R v Wiliams; In the matter of an application by "The Age"
[2004] VSC 413
•22 October 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1434 of 2004
| IN THE MATTER of an Application to set aside an order for non-publication | |
| - and - | |
| IN THE MATTER of THE QUEEN v CARL ANTHONY WILLIAMS | Applicant |
---
JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 September 2004 | |
DATE OF JUDGMENT: | 22 October 2004 | |
CASE MAY BE CITED AS: | IMO an Application by “The Age” and ors re: R v Carl Anthony Williams | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 413 | |
---
COURTS – Administration of justice – Prohibition of material said to prejudice fair trial – Prohibition of publication of plea and sentence for drug trafficking of person awaiting trial for murder – Jurisdiction – Principles of “fair trial” and “open justice” – Supreme Court Act 1986 ss. 18, 19.
---
APPEARANCES: | Counsel | Solicitors |
| For Carl Anthony Williams | Mr S. Grant | Theo Magazis & Associates |
| For the Director of Public Prosecutions | Mr W. Morgan-Payler Q.C. with Mr K. Gilligan | Office of Public Prosecutions |
| For The Herald & Weekly Times Ltd, the Nine Network, Seven Network, Ten Network and the ABC | Mr J. Quill (Solicitor) | Corrs Chambers Westgarth |
| For “The Age” Newspaper | Mr A. Strahan | Minter Ellison |
TABLE OF CONTENTS
Background......................................................................................................................................... 2
The jurisdiction............................................................................................................................. 4
Necessity........................................................................................................................................ 5
The principles of a fair trial and open justice........................................................................... 6
The submissions of the accused as to the issue of a fair trial................................................. 6
The submissions of the media as to the principle of open justice............................................ 8
The Cases........................................................................................................................................... 10
Conclusion......................................................................................................................................... 12
HIS HONOUR:
On 25 August 2004 Carl Anthony Williams pleaded guilty before me to two counts of trafficking in drugs of dependence. Publication of the fact of his plea of guilty, and the part that he played in the trafficking offences was suppressed under s.18 of the Supreme Court Act 1986 until further order, principally in order to ensure that his co‑accused wife, Robert Williams, who was at the time of the order soon to be tried on drug trafficking charges would be able to obtain a fair trial unaffected by adverse and prejudicial publicity. On 28 September 2004 Roberta Williams pleaded guilty to one count of trafficking in a commercial quantity of a drug of dependence. The principal basis upon which the order preventing prohibition of the plea, conviction and sentence of her husband, Carl Williams, therefore, no longer exists. However, after the making of the order prohibiting publication, and on 30 August 2004, a presentment signed by the Director of Public Prosecutions was filed in this Court whereby Carl Williams, together with others, is charged with involvement in the murders of Jason Moran, Pasquale Barbaro and Michael Marshall. The issue now before me is whether, in the proper exercise of my discretion, the order prohibiting publication of the fact that Carl Williams has been convicted and sentenced in relation to serious drug trafficking charges should be extended so as to ensure that any prejudice flowing from those matters does not affect his trial in relation to the allegations of murder now made against him.
Background
On 8 July 2004 presentments were filed in the Supreme Court whereby Carl Anthony Williams, Walter Foletti, Roberta Williams, Olivian Foletti and Pablo Foletti were jointly presented for trial on charges of trafficking in commercial quantities of drugs of dependence. The charges relate to events which are alleged to have occurred in April and May of 2001.
On 23 July 2004 Pablo Foletti pleaded guilty to one count of trafficking in a commercial quantity of a drug of dependence. His plea was heard on 10 August 2004 and he was sentenced that day.
On 2 August 2004 Olivian Foletti pleaded guilty to two counts of possession of a drug of dependence. Her plea was heard on 20 August and she was sentenced on 24 August 2004.
On 10 August 2004, and in order not to prejudice the forthcoming trial of the remaining co‑accused, that is, Carl Williams, Walter Foletti and Roberta Williams, an order was made pursuant to s.18 of the Supreme Court Act that no part of the proceedings against Pablo Foletti and Olivian Foletti be published.
However, on 25 August 2004 both Carl Williams and Walter Foletti pleaded guilty to one count of trafficking in a commercial quantity of a drug of dependence and one count of trafficking in a drug of dependence. This left only one person facing trial, Roberta Williams. At that time her trial was fixed to commence on 29 September 2004. By reason of the imminence of her trial I made orders prohibiting publication of the forthcoming pleas and sentences of Carl Williams and Walter Foletti so as to ensure that prejudicial pre-trial publicity about matters which were to be the subject of allegations against Roberta Williams would not affect her trial.
In the meantime and on 8 September 2004, Roberta Williams was arrested on charges of obtaining a financial advantage by deception. Those charges are unrelated to the matters upon which she faced trial in this Court. On 9 September 2004, Cummins J ordered that publicity relating to the deception charges be prohibited until 4.00 p.m. on 29 September 2004 or further order. This order was made by his Honour so as to ensure that prejudicial material relating to Roberta Williams was not published in the weeks leading up to her trial on the drug allegation.
On 28 September 2004, Roberta Williams pleaded guilty before me to one count of trafficking in a commercial quantity of a drug of dependence. The hearing of her plea was adjourned until 22 October 2004. Obviously, upon the entry of her plea of guilty, the reasons for the prohibition of publication of the pleas and sentences of her co‑accused and of the publication of other charges laid against her were no longer valid. Immediately after Roberta Williams pleaded guilty to the charge made against her, I vacated the orders made by me in relation to the pleas and sentences of Pablo, Olivian and Walter Foletti. I also set aside the order of 9 September 2004 of Cummins J in relation to Roberta Williams. However, I adjourned the hearing of applications to be made to vacate the orders I had made in relation to Carl Williams (the accused) until 2.15 p.m. the next day so as to enable all interested parties to be heard on the matter.
The application to set aside the order prohibiting publication was made by Mr A. Strahan of counsel on behalf of The Age Newspaper, and Mr J. Quill, the solicitor for a number of media organisations. In essence, both Mr Strahan and Mr Quill submit that the public interest in the transparency of the court process outweighs any prejudice which may occur to the accused. In this regard they rely upon the fact that the murder charges against the accused are, on any view, most unlikely to be heard in this court prior to mid next year at the earliest.
Mr Grant of counsel, who appears for the accused, submits that the level of media interest and reporting about the accused has been as extensive as against any accused person in recent times. Furthermore, he submits that the nature of the convictions for drug trafficking is such that it is so linked with the charges of murder, which are yet to be tried in this court, that the publication of the conviction and sentence for drug trafficking will prevent a fair trial from being had in relation to the charges of murder.
Mr Morgan‑Payler Q.C., who appears with Mr Gilligan on behalf of the DPP to assist the Court, makes no submission that the suppression order in question should be continued.
The jurisdiction
The Supreme Court has inherent jurisdiction derived from its position as superior court of Victoria of unlimited jurisdiction with responsibility for the administration of justice[1]. There can be no doubt that the inherent jurisdiction of the Court includes the power to prohibit the publication of proceedings if it is “ … really necessary to procure the proper administration of justice in proceedings before it”[2]. The inherent jurisdiction of the Court is co-existent with the statutory powers granted by ss.18 and 19 of the Supreme Court Act 1986 which give the court power, amongst other things, to order that “the publication of a report of the whole or any part of a proceeding”[3] may be made “if in its opinion it is necessary to do so in order not to … prejudice the administration of justice”[4].
[1]See Constitution Act s.85(1) and Grassby v R (1989) 168 CLR 1 at 16 – 17.
[2]John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 per McHugh J at 477.
[3]Supreme Court Act 1986 s.18(1)(c).
[4]Supreme Court Act 1986 s.19(b).
Necessity
It is apparent that an order prohibiting publication of court proceedings, whether made under the inherent or the statutory jurisdiction of the court, should be made only if it is “necessary” in all the circumstances to do so. In Ex parte the Queensland Law Society, McPherson J said[5]:
“The only inherent power that a court possesses is power to regulate its own proceedings for the purpose of administering justice; and apart from securing that purpose in proceedings before it, there is no power to prohibit publication of an accurate report of those proceedings if they are conducted in open court, as in all but exceptional cases they must be.“.
[5][1984] 1 Qd R 166 at 170.
That observation was quoted with approval by McHugh J (as he then was) in John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales[6]. That such orders should be made in cases only of clear necessity is established beyond any argument by the decision of the Court of Appeal of the Supreme Court of Victoria in An Application by Chief Commissioner of Police (Vic) for leave to appeal[7], when the Court in a unanimous judgment stated that orders suppressing publication of court proceedings should be made only when “clearly necessary”[8]. I observe that that decision was upheld by the High Court, although the reasons for judgment have yet to be handed down. Furthermore, when considering the effect of pre-trial publicity, prohibition orders will be necessary only if there is a “ .. real or substantial risk that such publication will cause an interference with the administration of justice of a kind which might cause serious injustice … “[9].
[6]At 479.
[7][2004] VSC 83.
[8]At para 30.
[9]Friedrich v Herald & Weekly Times Ltd [1990] VR 995 at 1005. See also the observations of Cummins J in DPP v Williams and Ors [2004] VSC 209.
The principles of a fair trial and open justice
Both Mr Strahan of counsel and Mr Quill concede that the issue before me involves the conflict of two fundamental principles. However, they each contend that the principle of open justice and the public interest in the maintenance of transparency of court processes, in all the circumstances, should prevail over any prejudice which may be caused to the fair trial of the accused man.
The submissions of the accused as to the issue of a fair trial
On the other hand, Mr Grant of counsel contends that the right of the accused to a fair trial “should not give way to the media’s insatiable and irresponsible appetite for reporting, disguised in the clothes of ‘open justice’.” In this regard, he relies upon an affidavit of his instructing solicitor, Mr Magazis, sworn on 23 July 2004 and in particular to bundles of exhibits to that affidavit consisting of numerous newspaper articles referring to the accused man, his wife and to others associated with him. That material indeed establishes that the accused has been the subject of extraordinary publicity in the media, on a weekly, if not almost daily, basis throughout much of this year. It would appear upon reading the exhibits that although some of the publicity has been engendered by members of the police force and other unnamed “sources”, a not inconsiderable part of it has been the result of the accused, or his wife, and others associated with him, being prepared to make public statements to the media about their situation. The publicity at times has indeed been prurient and even as Mr Grant argues, irresponsible taking into account the fact that both Mr and Mrs Williams were facing trial.
Mr Grant submits that by reason of this extraordinary publicity there would be few members of the community who would be unaware of the accused man or of the nature of the allegations made against him and that there has been extensive and repetitive reporting of the alleged involvement of the accused “with the drug industry and the gangland killings”, to quote Mr Grant.
It should be observed that Mr Strahan of counsel relies upon much the same facts in support of his argument that the likely impact of the publication of the plea of guilty and the sentence of the accused upon drug charges would not be so great as to displace the principle of open justice. Mr Strahan submits that amongst other things there has been legitimate reporting of the arrest and charging of the accused on the drug offences to which he has now pleaded guilty, on charges of murder and of the fact that the accused is “suspected by police of involvement with Melbourne’s underworld” and is “a known associate of persons said to have been murdered in connection with Melbourne’s underworld”.
However, Mr Grant submits that there is a particular prejudice which will arise by reason of the extensive publicity which will be given to the accused in relation to his plea of guilty to the drug charges and his sentence in relation thereto and the charges of murder which have been preferred against him. Mr Grant submits that in the forthcoming trials on the charge of murder the prosecution will allege that the motives for murder include “revenge and participation in the drug industry” and, furthermore, that at least one death was related to “drug debts”. Mr Morgan‑Payler QC concedes that the prosecution is in possession of statements to this effect. Thus, Mr Grant contends, the publication of the details of the current proceeding relating to drug trafficking by the accused, and the part played in it by him and the fact of his conviction and sentence, will “confirm in the eyes of the public the very motive to be advanced by the Crown for the murders” and “will place in the public domain” convictions of trafficking in not less than a commercial quantity of drugs of dependence. Mr Grant argues that these matters, together with the intensive publicity given to the accused man already, will make it “very difficult” for “any juror who has been subjected” to the publicity “to put it aside”. He relies upon the statement of Mason CJ and Toohey J in Murphy v R[10] where it is said:
“It may be said that there can be no guarantee that directions given by a trial judge in an effort to counter the effect upon a jury of media publicity will be successful. That is true just as it is true that there can be no guarantee that a juror may not have been influenced by other matters of which he or she has heard before the trial.”
[10]167 CLR 94 at 101.
The submissions of the media as to the principle of open justice
Both Mr Strahan and Mr Quill submit that the administration of justice contemplates that in certain cases significant publicity, including pre-trial publicity, will attach to its processes and that the fact of such publicity is not by itself, sufficient cause to necessitate an order being made under s.18 and s.19 of the Supreme Court Act. Mr Strahan referred to R v Glennon[11] and the statement of Winneke P and Ormiston JA contained therein:
“In cases such as this, where persons of dubious notoriety are brought to trial against the background of adverse publicity, there is a tendency to attribute too much frailty to a criminal justice system and to underestimate both the flexible mechanisms which it employs to avoid unfairness in the trial process, and the robust common sense and sense of duty of those who are called upon to administer it. The system is designed to operate in a society which cherishes the competing rights of freedom of expression and the right of a person, charged with serious offences, to a fair trial.”
[11][2001] VSCA 17.
Furthermore, it is submitted by Mr Strahan that whilst it is true that publicity can in some circumstances prejudice the fair trial of an accused, the administration of justice is, on balance , ordinarily assisted by the publication of reports of criminal proceedings. Mr Strahan relies upon the statement of Mason CJ in Hinch v Attorney‑General for the State of Victoria[12] which states:
“Reports of court proceedings are not a true example of the public interest in the administration of justice yielding to the public interest in freedom of discussion. Rather it is a case where on balance the wider interests of the administration of justice are thought, as the law currently stands, to be better served by allowing publicity.”
[12](1987) 164 CLR 15 at 26.
In this regard, it should be observed that extensive publicity has been given to the fact that the prosecution withdrew charges relating to separate allegations of drug trafficking against the accused and others alleged to have occurred in 1999, at the time of the entry of the plea of guilty to the matters now before me. An issue of public interest arises, by reason of balance, and an understanding by the public of the issues before the Court, by reason of that matter.
Furthermore, it is submitted by Mr Strahan that the time which will expire before the trial of the accused on murder charges is a relevant matter. Mr Strahan and Mr Quill both rely upon what they call “the six month rule” in referring to the decision of National Safety Council of Australia Victoria Division (in liq); re Friedrich[13] where Cummins J stated:
“It is likely that a jury trial would not occur within six months of the s.541 examination and probably that it would not occur for some 12 months. Taking the most favourable view to the submissions on behalf of Mr Friedrich of six months, I do not consider that members of the jury are likely to be prejudiced by media dissemination of evidence from that examination.”
[13](1989) 1 ACSR 64.
Although I do not accept that there is any such determinate thing as a “six month rule”, clearly there is a strong argument to say that the passing of time will limit the impact of any publicity. Mr Strahan relies particularly upon S.G. v DPP New South Wales[14] where an application for suppression was made in circumstances where the accused was charged with murder, and subsequently charged with offences under the Crimes Act (NSW), of making a false statement to police, which false statement was said to have been made to divert the murder investigation away from the accused. An application for suppression of the fact of the charge of making a false statement was made by the accused man on the basis that “if there were public knowledge of the allegations relating to the (making a false statement) charge, and evidence about it was rejected in the anticipated trial for murder, that trial would thereby be rendered unfair”. Grove J rejected that submission and stated[15]:
“If the postulated situation were to arise, I consider that the asserted risk, impliedly that jurors would be untrue to their oaths to try the issues on the evidence before them, would not outweigh the principles of open justice.”
[14][2003] NSWSC 413.
[15]At para 20.
The Cases
In R v Glennon, Brennan J (as then he was) quoted with approval[16] a passage by Jordan CJ (which was also quoted with approval by Lord Reid in Attorney‑General v Times Newspapers Ltd[17] where Lord Reid said: “I know of no better statement of the law than that contained in the judgment of Jordan CJ.”, namely:
“It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by‑product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.”[18]
[16]At 612.
[17](1974) AC 273 at 296.
[18]Ex Parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242 at 249-50.
In Ex parte Telegraph PLC and other appeals, Lord Taylor CJ, in giving the judgment of the Court, stated:
“In determining whether publication of matter would cause a substantial risk of prejudice to a future trial, a court should credit the jury with the will and ability to abide by the judge’s direction to decide the case only on the evidence before them. The court should also bear in mind that the staying power and detail of publicity, even in cases of notoriety, are limited and that the nature of a trial is to focus the jury’s minds on the evidence put before them rather than on matters outside the courtroom … “[19]
[19](1998) 2 All ER 971 at 978.
In John Fairfax Publications Pty Ltd and anor v District Court of New South Wales and ors[20] the New South Wales Court of Appeal refused to uphold an order of a district court judge ordering non-publication of a verdict on the basis that the publication might prejudice a later trial of the same accused. Although the decision also dealt with the issue of whether the District Court had power to make a non-publication order of the character made, the decision of Spigelman CJ contains a helpful summary of decisions relevant to the exercise of such power. His Honour said[21]:
“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 are to determine guilt only on the evidence before them.”
[20][2004] NSWCA 324.
[21]At para 103.
Spigelman CJ referred to the proposition stated by the Ontario Court of Appeal in R v Hubert[22]:
“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 render a true verdict according to the evidence”.
[22](1975) 29 CCC (2d) 279 at 291.
Spigelman CJ referred further to a statement of Kirby ACJ in R v Yuill[23]:
“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 court room, 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.”
[23](1993) 69 A Crim R 450 at 453 – 454.
Furthermore, as McHugh J said in Gilbert v R[24]:
“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.”
[24](2000) 201 CLR 414 at 425.
Conclusion
The principles are clear. The court has power to prohibit pre-trial publicity if there is a real or substantial risk that such publication will cause an interference with the administration of justice. The Court however will not prohibit the legitimate public discussion of matters of public interest and of what takes place in our courts unless such a serious real and substantial risk arises. The issue of the degree of risk must be judged in the context of the considerable confidence that courts have by reason of experience, that juries are responsible and do comply with the directions of trial judges and scrutinise the evidence before them unaffected by pre‑trial publicity, particularly when that publicity has taken place some time prior to trial.
I have given careful consideration to the particular prejudice upon which Mr Grant relies in relation to the connection between the conviction and sentencing of the accused upon drug trafficking charges which arise from events which occurred in early 2001 and the allegation of murder now made against the accused. However, in all the circumstances of the publicity already generated in this matter, I do not conclude that the publication of the plea and sentence in relation to such drug trafficking matters justifies the extraordinary course of suppressing the publication of such matters, for the period of time until the likely trial of the accused, which on any view will not take place before June of next year and in all probability will take place considerably later. I do not conclude that there is a high level of risk of prejudice to the trial, or that there is a real risk that serious prejudice will occur to the accused. I do not conclude that there is a real risk that a properly instructed jury will be prejudiced by such publicity to the exclusion of the evidence and diretions of the trial judge. Accordingly, the order made by me on 25 August 2004 prohibiting publication of the proceeding against the accused in relation to the drug trafficking charges to which he has pleaded guilty is vacated.
However, notwithstanding the conclusion that I express above it is, in my view, appropriate to note that there are a number of high profile cases coming before this Court in coming months. The material tendered before me demonstrates that some parts of the media are capable of being manipulated by a variety of persons with an interest in achieving publicity.
As Cummins J said in DPP v Williams and ors[25]
“It is essential that the media exercise care and good judgment in publishing material which relates to any accused person … The Court will not stand in the way of proper public debate about matters of high importance. However the Court will not permit a campaign of vilification in the media about individual persons who are the subject of trial proceedings. And, as I am sure all persons know, the Court has far‑reaching powers in relation to contempt, as well as powers in relation to prospective prohibition.”
[25]At para 25.
The closer a matter is to trial the greater the risk that the administration of justice will be affected by prejudicial pre-trial publicity and the media should take that matter into account in considering the far reaching powers of the Court in relation to contempt.
---
17
4
0