawhorn (No 2)

Details

AGLC: R v Strawhorn (No 2) [2006] VSC 433
Case: [2006] VSC 433
Decision Date: 15 November 2006

CaseChat Overview and Summary

In the case of R v Strawhorn (No 2), the respondent, a former police officer, sought a prohibition order against the publication of the outcome of his trial and the release of evidence identifying a witness who testified against him. The case was heard in the Supreme Court of Victoria. The primary dispute centred on whether the court had the jurisdiction to prohibit the publication of information that could potentially prejudice a retrial and whether it could prevent the disclosure of information that might reveal a police informer.

The legal issues the court was required to decide included the balance between the principles of open justice and fair trial, and whether the prohibition of publication of certain information was warranted. The court also needed to determine if the release of part of an audio recording exhibit could be misleading when considered in isolation from the rest of the evidence.

The court found that it had the jurisdiction to prohibit the publication of information that could prejudice a retrial, but it was not appropriate to prohibit the publication of the outcome of the trial as a whole. The court emphasised the importance of the principle of open justice and the need for transparency in legal proceedings. However, the court also recognised the need to protect the identity of witnesses who testified against superior police officers, particularly if they were police informers. The court held that the release of part of an audio recording exhibit could be misleading if considered in isolation from the rest of the evidence, and therefore, it was appropriate to prohibit its release.

The court issued a prohibition order against the publication of the outcome of the trial that related to one count, and against the release of evidence identifying the witness who testified against the respondent. However, the court did not prohibit the publication of the outcome of the trial as a whole, as it believed that the principle of open justice outweighed the potential prejudice to the respondent. The court also found that the principles of fair trial and open justice did not necessarily require the disclosure of information that might reveal a police informer, and therefore, it was appropriate to protect the identity of the witness in this case.

Orders