R v Will (No 3)
[2017] ACTSC 395
•22 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Will (No 3) |
Citation: | [2017] ACTSC 395 |
Submissions Date: | 15 December 2017 |
DecisionDate: Reasons Date: | 15 December 2017 22 December 2017 |
Before: | Refshauge J |
Decision: | 1. These orders be made in Chambers. 2. The orders made on 15 December 2017 be amended as follows: (i) In Order 2, the words “the evidence given at” be inserted immediately before the words “the compulsory examination of David Will”; and (ii) In Order 6, the words “but no access to Reasons (No 2)” be added at the end. 3. The reasons in R v Will [2017] ACTSC 356 delivered on 29 November 2017 not be amended but the following addendum be added to those reasons: Addendum The Court’s attention was drawn to an error in [402] in that, contrary to what is there asserted, the Crown counsel did in fact have access to the transcript. See R v Will (No 3) [2017] ACTSC 395. 4. These Reasons not be published, other than to the parties, until the Conclusion of the Trial of Mr Will (as defined in the Orders made on 15 December 2017), except that they not be published to the members of the Prosecution Team (as also defined in the Orders made on 15 December 2017). |
Catchwords: | PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURT AND JUDGES – Judgments and orders – non-publication orders and redactions to ensure a fair trial for the accused PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURT AND JUDGES – amending orders – inherent power – slip rule – r 6906 of the Court Procedures Rules 2006 (ACT) PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURT AND JUDGES – power to amend reasons – whether amendment of substance – addendum to be published with reasons |
Legislation Cited: | Australian Crime Commission Act 2002 (Cth) Court Procedures Rules 2006 (ACT), r 6906 |
Cases Cited: | Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Bar-Mordecai v Rotman [2000] NSWCA 123 Todorovic v Moussa [2001] NSWCA 419; 53 NSWLR 463 |
Parties: | The Queen (Crown) David Will (Accused) Commonwealth of Australia (Intervener) |
Representation: | 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:
On 29 November 2017, I dismissed an application by David Will, the accused, for a stay of the proceedings by the Crown on an indictment charging him with aiding, abetting, counselling or procuring an aggravated robbery of certain employees of Chubb Security Services Ltd at the Mawson Club at Herd Street, Mawson, in the Australian Capital Territory on 10 May 2004: R v Will [2017] ACTSC 356.
I did so because, while there were matters raised during the hearing of that application that could have affected the fairness of the trial on the indictment, I considered that they could be prevented from fatally infecting a fair trial by the taking of appropriate action. That would involve quarantining from those persons retained or employed by the Director of Public Prosecutions to prosecute the trial (called “the prosecution team” in R v Will (No 2) [2017] ACTSC 377) certain information in relation to a compulsory examination of Mr Will by the Australian Criminal Intelligence Commission, established under the Australian Crime Commission Act 2002 (Cth), and evidence given by Mr Will at a criminal trial.
That required consequential orders to be made. I provided counsel for the parties with draft orders and requested consideration be given to those orders before they were made.
Counsel for the parties conferred appropriately and helpfully and I received submissions. Additional matters were raised and there were two points on which agreement could not be reached.
I considered the submissions and decided the issues on which agreement could not be reached: R v Will (No 2) at [30]-[45].
In a slightly unusual procedure in delivering my decision, the reasons for resolving a conflict between the parties having not then been delivered, I provided copies of the proposed orders, including as to the disputed matters, to the parties before delivery of the decision. The proposed orders were largely mechanical and administrative and involved a complexity and possibly an involvement of the day-to-day operations of the officers of the prosecution, which would benefit from some consideration of the detail before the orders were made. On delivery of the decision, I then sought oral submissions.
One matter was raised. It was raised by me but embraced by the parties. I had required the Crown prosecutor at the trial of Mr Will to certify the quarantining of the relevant information and to give an undertaking that those quarantine arrangements would continue until the end of the trial and any appeals.
The undertaking was, in the draft orders, to be given by the Crown prosecutor at the trial. It would, unless earlier discharged (as it could be for cause: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177-8), apply possibly beyond the period of the trial and in circumstances over which the Crown prosecutor would not likely have control. The Director of Public Prosecutions, the statutory officer, would not only have ultimate responsibility for the prosecution of the trial, but also the employment of the prosecutors and, if members of the independent bar, their briefing. It was more appropriate for the Director to give such an undertaking as to prospective access.
The parties had no other submissions as to the orders. I then pronounced the orders with the amendment substituting the Director for the Crown prosecutor as the person to make the relevant undertaking.
As an example of Murphy’s Law (Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 394), a matter later arose which the parties drew to my attention.
This further matter was access to the reasons of R v Will (No 2), which was intended not be distributed beyond the parties and the Commissioner for Law Enforcement Integrity. Distribution to the parties would, of course, mean to the Director of Public Prosecutions, which would possibly include lawyers and other staff in the Director’s office. Non-publication orders may rarely be limited only to the lawyers for the parties and sometimes even named or specified lawyers, but normally would, unless otherwise specified, not exclude the staff of the legal firm acting for a party from access to the suppressed information. Here, it was important that the “prosecution team” not receive a copy of those reasons.
The parties approached me after I adjourned, following the oral pronouncement of the orders, and requested that I clarify expressly that the “prosecution team” were not to receive a copy of the reasons in R v Will (No 2).
Immediately upon reading the message from the parties, it was clear to me that, had it been raised earlier, I would have clarified any inadequacy (see Bilioara Pty Ltd v Leisure Investments Pty Ltd [2002] NTSC 44 at [25]). It was clearly intended in the ninth order I made, but more usefully and clearly expressed in Order 6.
Accordingly, I was prepared to vary the order. It had not, at that stage, been entered as a formal sealed order. As noted in Brennand v Hartung (No 3) [2015] ACTSC 149 at [10]–[17], the precise time when an order is perfected or entered into the records of this Court is not clear in this jurisdiction; the making of a record on the Bench Sheet kept by the associate to the judicial officer making the order may be that time. In any event, I consider that the slip rule (r 6906 of the Court Procedures Rules 2006 (ACT)) would permit such an amendment.
I further noted a grammatical error by omission in draft order 2, which should have included the necessary words “the evidence given at” immediately before “the compulsory examination of David Will” to make the meaning clear and I took the opportunity to correct that omission also.
So that there would be clarity for the parties, I then arranged for the order now in a satisfactory form to be prepared and sealed in the Registry and distributed to the parties so that there could be clarity about what was actually ordered.
There is, it seems to me, no reason for the order itself to be subject to a non-publication order or otherwise suppressed. See R v Will (No 2) at [47].
Finally, counsel for the Crown raised with me when I delivered the reasons in R v Will (No 2) an error that I had made in R v Will at [402]. There, I noted that both I and Mr Will, through his counsel, had had access to the transcript of the compulsory examination referred to above (at [3]), but I then noted that the counsel for the Crown did not.
The basis on which I found that the Crown prosecutor did not have such access was unclear. I suspect that this was because I had made the assumption that the Crown’s counsel was to appear at the trial. When counsel then offered at the hearing of the application that the “prosecution team” would not have access to the transcript, I appear to have, incorrectly, inferred that counsel must not have had access to the transcript.
The inference I drew was incorrect and counsel for the Crown pointed this out to me in her earlier submissions. Inadvertently, I omitted to deal with this in R v Will (No 2). It was raised again at the short hearing when I delivered those reasons and ultimately made the relevant orders.
I did not deal with it then as I wished to consider the position carefully.
I accept that the conclusion of fact was wrong. Indeed, the affidavit to which a copy of the transcript was annexed was read in the hearing of the stay application without any suggestion that the annexure was somehow not in the hands of counsel for the Crown.
The question then is what to do about this? It is clear that reasons can be amended. I so concluded in Brennand v Hartung (No 3) [2015] ACTSC 149 at [29]. As I pointed out, this is not infrequently done, especially where reasons are delivered ex tempore or orally. Infelicitous expressions which are adequate communication orally of the court’s meaning may need clarification or refinement for the written version.
There are, however, limits to the extent to which such changes can be made. The usual test is that reasons can be revised “so long as the substance…is not altered”: Bar-Mordecai v Rotman [2000] NSWCA 123 at [193]. In Todorovic v Moussa [2001] NSWCA 419; 53 NSWLR 463 at 468; [46], the test was expressed as whether the amendment was “one of substance in fact”.
That is, of course, a question of judgment. I have looked closely at various decisions, including those discussed in Brennand v Hartung (No 3) at [29]-[50] as well as O’Connor & Healy [2016] FamCAFC 111; FLC 93-716; Esposito v Commonwealth of Australia [2015] FCAFC 160; 235 FCR 1; Sasterawan v Morris [2008] NSWCA 70; Bell v Veigel [2008] NSWCA 36 and Commonwealth Bank of Australia v Saleh [2007] NSWSC 903.
These are all helpful but not definitive as to whether the error I made can be amended in the reasons of R v Will.
Having carefully considered the matter, I have concluded that the changes to be made could be seen as one of substance; it is borderline. I consider the appropriate way to proceed is not to make a direct amendment to [402] but to direct that an addendum be added to R v Will, rather than a corrigendum, and it state:
Addendum
The Court’s attention was drawn to an error in [402] in that, contrary to what is there asserted, the Crown counsel did in fact have access to the transcript: see R v Will (No 3) [2017] ACTSC 395.
I also consider that, while nothing in these reasons themselves seems likely to risk a fair trial for Mr Will, they should not be published other than to the parties and, so far as the Crown is concerned, not to any member of the “prosecution team” until the current proceedings involving Mr Will have concluded.
I will so order. In the circumstances, I will make the orders in Chambers.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: |
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