Rayney v The State of Western Australia [No 8]
[2017] WASC 66
•15 MARCH 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: RAYNEY -v- THE STATE OF WESTERN AUSTRALIA [No 8] [2017] WASC 66
CORAM: CHANEY J
HEARD: 13 MARCH 2017
DELIVERED : 15 MARCH 2017
FILE NO/S: CIV 2177 of 2008
BETWEEN: LLOYD PATRICK RAYNEY
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Practice and procedure - Nonpublication order - Potential interference with witness' function as a magistrate - Open justice - Whether publication threatens public interest in proper administration of justice
Legislation:
Nil
Result:
Application for suppression dismissed
Category: B
Representation:
Counsel:
Applicant: Mr M L Bennett & Mr J D Maclaurin
Respondent: Mr T K Tobin QC, Ms R Young & Ms K A T Pedersen
Interested Party : Mr A V McCarthy
Solicitors:
Applicant: Bennett & Co
Respondent: State Solicitor for Western Australia
Interested Party : Mr A V McCarthy
Case(s) referred to in judgment(s):
Hogan v Hinch (2011) 243 CLR 506
J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10
John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131
Re Hogan; Ex parte West Australian Newspapers Ltd (2009) 41 WAR 288
Re Robins; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511
Russell v Russell (1976) 134 CLR 495
CHANEY J: The plaintiff seeks to have suppression orders made in relation to evidence to be given by the plaintiff's sister, Ms Raelene Johnston.
In essence, the application is to restrain publication of any matter which is likely to identify her occupation. The basis of the application is that the witness is now a magistrate working in a regional area as the sole magistrate in that district. She was not a magistrate at the time of any of the events in question and her current occupation has no apparent bearing on, or relevance to, her evidence.
The concern which is expressed is that her association with the plaintiff, and with the matters the subject of her evidence, may adversely impact on the ability of the witness to perform her functions as a magistrate. Concern is expressed that it is not appropriate for defendants or other court participants to know the intimate details of the witness' personal life and relationships, which are outlined in her evidence, and identification of her employment has the potential to create prejudice to the proper administration of justice.
The application is supported by the Chief Magistrate. While expressing confidence in the magistrate's ability to preside in cases in accordance with her oath, the Chief Magistrate is concerned that there is potential for participants in cases before her to falsely impute to her feelings of animosity with the Western Australian police force by reason of her involvement in the matters which provide the factual foundation of the action before me. The Chief Magistrate expresses concern that that perception may cause unnecessary applications for recusal being made to the witness, and complaints being made to him as head of the jurisdiction.
The application is grounded not on the basis of any adverse effect on the private or individual interests of the witness, nor on any question of embarrassment of the witness, but rather with respect to the public position and judicial functions of the witness, and the due administration of justice.
Beyond making some observations as to some practical issues, the defendant's position is that it consents to an order being made to suppress publication of the witness' occupation, but it neither consents to nor opposes a suppression order in respect of her name and image.
Counsel appeared for two media organisations, West Australian Newspapers Ltd and Channel Seven Perth Pty Ltd to oppose the making of any orders on this application.
General principles
The requirement for open justice, and the proposition that orders restricting publication of court proceedings should only be made in exceptional circumstances, are not in issue. Those propositions are well established. In Russell v Russell (1976) 134 CLR 495, 520 Gibbs J stated the general rule as follows:
It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted 'publicly and in open view'... This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character.
As French CJ observed in Hogan v Hinch (2011) 243 CLR 506 [20], the open court principle serves to maintain standards of independence and impartiality, but the principle is not absolute. McLure P, speaking of exceptions to the ordinary rule, in Re Hogan; Ex parte West Australian Newspapers Ltd (2009) 41 WAR 288 [33], said that exceptions are based on the balancing of competing public interests, and that it is not without significance that one uncontroversial and frequently applied exception to the ordinary rule is the protection of confidential commercial information. She explained:
The weight to be given to the interests of participants in the court process will vary according to the nature of the proceedings, the nature and effect of the prohibition in question, its connection with the core activity of court proceedings and the extent to which the rationale for the principle of open justice is or may be adversely affected [34].
Owen JA, in the same case said:
The principle of open justice reflects, protects and contributes to the fulfilment of this aspect of the public interest. But it would, in my view, be wrong to regard the principle of open justice as an end in itself. It is a means to an end; namely, to inform the public about the workings of the third arm of government and to ensure that courts and judges administer the justice system in a way that will maintain and foster its integrity, fairness and efficiency. Without in any way derogating from the proposition that exceptions to the principle of open justice are narrowly confined, each alleged infringement of the principle must be assessed according to its own facts and on its own merits and against the background of the reasons for which the principle exists.
As McLure P has remarked, this involves a balancing of myriad factors. And the weight to be given to such factors will vary according to the nature and [sic - of] the prohibition in question, its connection with the core activities of court proceedings and the extent to which the underlying rationale for the open justice principle may be adversely affected [50] ‑ [51].
Media organisations' submissions
Counsel for the media organisations placed considerable reliance on the decision of the Queensland Court of Appeal in J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45, and in particular the observation, which is found in a number of cases on this topic, that information may not be withheld from the public merely to save a party or a witness from loss of privacy, embarrassment, distress, financial harm or other 'collateral damage'. In that case, Fitzgerald P and Lee J said:
Finally, it is important to remember that what appears to be a more liberal approach involving the exercise of a discretionary power in the interests of an individual involves an erosion of fundamental rights and freedoms of the general public. The occasional misuse or abuse of these rights and freedoms or other disadvantages associated with public information and discussion, which is sometimes misinformed, together with any resultant harm are part of the cost of living in a free, democratic society. It is common for sensitive issues to be litigated and for information which is extremely personal or confidential to be disclosed. It is of obvious concern that such a paramount principle as the requirement of open justice should not be whittled away on a case by case basis according to individual judges' subjective views of the merits or demerits of the claims to privacy of individual litigants.
The media organisations submit that the concerns expressed by both the witness in her affidavit and the Chief Magistrate fall squarely within the category of disadvantages associated with public information, albeit sometimes misinformed, which should be treated as subservient to the general principle of open justice.
The orders sought
The plaintiff filed a minute of proposed orders. The first order sought was that the witness be addressed and referred to in court only by a pseudonym. In the course of submissions, the plaintiff did not press for that order.
The second order sought was that:
Any matter which is likely to lead to the identification of the witness (including her name, image and occupation) is not to be reported by those in court.
The third order sought was:
No photographs, film or video recording is to be taken of the witness in the court or within its precincts, and no drawings or other likenesses are to be made of the witness either in court or within its precincts.
In the course of oral submissions, the plaintiff's counsel accepted that the proposed order 2 was couched too broadly. The witness' involvement in matters relevant to the proceedings arises in the context of her relationship to the plaintiff, her brother. It is not contended that any of her evidence (apart from her name and occupation), or her relationship to the plaintiff, should be the subject of any suppression. Rather, as both the witness' affidavit and the letter from the Chief Magistrate make clear, it is the connection between the witness and her role as a magistrate that gives rise to the concerns of her ability to efficiently perform her functions in the administration of the law.
As the witness' affidavit reveals, her name and image were publicised as a result of the criminal trial of the plaintiff, notwithstanding an order by the trial judge at the criminal trial of the plaintiff in 2012 to suppress her then occupation. Her name and relationship with the plaintiff and the evidence which she gave at the criminal trial were referred to in the published reasons in the criminal trial and in the subsequent Court of Appeal decision on the appeal from the acquittal of the plaintiff. That previous publicity raises questions as to the utility of a suppression order, at least of any suppression of the witness' name. Although publication of her name may cause some people who know her as a magistrate, or who might come before her in her role as a magistrate, to learn for the first time of her relationship to the plaintiff, the extent of that risk is difficult to ascertain given the previous publicity she has received in connection with related matters and the many references to her in evidence given in the trial so far, and likely to be given in the course of the trial hereafter. In the circumstances, I do not consider that the witness' name should be suppressed.
In light of that conclusion, the issue for determination is whether there should be an order which suppresses information which identifies the witness' occupation, and to that end, whether there should be an order forbidding publication of any image of the witness on the basis that an image would give rise to potential recognition of her, by those who might appear before her, as a person holding the occupation which she does.
The threshold question
As noted above, the application is not made on the basis of any suggestion of embarrassment or personal disadvantage which might be suffered by the witness as a result of publication of her evidence. Rather, the question is whether her role in the proper administration of justice might be unnecessarily disrupted by the publication of information which identifies her role or enables people to recognise her as the person performing the role of a magistrate in the regional area in which she works. If that is so, then it is necessary to consider whether the public interest in avoiding that disruption outweighs either the public interest underlying the principle of open justice, or the public interest in the freedom of the press.
The witness acknowledges, in her affidavit, that her relationship to the plaintiff is known amongst lawyers who appear before her. There is no suggestion that that has caused any undue difficulties with unnecessary applications for recusal or has given rise to any complaints to the Chief Magistrate notwithstanding that she has previously given evidence in related matters, which evidence has been the subject of publicity in the past. That may be because the evidence previously given predated by some considerable time her appointment as a magistrate. The substance of the concern appears, however, to be a fear that enabling the large numbers of accused persons and other litigants who appear before the witness in her capacity as a magistrate to know the intimate details of the matters in respect of which evidence is to be given, and to associate that evidence with the person before whom they are appearing, will prejudice the proper administration of justice.
It is necessary to examine the way in which it is said that knowledge of the witness' relationship with the plaintiff, and of matters about which she gives evidence, may impact on the proper performance of her functions as a magistrate. There are essentially three reasons put forward in support of the application. First is that proceedings may be interrupted by unjustified applications for recusal, especially in light of evidence to be given by the witness concerning the conduct of police in the investigation of Mrs Rayney's murder. It is not easy to see how any such application could be successful. If there were grounds for recusal, it would clearly not be in the public interest to suppress the basis upon which an application could be made. If, as is far more likely, an application for recusal was without merit, it can be dealt with quickly and without excessive disruption to the proceedings. It might be expected that once the question of recusal had been dealt with on a few occasions, disposing of future applications, if litigants are to persist in making them, would be easily dealt with.
The second basis is a concern that the Chief Magistrate may receive complaints about the witness by reason of matters arising from her evidence. The same observations can be made about this concern as I have made about recusal applications. I do not consider that the risk amounts to a significant interference with the proper administration of the law.
The third basis is said by the witness as a concern that 'for the sake of decorum', court participants should not know details of her personal life and relationships. Counsel for the plaintiff submitted that the reference to 'decorum' is a reference to the decorum of judicial proceedings. Beyond the questions of recusal applications or complaints, it seems to me that this concern is essentially a concern as to privacy. In John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131, 143, Kirby P, in a passage cited with approval in Re Robins; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511, 515, said:
A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.
While I am sympathetic to the witness' concern that litigants before her should not be distracted by knowledge of her private life, I do not consider that the loss of privacy that inevitably flows from giving evidence in open court provides a basis to interfere with the public interest in open justice and a free press. In the absence of any serious impediment to the witness' capacity to perform her function, the witness should not be treated any differently than other witnesses simply on the basis of her position and the fact that she is engaged in the administration of the law.
I am mindful that the witness' present occupation is irrelevant to her evidence and that a fair report of these proceedings does not require disclosure of her occupation. In those circumstances one might hope that the media would respect the witness' privacy by not reporting her occupation. Her draft witness statements do not contain a reference to her occupation, although it may be that her occupation might be lead in oral evidence. If not, then there is a question, which it is not necessary for me to answer, as to whether the court's inherent power extends to restraining publication of information about a witness that is unrelated to the witness' evidence. Even if the witness was to mention her occupation in evidence, the reach of any order restraining publication of her occupation in connection with her evidence at trial is uncertain. For example, were there to be an application by a litigant before her for recusal for reasons connected with her evidence at trial, would a report of that application breach the order? Thus, even if the balance of public interest favoured suppression of her occupation, the formulation of an appropriate order would be difficult.
Although I acknowledge that the principle of open justice is not absolute, the facts of this case do not provide a basis to interfere with the unfettered access of the public to information concerning the proceedings. In the circumstances, I do not propose to make the orders sought on the application, or any other suppression order.
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