R v White
[2007] VSC 471
•17 November 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1475 of 2007
| THE QUEEN | Plaintiff |
| v | |
| WALLY WHITE | Defendant |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2007, 14 November 2007 | |
DATE OF JUDGMENT: | 17 November 2007 | |
CASE MAY BE CITED AS: | R v White & Ors | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 471 | |
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CRIMINAL LAW – Suppression orders – Co-accused giving evidence for the Crown – Risk whilst in prison – Encouragement to come forward – Necessity not established in circumstances.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Horgan S.C with Mr T. Wallwork | Office of Public Prosecutions |
| For the Accused | Mr W.E. Stuart | Dowling Mcgregor Thomas |
| For Mr John Kohunui | Mr P. Clarebrough | Clarebrough Pica |
| For Mr Tame Kohunui | Mr D. Dann | Geoffrey Tobin |
HIS HONOUR:
Wally White was arraigned on a presentment filed on 23 April 2007 on charges of armed robbery and murder. He was originally an accused on a presentment with a number of co-accused. Two of those co-accused pleaded guilty, gave an undertaking to give evidence against him, and were sentenced on 8 May 2007. Wally White pleaded not guilty.
On 8 June 2007 the jury trying Wally White were discharged as they could not agree. His re-trial began on 15 October 2007. The jury in that re-trial began considering their verdict on 14 November 2007. The two former co-accused gave evidence in both trials.
Suppression orders made and submissions heard in the course of the first trial
Early in the first trial an order was made prohibiting publication of the names of the two former co-accused. After the prosecution opening an order was made prohibiting publication of any report of the evidence of those former co-accused until verdict or further order. Representatives of the media were heard in relation to that order. They opposed the order. An order was also made in the proceeding in which the two former co-accused were sentenced which prohibited publication of any report of the plea hearings and sentences until verdict in the trial of Wally White or further order. The plea hearings and the sentences both referred to the evidence they were to give against Wally White.
The jury in the first trial retired to consider their verdict on 5 June 2007 and shortly thereafter I began hearing an application by the two former co-accused for orders prohibiting or restricting publication of material relevant to them indefinitely. Submissions were also made by counsel for the Crown, and by a solicitor, Mr J Quill, on behalf of The Herald and Weekly Times Pty Ltd, publisher of the “Herald Sun” newspaper.
The informant in the various matters gave evidence on that application. He gave evidence of specific threats which had been made against various witnesses or potential witnesses in the trials of Wally White and the two former co-accused. He also gave evidence as to the importance of providing incentives for people such as these former co-accused to come forward and give evidence.
Counsel for the former co-accused submitted that both of their clients were in custody and were vulnerable to physical attack. It was conceded that the risk of physical attack emanating from someone with an association with the case would not be altered by any suppression order made as persons involved in the case already knew that the two former co-accused had given evidence against Wally White. The submission was that there is a general culture in prison whereby persons who give evidence against other prisoners are potential targets of attack. The submissions made on behalf of the former co-accused referred to the burdensome nature of protection in jail and the importance of protecting the welfare of persons who come forward to give evidence. It was also submitted that the Crown had indicated that it would support orders suppressing the identity of the two former co-accused and that that had been a significant factor in their decision to plead guilty and to undertake to give evidence against Wally White, as they subsequently had done.
Senior counsel for the Crown submitted that the risk that would be addressed by a non-publication order at that stage was the risk emanating from “volunteers” within the prison system rather than from persons directly involved in the case. He acknowledged that those directly involved in the case already knew that the two former co-accused had given evidence against Wally White. Senior counsel for the Crown had been involved in all of these matters and he informed the Court that it was his assessment of the position that the former co-accused would not have agreed to give evidence if they had not known that the informant and the Crown would support non-publication orders in relation to them. Amongst other things, he submitted that there was an important public interest in encouraging persons such as the former co-accused to come forward and give evidence.
In submissions made when the orders had been initially sought the Crown had submitted that the physical risk the former co-accused faced was highest prior to the giving of their evidence.
The undertaking given by each of the former co-accused to give evidence against Wally White was a significant matter in their respective sentences. They each obtained a substantial discount as a result of that undertaking. In the course of the application at the end of the first trial senior counsel for the Crown submitted that it was “vital that the public do know that”, and he submitted further that it was “vital that people know why people get the sentences they do”. He submitted that what ought to be ordered was the “minimum possible” to protect the witnesses, which he submitted was an order that they should only be referred to as a witness who cannot be named. He then clarified that position by saying that it was important that the fact that they had been co-accuseds, that they had pleaded guilty, that they had given an undertaking to give evidence for the Crown, and that they had been dealt with on that basis should all be public.
At the first trial counsel for the former co-accused sought a much wider order than that which was supported by counsel for the Crown. The substance of the order sought was that the fact that the two former co-accused had given evidence should be entirely suppressed. This would mean that an important factor taken into consideration on their sentences would be suppressed.
On behalf of The Herald and Weekly Times Pty Ltd, Mr Quill submitted that there was no proper basis for any order. He referred to the high threshold represented by the test of necessity and submitted that, on analysis, all that existed here was a common situation of one prisoner giving evidence against another. It would be, he submitted, a very dangerous precedent to begin suppressing the names of prisoners in that situation. He submitted that Corrections Victoria has a system to protect people needing protection. He referred to the authorities emphasising the importance of open justice. He submitted that knowledge that the former co-accused had given evidence was already held by those directly involved and was probably widespread. He said it had been referred to, without reference to names, in news reports at the time when only the names had been suppressed. He submitted that if any order was to be made it should not be a pseudonym order, which he said inhibits the manner in which reporters can report a matter, but rather should be an order that simply prohibits the use of the names. He submitted that no such order should be made. He submitted that the former co-accused were not registered informers and were not in witness protection under applicable legislation.
When the jury were discharged the then existing orders remained in force as there had been no verdict or further order.
Order made and further submissions heard in the second trial
So as to avoid any possible uncertainty, on 16 October 2007 I re-made the order concerning non-publication of the names of the former co-accused and their evidence in the second trial of Wally White. Like the other orders, that order was expressed to operate until verdict or further order.
When the jury retired in the second trial I heard further submissions on what course ought to be followed in relation to suppression after verdict. Counsel appeared for the two former co-accused. Mr Quill appeared again for Herald and Weekly Times Pty Ltd, and Mr Horgan made further submissions on behalf of the Crown.
Mr Horgan indicated that the prosecution’s position was the same as it had been at the end of the first trial.
Mr Quill made submissions to a similar effect to those he had made at the end of the first trial.
Counsel for each of the former co-accused also substantially repeated the submissions they had made at the end of the first trial.
The Crown filed a short affidavit of Trevor William Pickering, sworn 13 November 2007. Mr Pickering is the acting manager, Operations Sentence Management Unit, Corrections Victoria. Mr Pickering also gave oral evidence, at my instance, to clarify the matters he deposed to.
The relevant portion of his affidavit reads as follows:
“The witnesses are presently held within a mainstream unit of a prison. Should their names be released, they will be identified by other prisoners as Crown witnesses and their risk of physical harm from other prisoners may be increased. It may be necessary to place them in a protection unit. Protection units are more restricted in options as there are fewer places available and their movement within the prison system is more limited.”
In his oral evidence Mr Pickering indicated that if there is publicity which affects the prisoners, they will be interviewed and appropriate arrangements will then be made. He said that it is not necessarily the case that they would be placed in a protection unit. He said that identifying publication would increase the risk that they face.
Applicable principles and application here
It seems to me that the principles applicable are the following:
1.It is of fundamental importance that Courts operate openly. Similarly, unrestricted reporting of Court proceedings is also most important. Under s 18 of the Supreme Court Act publication of the whole or a part of a proceeding can be prohibited, but only where it is necessary to do so by reason of the matters enumerated in s 19 of the Supreme Court Act.
2.The test of necessity under ss 18 and 19 of the Supreme Court Act represents a bar which is very high and will be reached only in exceptional circumstances.[1]
3.The circumstance that publication of some fact may render a person in need of special protection whilst in custody will rarely be sufficient in itself to establish necessity of the requisite kind.[2]
4.It is not correct to assume, or to assert, that in Court proceedings names are unimportant.[3]
5.The suppression of names and the use of pseudonyms is countenanced by the Courts in certain cases, including those involving police informers,[4] and in relation to Crown witnesses in custody.[5]
6.Deterring similarly placed persons from coming forward in the future is a matter which might prejudice the administration of justice.[6]
[1]R v Pomeroy [2002] VSC 178 at [11] (“Pomeroy”).
[2]Pomeroy and Herald and Weekly Times and Anor v Jones, unreported, Supreme Court of Victoria, 25 March 1992, Nathan J, BC9203152 at 7.
[3]Herald and Weekly Times v Magistrates’ Court [1999] 2 VR 672, 677-9.
[4]John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465, 480; Herald and Weekly Times v Medical Practitioners Board [1999] 1 VR 267, 293; and AB v Magistrates’ Court of Victoria [2003] VSC 378R.
[5]The Age Company Limited v Magistrates’ Court [2004] VSC 10.
[6]Re David Syme, unreported, Supreme Court of Victoria, 23 April 1996, Beach J, BC9601467.
The position here is that the Court has never been closed, during either of the trials or during the pleas and sentences of the two former co-accused. Access to the Court has never been restricted.
It seems to me to be clear that orders of the breadth of the orders in place before verdict cannot be justified under the test of necessity in ss 18 and 19 of the Supreme Court Act after verdict. The extent of the personal risk which the two former co-accused face if their identities are revealed by publication is unclear. It is not suggested by the material now before me that they cannot be protected, rather what is suggested is that it may be necessary to take steps to protect them and that, if it is necessary to take steps to protect them, they will be subject to restrictions and their movement within the prison system will be more limited. Suppression orders of the breadth of those in place here prior to verdict cannot be justified as being necessary, in my view, on that basis after verdict.
The issue then is whether a more limited order, which is confined to prohibiting publication of their names, is necessary, not so much on the basis of the physical risk to which they may be exposed, although that remains a factor, but more on the basis that it is necessary to make the order in the interests of the administration of justice so as to encourage other persons in the same position as the two former co-accused to come forward.
I accept that in an appropriate case material might establish that it is necessary to make an order either prohibiting the publication of names, or in wider terms, on the basis that it is necessary to do so in the interests of the administration of justice in order to encourage particular people, or a class of people, to cooperate with the authorities. The material before me does not establish that necessity in this case. There is a significant public interest in open justice in general and, as was accepted by senior counsel for the Crown, there is a significant public interest in the publication of these matters. In that context the material put before me does not go far enough to establish that an order here is necessary in the interests of the administration of justice.
There are three further considerations.
First, the accused Wally White and everyone who has attended Court or who is closely associated with the case already know that the two former co-accused have given evidence for the Crown.
Secondly, significant detail about the case will be permitted to be published even if the names are suppressed. I am not persuaded that merely suppressing the names will have sufficient practical effect to justify the making of the order. In other words, if all that is suppressed is the names, in my view what can be published would identify them in any event.
Finally, there is no point in suppressing their names in reports of the Wally White trials unless their names are also suppressed in relation to their own pleas and sentences as well. This would mean that two persons convicted and sentenced for very serious and notorious crimes would remain anonymous. This is undesirable and could only be justified as necessary in the interests of the administration of justice in very unusual circumstances and on compelling material.
In all the circumstances I have determined that the requisite necessity has not been established in relation to the position after verdict. I will not to make any further suppression order after verdict.
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