R v Will (No 2)
[2017] ACTSC 377
•15 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Will (No 2) |
Citation: | [2017] ACTSC 377 |
Submissions Dates: | 7, 8, 11 December 2017 |
DecisionDate: | 15 December 2017 |
Before: | Refshauge J |
Decision: | 1. The parties be heard on the proposed orders. |
Catchwords: | PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURT AND JUDGES – Judgments and orders – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – Confessions and admissions – access of prosecution team to evidence – transcript of compulsory examination and previous evidence given at a trial to be quarantined from prosecution team – certain affidavits and exhibits subject to a non-publication order – reasons partially redacted |
Legislation Cited: | Australian Crime Commission Act 2002 (Cth), ss 30, 30(5) Evidence Act 2011 (ACT), s 128 Court Procedures Rules 2006 (ACT), rr 2903, 4053 |
Cases Cited: | David Syme & Co Ltd v General Motors–Holden’s Ltd [1984] 2 NSWLR 294 Director of Public Prosecutions (Cth) v Galloway (A Pseudonym) [2017] VSCA 120 Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions [2017] HCATrans 238 |
Parties: | The Queen (Crown) David Will (Accused) Commonwealth of Australia (Intervener) |
| Counsel Dr K Weston-Scheuber (Crown) Mr S Whybrow (Accused) Ms S Maharaj SC (Intervener) | |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Accused) Australian Government Solicitor (Intervener) | |
File Number: | SCC 86 of 2015 |
REFSHAUGE J:
The accused, David Will, has been charged with aiding, abetting, counselling or procuring an aggravated robbery of certain employees of Chubb Security Services Ltd who were collecting cash from the Mawson Club at Herd Street, Mawson, in the Australian Capital Territory on 10 May 2004.
On 29 November 2017, I dismissed an application by Mr Will for a permanent stay of the indictment by which Mr Will had been charged with the offence: R v Will [2017] ACTSC 356.
Mr Will had been examined by the Australian Criminal Intelligence Commission (the Commission), a body established by the Australian Crime Commission Act 2002 (Cth). During the examination, Mr Will was required to answer questions and was prohibited by s 30 of that Act from declining to answer any question on the ground that the answer might tend to incriminate him or render him liable to a penalty.
Mr Will did answer some questions which he considered might incriminate him in relation to the aggravated robbery at Mawson.
Subsequently, Mark Munro was charged with committing the aggravated robbery and, on his plea of not guilty, was tried by a judge and jury. Mr Will gave evidence at the trial, based on the evidence he had given to the Commission. Mr Will was required to answer questions at the trial, even though he initially declined to do so on the ground that the answers might tend to incriminate him. Mr Munro was convicted by the jury at the trial.
The trial judge gave Mr Will a certificate under s 128 of the Evidence Act 2011 (ACT) in respect of the evidence he had given after he was directed to answer the questions asked of him, despite initially declining to do so on the ground of the risk of
self-incrimination.
When I dismissed the application that Mr Will had made for a stay of the indictment, I requested submissions on the consequential orders I should also make.
This was because, while I did not consider that the trial of Mr Will would be so fundamentally unfair that the indictment should be stayed, I also considered that this was because provision could be made otherwise than by granting a stay to ensure the fairness of the trial by, in particular, quarantining certain information from the Crown prosecutor, any supporting prosecutors and any assisting paralegal staff engaged in the trial of Mr Will. The quarantined information was the evidence that Mr Will gave both before the Commission and at the trial of Mr Munro.
Proposed Orders and Other Issues
In R v Will at [427], I set out a summary of the appropriate precautions that I considered should be taken.
When handing down the decision, I also circulated to the relevant parties some draft orders as follows:
1. The application for a stay be dismissed.
2. No prosecutor or prosecutors, instructing solicitor or solicitors, and any assisting paralegals be permitted to be directly involved in prosecuting Mr Will for any offence arising out of or in connection with the aggravated robbery at Woden on 10 May 2004 who has, has had or will have until the conclusion of the trial, any access to the transcript of his compulsory examination on 21 May 2010, any reports of the evidence given by him, made to the other persons who were present at that examination or who have seen the transcript of it, nor to any access to the transcript of the evidence given by Mr Will at the trial of Mr Munro or to any reports by other persons of what Mr Will there said.
3. The prosecutor must so certify on behalf of himself or herself and the solicitors and paralegals instructing and supporting him or her to the trial judge that the conditions in Order 2 have been met and undertake that, until the conclusion of the trial, will be met.
4. This order does not prevent Mr Will making an application on proper grounds for any or all of the evidence of Detective Sergeant Michel Laverty or Kyle Williams not to be admitted in evidence at the trial should it be shown that its admission would be unfair.
5. This order does not prevent Mr Will making a further application for a stay of the proceedings if further evidence shows that there is a basis for a court finding that the trial will suffer a fundamental defect which cannot be remedied by direction or other decision of the trial judge.
6. Except by order of a judge, these reasons not be published until the conclusion of the trial of Mr Will in relation to the aggravated robbery at Woden on 10 May 2004, any appeal arising from that trial and any retrial arising from that appeal.
Order 1 was made as proposed, but I invited counsel to consider the other orders in the light of my reasons then published and to endeavour to agree on the terms of the ancillary or consequential orders that were to be made. They sought some time to do so.
At the hearing, however, an additional issue arose as to access to the reasons that I delivered when dismissing the application for a stay.
Ordinarily, the reasons for many pre-trial decisions are not published other than to the parties, at least, until the trial is concluded. See, for example, R v Djenadija (No 2) [2015] ACTSC 59. Such a non-publication order might apply until any appeal from the trial had been determined and any re-trial required by the appeal court has been concluded, and may include, any appeal from that re-trial was determined.
That was appropriate in this case, but the nature of the reasons meant that a further restriction may be required. Though the Crown (through the Director of Public Prosecutions) was a party to the proceedings, there was a need to prevent details of the evidence Mr Will had given before the Commission and at the trial of Mr Munro being available to the prosecutors and support staff who would conduct the trial of Mr Will. I will call those persons in these reasons “the prosecution team”. As I explained in R v Will at [414], though in respect of the evidence Mr Will had given at the trial of Mr Munro, such access to the reasons “would permit the prosecution at [Mr Will’s] trial to know indirectly what they cannot, if I implement my proposal to know directly”. This seemed to apply also to the reasons I had delivered.
Thus, it was necessary to consider the extent to which the reasons published in R v Will should be available to the prosecution team.
I noted in R v Will at [158], that an application for special leave to appeal had been made to the High Court from the decision of the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v Galloway (A Pseudonym) [2017] VSCA 120. This was a decision relevant to the issues I had to decide and to which my attention had been drawn by the Crown. Special leave has now been granted sub nomine Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions [2017] HCATrans 238. It was submitted that the reasons in R v Will should be available to counsel in those proceedings, because some of the issues were similar to those I had addressed.
Finally, I considered additionally that the evidence that had been adduced on the application for a stay should also be subject to some restriction on publication. Again, this material included some material that could disclose the evidence Mr Will had given to the Commission and at the trial of Mr Munro. Indeed, annexed to certain affidavits was relevant transcript material.
Submissions
Counsel for the Crown and for Mr Will did confer. As would be expected from experienced and conscientious counsel, those discussions proved fruitful, though there remained some issues on which agreement could not be reached, necessitating these reasons.
The submissions largely accepted the proposed orders, though with some modifications. In particular, both parties agreed that the prosecution team should be made aware of the fact that Mr Will had been examined by the Commission and had given evidence at the trial of Mr Munro. They also agreed that this included the various challenges and issues raised on the application made to me. This, of course, could be provided by giving access to the reasons for my decision.
It was agreed, however, that the prosecution team should not be given an unredacted version of the reasons in R v Will. Generally, there was agreement about the extent of the redactions, though Mr Will’s counsel sought the redaction of a paragraph and two other sentences which the Crown submitted should not be redacted.
The other issue was that the Crown considered that the prosecution team should know that:
(a) Mr Will initially gave a false version of events in the compulsory examination;
(b) He subsequently made admissions during the compulsory examination; and
(c) He was cross-examined on material from the compulsory examination during the Will trial.
Mr S Whybrow, counsel for Mr Will, submitted that the prosecution team should not be told these matters.
The submissions for the parties were helpfully summarised as follows:
Mr Whybrow’s position is that if the prosecutors were provided with that material it would give them indirect knowledge of the contents of (or parts thereof) of what the compulsory examination and the evidence given in Munro trial entailed. Quarantining the prosecution from this information was the basis upon which His Honour held a fair trial was still possible and rejected the stay application.
The Crown’s position is that it does not offend against the principles referred to in his Honour’s judgment for the prosecutors to know (a) to (c) and may assist them in being able to manage their obligations during the trial e.g. in being alert to the possibility of witnesses giving evidence that may reveal material that should properly be excluded from the jury.
As to the reasons in R v Will, Mr Whybrow submitted that the following paragraphs should be redacted from any copy of the reasons given to the prosecution team:
[16], [46], [51], [52], [53], [54], [55], [61]-[63], [73]-[74], [104], [110], [136]-[138], [257], [258], [259], [282], [382].
The Crown submitted that [46] and the second and third sentences in [282] should not be redacted.
Consideration
Access of “prosecution team” to evidence
In the light of the agreement of the parties, I am content to accept that members of the prosecution team for the trial of Mr Will for aiding, abetting, counselling or procuring the aggravated robbery of certain employees of Chubb Security Services Ltd at the Mawson Club on 10 May 2004, may be and may be made aware of the fact that Mr Will was examined by the Commission and that he gave evidence at the trial of Mr Munro for that aggravated robbery.
I am, however, satisfied that it is not appropriate for them to know directly or indirectly what Mr Will said on either of those occasions.
It is, however, appropriate for members of the prosecution team to be reminded that the evidence given on these occasions is also subject to a statutory prohibition under s 30 of the Australian Crime Commission Act in the one case and s 128 of the Evidence Act in the other.
Accordingly, an order in the form of order 2, appropriately modified to account for this agreement should be made.
Access of “prosecution team” to knowledge of Mr Will’s engagement
There was disagreement between the parties as to whether members of the prosecution team should have knowledge of, not merely the facts that Mr Will was examined before the Commission and at the trial of Mr Munro, but the general effect of that evidence.
The Crown submitted that this did not offend the principles on which I based my decision that the members of the prosecution team should not have access to that evidence. It also submitted that it may assist the members of that team to ensure that witnesses they call do not reveal that which is prohibited from being adduced.
As to the first issue, I am satisfied that the three items of information set out above (at [21]) do, in fact, fall within the prohibition I had envisaged.
I accept that they are at a “high level” of generality which goes not much further than knowledge that Mr Will was examined on those two occasions, but it does seem to me to trespass into the area where the fair trial may be prejudiced. While it does not deal with specific evidence, it does give the members of the prosecution team an insight into the dynamics which is likely to give them a forensic advantage, especially in the unlikely, but not inconceivable, event that Mr Will gives evidence at his trial.
As to the need to ensure that witnesses do not inadvertently breach their obligations not to reveal what Mr Will said on either of these relevant occasions, protected respectively by s 30(5) of the Australian Crime Commission Act and s 128 of the Evidence Act, there was no explanation of how that might occur.
Given the requirement to draw these statutory provisions to the attention of the members of the prosecution team as I noted above (at [26]), I am unable to see why they would need further information: cf R v Will at [407].
Because of the statutory prohibition, neither Detective Sergeant Michael Laverty and Kyle Williams, who were present at the examination in the Commission, can give any evidence of what was there said and, as in one case a serving police officer, and in the other as a former police officer, they would be expected to know that. No doubt, conscientious prosecutors would ensure that, without needing to know the actual evidence adduced, no such evidence would be adduced.
It seems unlikely that either Detective Sergeant Laverty or Mr Williams heard Mr Will’s evidence given at the trial of Mr Munro, though they may have read the transcript. Again, they should be aware of their obligations under s 128 of the Evidence Act in this regard, and I would, because of their police experience, expect them to know that and that conscientious prosecutors would be alert to this issue and remind them, if necessary, of their obligations under the relevant statutes.
I do not know whether Mr Munro is to give evidence. He, of course, heard Mr Will’s evidence at his own trial. If he were minded to inculpate Mr Will, he would not need to repeat any evidence given at his trial, but would give evidence of events, conversations and conduct in which he was directly involved. Nevertheless, conscientious prosecutors who proposed to call Mr Munro would also ensure that Mr Munro was aware of the relevant statutory prohibition.
In any event, I would expect defence counsel would be acutely aware of the risks of a breach of any such prohibition. Defence counsel has access, not only to the broad information suggested by the Crown to be given to the members of the prosecution team, but also the transcript of both these pieces of evidence. Defence counsel would object if any breach was at risk of being committed.
I am not satisfied that the information requested by the Crown should be made available to members of the prosecution team.
Access of “prosecution team” to reasons for judgment
I am not convinced that the members of the prosecution team need the reasons I published in R v Will. I accept, however, that they should not necessarily be prevented from having access to those parts of the reasons that will not undermine the prohibition on them having access to the evidence Mr Will gave to the Commission and at the trial of Mr Munro, which prohibition I have found is necessary for a fair trial of Mr Will.
Thus, I will order, not that they be provided with a copy, but that they may have access to a copy. That copy, however, must be redacted.
In the event that I decided as I have about the general effect of the evidence of Mr Will above (at [30]-[40]), there was agreement between the parties as to the paragraphs of my reasons in R v Will that should be redacted apart from one paragraph and two other sentences.
The disputed paragraph was Mr Will’s description of the commencement of the examination. While I think the risk to a fair trial by the members of the prosecution team learning of this material is marginal, it was a significant matter in the hearing of the stay application before me. I consider that the paragraph should also be redacted.
The disputed sentences occurred in a paragraph of three sentences. The Crown did not object to the redaction of the first sentence. I agree that there is nothing in the second and third sentences the knowledge of which by members of the prosecution team would risk the trial of Mr Will being unfair. Accordingly, they do not need to be redacted.
Access to the reasons for judgment
Ordinarily, proceedings in courts are held in open court to which the public has free access. There are good reasons for this as referred to in R v Meegan [2014] ACTSC 263 at [7]-[16].
The proceedings in this case were held in closed court, a precaution that a court may take in specified circumstances to protect the administration of justice. Even where proceedings are heard in closed court, however, the court should not automatically prohibit the publication of the orders made: David Syme & Co Ltd v General
Motors–Holden’s Ltd [1984] 2 NSWLR 294 at 299. The orders that a court makes, even after a hearing in closed court, and the reasons for those orders, should ordinarily be made available to the public unless to do so would disclose information the non-disclosure of which justified the proceedings being heard in camera: National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217 at 222.
Ordinarily, such non-publication orders made to protect the orders or reasons for decision should be temporary and end when the basis for secrecy no longer requires it: National Companies and Securities Commission v Bankers Trust Australia Ltd at 222.
I have already considered the width of distribution of the reasons in R v Will. That is proposed order 6. The risk there is, of course, that a member of the jury may read the reasons and form an inappropriate view of Mr Will, or, indeed, misunderstand the nature of the proceedings before me to the prejudice of Mr Will. That justifies a non-publication order in respect of those reasons.
On the other hand, it seems to me that, while the reasons I am now delivering contain little that may risk the fairness of the trial of Mr Will directly, they inevitably imply the existence of the earlier reasons and thus may lead to unhelpful speculation. I consider that these reasons should also be the subject of a limited non-publication order.
The Commonwealth, however, sought a relaxation of the non-publication regime in relation to the reasons in R v Will. The submission was as follows:
The Commonwealth may wish to provide a copy of his Honour’s judgement to its legal team in the Galloway High Court matter, which is proceeding to hearing in the new year. We would wish to ensure that this did not offend his Honour’s proposed orders (particularly order 6). The purpose of doing this would be to assess whether it should be brought to the High court’s attention in some form (noting this may require further orders pursuant to proposed order 6).
No other party objected to this proposal. It seems to me, however, that in such proceedings the principle of equality of arms requires that counsel for all parties in those proceedings should have access to the reasons if any have it. I will, accordingly, extend the exception to the non-publication order to meet that desirable outcome.
The Commonwealth proposed the following order:
The Commonwealth is permitted to publish these reasons to counsel for the Commonwealth in the High Court of Australia matters of Strickland M168/17, Galloway M174/17, Hodges M175/17 and Tucker M176/17, upon those counsel giving an undertaking not to further disclose it except by order of a judge.
In general terms, I agree that this is an appropriate order, but I have one difficulty. It is not clear to whom the undertaking is to be given and, thus, how any breach might be sanctioned, not that for one minute I would expect any breach.
To be enforceable, other than as an inter partes arrangement (which may be unenforceable without consideration) an undertaking must be given to the Court. While this appears to be inferred from decisions such as Oswal v Burrup Holdings Ltd (No 2) [2012] FCA 1187; 208 FCR 425, there is no direct authority to that effect, but I consider it to be clearly so. It seems to me to be clear that an undertaking to be enforceable has to be given to the Court. In this case, however, I would not expect counsel to attend this Court personally to give the undertaking required.
I considered whether an order of the Court would be sufficient, but there are problems about the extra-territorial reach of non-publication orders. See, for example, R (On the Application of the Director of Public Prosecutions for the Commonwealth of Australia) v Nationwide News Pty Ltd [2008] VSC 526; 22 VR 116.
I think that the simplest way to deal with this is to require a simple written undertaking to be given which can then be filed in the Court.
Access to the evidence on the application
Finally, as is clear from R v Will at [37], [55], [75], [79], [103] and [180], a number of witnesses filed affidavits and these affidavits included annexures amongst which were the transcript of the evidence given by Mr Will to the Commission and at the trial of Mr Munro.
While the proceedings were heard in closed court, rr 2903 and 4053 of the Court Procedures Rules 2006 (ACT) do not restrict access to the affidavits that have been read there without a formal court order.
Thus, unless subject to an express non-publication order, the evidence given in such proceedings, either by affidavit which is read or exhibits tendered and admitted, may be inspected; though there may be no right to inspect exhibits unless they are filed and, therefore, amenable to inspection under r 4053 of the Court Procedures Rules. See R v Jovanovic [2014] ACTSC 98; 285 FLR 108 at [18]-[26].
In addition, as noted in R v Will at [112], a large number of documents, most of which were copies of documents, were produced on subpoena from the Australian Federal Police, the Commission and the Director of Public Prosecutions. Some of these documents were then admitted as exhibits. They included references to what happened in the hearing before the Commission where Mr Will gave evidence.
Not all the documents produced on subpoena were admitted into evidence. In relation to at least some, an uncontested claim for public interest immunity was made.
In relation to the documents produced on subpoena, they should, in my view, be returned to the addressee of the respective subpoenas.
In relation to the affidavits and documents admitted as exhibits in the proceedings, I consider that they should, at least until the proceedings against Mr Will have concluded, be subject to a non-publication order, that is to say, not be available for inspection or disclosure without an order of a judge.
The documents produced on subpoena, save, insofar as such documents themselves (as opposed to the copies of them), have not been admitted as exhibits in the proceedings, should be returned to the persons or agencies that produced them.
The parties did not object to these proposals.
Disposition and Orders
I have already dismissed the application for a stay.
I have sought submissions from the parties on the consequential orders that I consider necessary to justify dismissal of the application, without which the trial of Mr Will may be unfair.
Having received those submissions, I have now drafted orders which I consider represent the requirements needed to ensure that the trial of Mr Will will not be unfair.
As they are complicated, I will provide a final opportunity for the parties to consider them and make any final submissions about their final form.
The orders I propose are as follows:
1. In these orders:
Aggravated Robbery Offence means the offence with which David Will has been charged, namely aiding, abetting, counselling or procuring the aggravated robbery of certain employees of Chubb Security Services Ltd at the Mawson Club, Herd Street, Mawson in the Australian Capital Territory on 10 May 2004;
Conclusion of the Trial of Mr Will means the last of the happening of the following events: the acquittal or sentencing of David Will for the Aggravated Robbery Offence after any trial or re-trial; the delivery of judgment in any appeal from the conviction of David Will for the Aggravated Robbery Offence;
Prosecution Team means the Crown prosecutor briefed or otherwise employed to prosecute David Will for the Aggravated Robbery Offence at any trial or retrial and also any other counsel, solicitor or prosecutor briefed or retained or employed to appear with, to instruct or to assist the Crown prosecutor in either the preparation or conduct or both of the trial or retrial and any paralegal staff member employed to assist directly in either the preparation or conduct or both of the trial or retrial;
Reasons means the reasons for decision in R v Will [2017] ACTSC 356 delivered on 29 November 2017;
Reasons (No 2) means the reasons for decision in R v Will (No 2) [2017] ACTSC 377 delivered on 15 December 2017.
2. Save as otherwise provided in these orders, no person may be permitted, save by order of a judge of this Honourable Court, to be a member of the Prosecution Team who has, has had or will have, until the Conclusion of the Trial of Mr Will, any access to the evidence given at the compulsory examination of David Will before the Australian Criminal Intelligence Commission on 21 May 2010, any reports of that evidence given by him made by the other persons who were present at that examination or who have seen the transcript of it, nor any access to the transcript of the evidence given by David Will at the trial of Mark Munro for the aggravated robbery of certain employees of Chubb Security Services Ltd at the Mawson Club, Mawson, in the Australian Capital Territory on 10 May 2004 or any reports by other persons of what David Will there said, nor any access to any of the affidavits or exhibits referred to in Order 8.
3. Order 2 does not prevent any member of the Prosecution Team from knowing or being aware of the following facts only: that David Will gave evidence and was examined before the Australian Criminal Intelligence Commission on 21 May 2010 and that he gave evidence at the trial of Mark Munro as identified in Order 2.
4. At the beginning of the trial of David Will for the Aggravated Robbery Offence, the Crown Prosecutor must certify to the trial judge presiding at the trial that, in respect of each member of the Prosecution Team, the conditions in Order 2 have been met and undertake, that, until the Conclusion of the Trial of Mr Will, those conditions will be met.
5. Subject to Orders 6 and 7 and to any contrary order of a judge of this Honourable Court, the Reasons not be published until the Conclusion of the Trial of Mr Will, other than to the parties and to the Australian Commission for Law Enforcement Integrity, which Commission must not publish them to other than any of its members or employees who have a proper reason to know the contents of them.
6. Any member of the Prosecution Team may have access to a copy of the Reasons provided those Reasons have been redacted by the deletion from any such copy of the following paragraphs:
[16], [46], [51]-[55], [61]-[63], [73]-[74], [104], [110], [136]-[138], [257]-[259], [382], and the first sentence of paragraph [282];
7. The Commonwealth may provide a copy of the unredacted Reasons to any counsel or instructing solicitor appearing for or instructed by any party to the proceedings in the High Court of Australia in proceedings between Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions; Galloway (A Pseudonym) v Commonwealth Director of Public Prosecutions; Hodges (A Pseudonym) v Commonwealth Director of Public Prosecutions; Tucker (A Pseudonym) v Commonwealth Director of Public Prosecutions, proceedings numbered M168/17, M174/17, M175/17 and M176/17 provided that, prior to receipt of any such copy, the Commonwealth obtains a written undertaking in the following form:
I [full name] undertake to the Supreme Court of the Australian Capital Territory that, upon receipt of a copy of the Reasons for Judgment of Justice Refshauge dated 29 November 2017 in the matter of R v David Will, judgment number [2017] ACTSC 356, I will not disclose those Reasons to any person without a prior order of a Judge of that Court
and files that signed undertaking in the Registry of this Honourable Court.
8. The following Affidavits and Exhibits on the court file of the proceedings for the hearing of the Application in Proceedings filed by David Will dated 9 June 2016, seeking, inter alia, a stay of the proceedings against Mr Will for the Aggravated Robbery Offence, not be available for inspection by any person, including any party, save by order of a judge of this Honourable Court:
Affidavits of David Allen Will affirmed 17 June 2016; Affidavit of Darryl Raymond Perkins affirmed 25 January 2017; Affidavit of Darryl Raymond Perkins affirmed 14 February 2017; Affidavit of Timothy Mark Fernandez affirmed 24 February 2017; Affidavit of Michael Laverty affirmed 24 February 2017; Affidavit of Robert Duncan Grant, sworn on 18 July 2017.
Exhibits marked A, B, C, D, and E and Exhibit 1.
9. The Reasons (No 2) not be published until the Conclusion of the Trial of Mr Will except by order of a judge of this Honourable Court.
10. Nothing in these orders is intended to prevent David Will from making any further applications for a stay of the proceedings against him for the Aggravated Robbery Offence if further evidence or the happening of any events shows that there is a basis for a court finding that that or any trial for the Aggravated Robbery Offence will suffer a fundamental defect which cannot be remedied by direction or other decision of the trial judge.
Rather unusually, I provided a copy of these proposed orders, which were foreshadowed but which also resolved some issues that were in controversy between the parties, to the parties prior to delivery of these reasons. There are, it seems to me, some mode of the implementation of the orders which I may not know and which could require modification. Rather than delay further, it seemed to me preferable to seek submissions on the precise terms of the orders when delivering these reasons.
| I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 15 December 2017 |
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