R v Will (No 3)

Case [2017] ACTSC 395


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    These Reasons not be published, other than to the parties, until the Conclusion of the Trial of Mr Will (as defined in the Orders made on 15 December 2017), except that they not be published to the members of the Prosecution Team (as also defined in the Orders made on 15 December 2017).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
Bell v Veigel [2008] NSWCA 36
Bilioara Pty Ltd v Leisure Investments Pty Ltd [2002] NTSC 44
Brennand v Hartung (No 3) [2015] ACTSC 149
Commonwealth Bank of Australia v Saleh [2007] NSWSC 903
Esposito v Commonwealth of Australia [2015] FCAFC 160; 235 FCR 1
O’Connor & Healy [2016] FamCAFC 111; FLC 93-716
Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393
R v Will [2017] ACTSC 356
R v Will (No 2) [2017] ACTSC 377
Sasterawan v Morris [2008] NSWCA 70

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:

  1. On 29 November 2017, I dismissed an application by David Will, the accused, for a stay of…

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AGLC
R v Will (No 3) [2017] ACTSC 395
Case
[2017] ACTSC 395
Decision Date

CaseChat Overview and Summary

The case of R v Will (No 3) involved the accused, David Will, facing criminal charges. The dispute centred on the administration of justice, particularly concerning the publication of evidence and the amendment of court orders to ensure a fair trial. The matter was heard in the Supreme Court of the Australian Capital Territory. The court had to address two main legal issues: the first concerned the non-publication of certain orders and the redaction of material to ensure the accused's right to a fair trial was protected, and the second involved the amendment of orders under the inherent power of the court and the slip rule as outlined in rule 6906 of the Court Procedures Rules 2006 (ACT). Additionally, the court considered whether an amendment to the reasons for judgment constituted a change in substance and whether an addendum should be published alongside the original reasons.

In addressing these issues, the court considered the importance of protecting the integrity of the trial process and the rights of the accused. It found that certain orders and reasons should not be published to the public or to the prosecution team to safeguard the trial's fairness. The court also determined that the amendment of orders could be made under the inherent power of the court and the slip rule, provided it did not alter the substantive outcome of the case. Regarding the reasons for judgment, the court ruled that while the original reasons should not be amended, an addendum should be added to correct an error noted in the previous reasons, ensuring transparency and accuracy in the judicial record.

The court's orders included amendments to specific court orders made on 15 December 2017 to ensure clarity and accuracy. Additionally, the court ruled that the reasons delivered on 29 November 2017 should not be amended but should be supplemented with an addendum to correct a factual error. These reasons were not to be published to the public or the prosecution team until the conclusion of the trial, safeguarding the accused's right to a fair trial. The final orders ensured that the administration of justice was conducted with due regard for the rights of the accused and the integrity of the trial process.

Orders

Orders of the court

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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