R v White (No 2)

[2022] NSWSC 65

Supreme Court

New South Wales

Medium Neutral Citation:	R v White (No 2) [2022] NSWSC 65
Hearing dates:	13 January 2022
Date of orders:	13 January 2022
Decision date:	13 January 2022
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	(1) Vacate the Non-Publication Order made on 10 January 2022
Catchwords:	CRIMINAL PROCEDURE — Suppression and non-publication orders – whether application for continuation of non-publication orders should be granted where party intends to appeal – importance of principle of open justice – capacity of any future trial judge to ensure independence of jury – public interest in open justice prevails
Legislation Cited:	Criminal Appeal Act 1912 (NSW)
Category:	Procedural rulings
Parties:	Regina (Crown) Scott Phillip White (Accused)
Representation:	Counsel: B Hatfield (Crown) B Rigg SC (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid (NSW) (Accused)
File Number(s):	2020/00141305
Publication restriction:	Nil

EX TEMPORE Judgment (REVISED)

1. HER HONOUR: Having made orders and given judgment with respect to an application by the offender, Scott White (referred to as “the applicant for present purposes), to vacate a plea of guilty entered on 10 January 2022, such order being to refuse that application, the applicant now makes application to the Court for the continuation of existing non-publication orders and further non-publication orders which would prevent both the publication of the Court's reasons for the orders made today and any media reporting on the subject of these proceedings between 10 and 13 January 2022. The existing orders were made on 10 January 2022, pursuant to Part 2 of the Court Suppression and Non-Publication Orders Act 2010 (NSW).

2. The application is made in a context where senior counsel for the applicant has advised the Court that it is proposed to file an appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) against the order of the Court made today, seeking to have that order set aside.

3. It is submitted that if the appeal is in fact successful, the matter will then proceed as a trial and it will be necessary for a future court to determine the issue of admissibility of evidence - which was to be the Court's task this week - and for a jury to determine the question of whether or not the Crown has proved the accused's guilt beyond reasonable doubt. It is contended that, if that is in fact the course the matter takes, there is potential prejudice to the applicant in any publication of the details of the proceedings this week, and any publication beyond the parties of the Court's reasons for its earlier order.

4. The underlying submission in support of that is relatively clear: if a jury is to be empanelled to hear a trial, it is important that jurors do not have prior knowledge of matters which could cause them to have a pre-determined view, or to take a view of the evidence prejudiced by information gleaned from sources external to the Court and the evidence adduced before the Court. It is argued that the fact of the applicant's entry of a plea of guilty, were it to be known to potential jurors, even in circumstances where that plea was set aside by a superior court, could cause prejudice to the applicant’s trial.

5. The applicant in this matter relies upon the presumed relatively short time frame between the proceedings this week and the listing of any trial to argue that the temporal proximity is such that the possibility of prejudice to jurors could not be adequately dealt with by the trial judge.

6. The Crown opposes the order which is sought by Mr White. The Crown points to the principles of open justice and submits that much of what has been raised by the applicant consists of hypotheticals and possibilities, that the result of any appeal cannot be known, that the time frame of any pending trial, assuming that the appeal is successful, cannot be known and, in that the Court will presently have to vacate the trial date now fixed for May, there will at least be some delay in any fresh trial date being fixed, should that be the consequence of the order of the appellate court.

7. It is important I think at the outset to observe that the principles of open justice are important principles and that they are not to be reduced to mere phrases without any substantial effect.

8. Ordinarily, criminal trials are heard in open court. Members of the public can enter the courtroom and observe proceedings; members of the media can enter the courtroom and observe and report more widely to the public through media outlets. That is a fundamental tenet of our criminal justice system and it is a fundamental principle of significant importance.

9. If justice is not seen by the public to be done, there is a real capacity for confidence in the criminal justice system to be undermined and members of the public to lose faith in the proper operation of that system.

10. In the present circumstances, circumstances which have prevailed for almost two years now, there has already been a significant impost on the capacity of the public to participate in the criminal justice system by viewing court proceedings or following media reports of court proceedings. Members of the public have been, and certainly in this matter have been, routinely excluded from courtrooms, and there is not the audio-visual capacity in the court system to allow any person who seeks to do so to view proceedings on-line. The courts have tried to maintain open justice by making available to, ordinarily, any media outlet which seeks it, an audio visual link to view and hear court proceedings, together with making such links available to members of the public who have a closer interest in the proceedings than mere curiosity. But that is, it should be recognised, a compromise position.

11. With respect to this matter, what is sought is to reduce that compromise position even further, such that there could be no reporting at all of the proceedings this week and no publication beyond restricted publication of the Court's reasons for the order made today.

12. If that is what is required to prevent prejudice to the administration of justice, then plainly that is the order that the Court must make.

13. It is a question of whether that is what is required, balancing the need to prevent prejudice to the administration of justice against the requirement for open justice and for the court to do what it can to facilitate access to the courts in an era where it is not possible to simply walk into a courtroom.

14. The first matter that was relied upon in submissions from senior counsel is the high level of publicity that surrounds and has surrounded this matter.

15. To date, as I understand it, without being directly familiar with all of the publicity that has preceded these proceedings, there has been reporting in the media over some decades now about the circumstances of Dr Johnson's death and the investigation into that death and its inadequacies or otherwise. There has been a great deal of information in the media, and that information is all presently in the public domain.

16. Without having conducted the exercise myself, I imagine that if an interested person were to enter relevant search criteria into an internet search engine, a vast quantity of information would be available about the investigation into Dr Johnson's death, about the arrest of the offender, and about the listings of the various hearings that have come before the courts. That is information that is available in the digital world and which cannot be recalled.

17. Information concerning this week's proceedings would I think be minimal, in that they do not go to the circumstances of Dr Johnson's death or in any real way the nature of the Crown case against Mr White. These proceedings have been all about the integrity of the plea of guilty and whether or not it can be regarded as so undermined that to allow it to stand would constitute a miscarriage of justice. In that sense, publicity concerning what has occurred this week would pale in comparison with that which is already available in the public domain.

18. The applicant further relies upon the prospect that potential jurors would have information as to the plea entered by him on 10 January 2022 and that that would prejudice the capacity of those persons to participate as jurors.

19. That may be so, but that risk has to be assessed against the measures that a trial court can take routinely to prevent that sort of prejudice from arising. It is open to any trial Judge at a later time to empanel a jury in such a way that persons who may have information about the plea of guilty entered on 10 January 2022, and who might be prejudiced against the applicant because of that information, could be excluded from the jury panel. It is always open to a trial Judge to call for an expanded panel to be presented for selection, for that panel to be advised of relevant information concerning the matter, and potential jurors asked to identify themselves if they have had access to information which could prejudice an independent mind. It is an important feature of our jury system that courts must assume and proceed upon the basis that jurors and potential jurors will comply with directions given to them by trial Judges and act in an appropriate manner.

20. When one couples that capacity for a trial Judge to select a jury which has been in some ways vetted as to the prospect of any potential prejudice, in tandem with the potential delay in any trial, I think the possibility of prejudice to any trial is very much diminished.

21. There is some force in the suggestion that there may well be a level of delay in any trial ultimately being heard. There are a number of steps to be gone through before that would be a live issue, in any event.

22. Firstly, there must be an appeal filed to the Court of Criminal Appeal. Secondly, that appeal must be successful before the Court of Criminal Appeal. It is only if those features are satisfied that there will be a trial. When any such trial might take place can only be a matter of speculation at present.

23. The proceedings this week were intended to be part of something of a blitz by the Court to address the backlog of criminal trials stemming from the COVID-19 pandemic and the impacts it has had on the capacity of the Supreme Court to hear jury trials in the last two years. That blitz has largely gone awry this week, at least in part because lawyers and indeed Judges who were to hear matters have come down with the Corona virus and have been too ill to work.

24. The event of the Omicron variant of the COVID-19 virus is a present concern and its impact on the Court's capacity to hear jury trials is unknown. It must be at least possible that, as with the Delta variant last year, the Omicron variant will adversely affect the capacity of the Court to hear jury trials. That will mean, if it is so, that there is no guarantee that this trial, if it is to proceed, will proceed quickly. Regrettably, all jury trials have been delayed in the current climate, and I expect, if the present situation continues for any length of time, that will only worsen.

25. Given the prospect that any trial may not be speedily listed, weight is given to the suggestion that a trial Judge does have adequate means at his or her disposal to select a jury which is not infected with prior knowledge of and prejudice concerning Mr White.

26. I referred in the context of timing to the various steps that would have to be successfully undertaken for a trial to even occur, and I think there must be some force in the Crown's submission that some of what is relied upon by the applicant is simply possibility or hypothetical prospect. Many of these things simply cannot be known.

27. Taking into account the great importance of granting public access to the work of the criminal courts, and bearing in mind the significant range of legislative tools and directions available to a trial Judge to deal with any prospect of the prejudice at trial, or prejudice infecting the minds of jurors, I am not persuaded that the non-publication orders sought are required to prevent any prejudice to the proper administration of justice.

28. It seems to me that in the present circumstances the need for open justice outweighs such risk that may exist of prejudice to the applicant.

29. Accordingly, I propose to lift the non-publication orders which were made by the Court on 10 January 2022.

30. The proceedings may be reported, and the Court's judgment will be published to the Caselaw website without restriction.

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Decision last updated: 08 February 2022