R v Williams No. Sccrm-03-66

R v WILLIAMS
[2003] SASC 330
Criminal

PERRY J. In a written application made pursuant to s 131 of the Supreme Court Act (1935) addressed to the Deputy Registrar of the Criminal Registry of this Court dated 8 September 2003, Mr Colin James, a journalist with The Advertiser newspaper, sought access to what are described in the letter as “reports by psychiatrists of James Nash house staff and copies of all orders pursuant to s 269 Criminal Law Consolidation Act (1935)” (“the Act”) concerning Lincoln Jason Williams, otherwise known as Badenoch (“Mr Williams”).
On the matter being referred to me, I convened a hearing in open court at which I heard Mr Hinton for the prosecution, Ms Waldron for Mr Williams and Mr Baker for Mr James and The Advertiser.
In 1997, Mr Williams was presented for trial in this Court before a judge and jury on a charge that between 9 May and 12 May 1993 at Adelaide he murdered Alan George Edward Kernot.
Mr Williams raised a defence of mental incompetence. The jury found the objective elements of the offence proved (s 269GA), but that Mr Williams was mentally incompetent to commit the crime of murder (s 269GB).
The trial Judge, Millhouse J, declared Mr Williams to be liable to supervision under Part 8A of the Act (s 269GB(3)(a)). He committed Mr Williams to detention at James Nash House.
Subsequently, on 3 July 1997, Millhouse J fixed a “limiting term” (s 269O(2)), namely the term of Mr Williams’ life.[1]
[1] On 18 December 1997, an appeal to the Court of Criminal Appeal against the limiting term fixed with respect to the supervision order was dismissed.
On 3 August 2000, Mr Williams was released on licence to reside in an open unit at Glenside Hospital, now known as Glenside Campus of the Royal Adelaide Hospital.
On 3 September 2001, a judge of this Court made an order varying the supervision order to allow Mr Williams to leave the grounds of Glenside Campus if accompanied by a member or members of staff at Glenside Campus.
By application dated 23 July 2002, the Director of Public Prosecutions on behalf of the Crown applied pursuant to s 269U of the Act for review of the applicant’s conditions of release on licence. The upshot of that was that Mr Williams was released again on licence by order dated 30 October 2002 subject to the same conditions as those which previously applied to him.
By an application filed on 7 March 2003, Mr Williams applied for variation of the supervision order and the conditions of release on licence.
That application came before me on 24 March 2003. Pursuant to s 269T(2)(a) of the Act, I ordered three reports to be prepared by different psychiatrists as to the mental condition of Mr Williams.
After considering the reports, on 18 August 2003 I made an order that Mr Williams be released on licence, subject to a number of conditions, including conditions that he:
–be subject to the directions of the Director of Extended Care Services at Glenside Campus and with his/her approval and at his/her discretion be permitted extended unaccompanied leave from Glenside Campus to reside in Mildura, Victoria;
–while residing in Mildura, comply with all directions given by the Director of Mental Health Services at the Mildura Base Hospital, and comply with all directions given to him by his community-based Case Worker;
–receive regular psychiatric review and continue to receive medication as required by his psychiatrist, and comply in every respect with the treatment plan prepared and in place pursuant to s 269Q(2) of the Act;
–be returned to James Nash House if the Director is of the opinion that he has breached any condition of the licence or is concerned that he might do so.
It is common ground that Mr James is entitled to access to the order which I made. The main focus of the present application is that he be given access to the reports which I had before me when considering Mr Williams’ application.
Access by members of the public, including representatives of the media, to documents forming part of the records of the court is governed by s 131 of the Supreme Court Act.
That section provides:
“(1)Subject to this section, the court must, on application by any member of the public, allow the applicant to inspect or obtain a copy of-
(aa)   any process relating to proceedings and forming part of the court’s records;
(a)     a transcript of evidence taken by the Court in any proceedings;
(b)    any documentary material admitted into evidence in any proceedings;
(c)    a transcript of submissions by counsel;
(d)    a transcript of the judge’s summing up or directions to the jury, in a trial by jury;
(e)    a transcript of reasons for judgment (including remarks made by the court on passing sentence);
(f)     a judgment or order given or made by the court.
(2)A member of the public may inspect or obtain a copy of the following material only with the permission of the court:
(a)     material that was not taken or received in open court;
(b)    material that the court has suppressed from publication;
(c) material placed before the court during sentencing proceedings (including material furnished under section 7 of the Criminal Law (Sentencing) Act 1988);
(d)    documentary material filed in connection with a preliminary examination;
(e)    a transcript of any oral evidence taken at a preliminary examination;
(f)     a photograph, slide, film, video tape, audio tape or other form of recording from which a visual image or sound can be produced;
(g)    material of a class prescribed by the regulations.
(3)The court may permit inspection or copying of material referred to in subsection (2) subject to any condition it considers appropriate, including a condition limiting the publication or use of the material.
(4)A decision by the court on an application under this section is administrative and is final and not subject to any form of review.
(5)The court may charge a fee, fixed by regulation, for inspection or copying of material under this section.”
Pursuant to s 131(1), Mr James has a right of access without any order or permission of the court to:
–the process relating to those proceedings, the initiating process being the information upon which Mr Williams was tried;
–the transcript of the evidence given at the trial;
–any documentary material admitted into evidence at the trial, which will include copies of any psychiatric reports and the like (to the extent that they remain on the court file);[2]
–a transcript of the submissions by counsel (which would include counsel’s address to the jury);
–a copy of Millhouse J’s summing up to the jury.
[2] After the time for appeal has expired, documentary exhibits received during the course of a criminal trial in this Court are returned to the Director of Public Prosecution, or other party responsible for tendering the exhibits. I have not perused the file to see whether any exhibits remain on file, or whether they have been returned.
As I have said, the main focus of the present application is to obtain access to the various reports which were considered by me before I made the order on 18 August 2003. Those reports were:
Harry Hustig (Director of Extended Care, Glenside Campus Mental Health Service, visiting psychiatrist):
2 June 2003
13 August 2003
Dr Les Koopowitz (senior consultant psychiatrist, RAH/Glenside Campus):
21 May 2003
Dr N.P. Nambier (consultant forensic psychiatrist, Forensic Mental Health Service, James Nash House):
6 June 2003
Mr Paul Sweeney (senior social worker, Forensic Mental Health Service, James Nash House):
21 May 2003
In opposing access to those reports, the submission made by Mr Hinton was to the effect that once the trial was completed, the further documents which were generated with respect to the various applications to which I have referred, including the application considered by me, do not answer to the description of any of the documents itemised in either of subs 131(1) and subs 131(2). He made the point that the psychiatric reports which were obtained in connection with the various applications which have been made to this Court subsequent to the trial, including the reports put before me, were not reports obtained and tendered by Mr Williams, but were ordered to be furnished pursuant to the relevant provisions of the Act. He contended that as such, they were not “documentary material admitted into evidence” (s 131(1)(b)). In effect, he submitted that those reports were sui generis, and were not accessible by reference to either s 131(1) or s 131 (2).
He conceded, however, that there was a residual discretion in the court to permit the release of the documents, given that the court is always in control of its own records.
Ms Waldron identified herself generally with the arguments put by Mr Hinton.
In my view, the reports do not fall within s 131(2), but within the meaning of s 131(1)(b) they constitute “documentary material admitted into evidence” in the proceedings, being the application heard by me for variation of the terms of licence.
The mere fact that the reports were prepared in response to a direction given by me does not mean that they cease to be “material admitted into evidence”. Although I did not mark the reports as exhibits, I clearly had regard to them in making the order on the application, and they should properly be regarded as “admitted into evidence” for that purpose. Furthermore, the application was dealt with by me at all times in open court.
It follows that Mr James has a right of access, and does not need leave or permission to view the documents.
If I was to be wrong in that view, and if the reports should properly be regarded as outside of the categories identified in both subs 131(1) and subs 131(2), I would exercise my discretion to give access to them to Mr James.
I would do so as I regard it as of the utmost importance that the proceedings of the Courts, so far as is consistent with the proper administration of justice, should be open to scrutiny by the public. Denial of access to the proceedings of the Courts and the Court’s record of those proceedings, should only be countenanced when there are compelling reasons for such a course to be taken. Denial of access has the potential to promote ill-informed and damaging speculation, and tends to erode public confidence in the system of justice.
Here, there is a substantial public interest in the reasons which prompted me to make the order which I did.
As is the usual practice in these cases, I did not give reasons for the order. In those circumstances I see no reason to deny access to the reports. To allow access will, hopefully, make it clear why I followed the course which I did, and will serve to indicate the very careful consideration which was given by the authors of the reports to the question of how best Mr Williams’ condition might be managed, in his interests and in the public interest.
I have anxiously considered the interests of Mr Williams. Naturally enough, public disclosure of any of the reports furnished as to his psychiatric condition raises question of personal privacy.
But his name and his association with the violent killing of Alan Kernot are already matters of public record. The medical reports and evidence given at the trial as to his mental state were not subject to any suppression order or other restriction on access by the media or other members of the public.
In those circumstances, allowing access (on the assumption that, contrary to the view which I have expressed, s 131(1) is not of application) to the reports in question will do no more than make plain the basis upon which his supervision order was varied, and allow public debate on the propriety of the order which I have made.
I have considered whether I should exercise my powers to make a suppression order under s 69A of the Evidence Act 1929. But even if there was evidence that Mr Williams’ mental health would be affected by allowing access to the reports and by publication of the circumstances of the variation of the release order, and there is no evidence in this case to that effect, there would be no power to make a suppression order: Advertiser Newspaper Ltd and Anor v V and Anor.[3]
[3] (2000) 211 LSJS 100.
As Doyle CJ observed in that case:
“7.... it seems to me to be an ordinary consequence of the public administration of justice that a person who appears before the Court, charged with an offence, may suffer adverse consequences from the consequent publicity”.[4]
[4] Ibid 101.
Since hearing argument in the matter, in The Advertiser newspaper of Monday 22 September 2003, an article by Mr James appeared under the heading “Violent criminals released into community”.
It is unfortunate that the word “criminals” was used, as Mr Williams was not found guilty of a crime. The outcome of his prosecution for murder was effectively an acquittal of that charge, coupled with an order for his supervised detention by reason of his mental condition.
For the reasons which I have given, I will give directions permitting Mr James to have access to the reports in question, if he still wishes do to so.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.    On 18 December 1997, an appeal to the Court of Criminal Appeal against the limiting term fixed with respect to the supervision order was dismissed.
2.    After the time for appeal has expired, documentary exhibits received during the course of a criminal trial in this Court are returned to the Director of Public Prosecution, or other party responsible for tendering the exhibits. I have not perused the file to see whether any exhibits remain on file, or whether they have been returned.
3. (2000) 211 LSJS 100.
4.    Ibid 101.

[2003] SASC 330

23 September 2003