Re Applications by Chief Commissioner of Police (Vic) for leave to appeal
[2004] VSCA 3
•12 February 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| IN THE MATTER OF AN APPLICATION BY CHIEF COMMISSIONER OF POLICE (VIC.) FOR LEAVE TO APPEAL |
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JUDGES: | WINNEKE, P., ORMISTON and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 October 2003 | |
DATE OF JUDGMENT: | 12 February 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 3 | |
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JURISDICTION OF COURT OF APPEAL – Limited “suppression orders” made by Judges of Trial Division, on application of Chief Commissioner of Police (Vic.), banning publication of particular “police evidence” in certain criminal trials – Jurisdiction of Court of Appeal to entertain Chief Commissioner’s application for leave – Supreme Court Act 1986, ss.17(1) and (2); 17A(3).
CRIMINAL LAW – Suppression orders banning publication of police evidence relating to techniques employed to obtain confessions – Power of Court to make “unlimited” orders consistently with “open justice” – Supreme Court Act 1986, ss.18 and 19.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr F.X. Costigan Q.C. and | Victorian Government Solicitor |
| For The Age Co. Ltd. (Intervening) | Mr D.P. Gilbertson | Minter Ellison |
WINNEKE, P.:
ORMISTON, J.A.:
VINCENT, J.A.:
In September and October last year, criminal proceedings were conducted in the Supreme Court of Victoria in which Alipapa Tofilau and Lorenzo Favata were separately presented on unrelated counts of murder. The trial of Tofilau was before Osborn, J. and a jury; and the trial of Favata was conducted before Teague, J. and a jury. In each of the trials evidence of admissions, alleged to have been made by each of the accused, was to be given by members of Victoria police force who, whilst engaged as “undercover operatives” and who formed part of the “Covert Investigation Unit”, had employed certain investigative and interrogative techniques for the purpose of securing those admissions. The nature and purpose of those techniques will be referred to by us in more detail later in these reasons.
During the course of each of the proceedings an application was made on behalf of the Chief Commissioner of Police to the respective trial judges to suppress, apparently for an unlimited time, publication of the details of the names and identities of the undercover police officers who employed the techniques and the methodology and the techniques so employed. Each application was founded upon s.18 of the Supreme Court Act 1986. So far as relevant, s.18 provides as follows:
“(1) The court may in circumstances mentioned in section 19 –
(a)order that the whole or any part of the proceeding be heard in closed court; or …
(c)make an order prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding.
(2)This section applies to any proceeding, whether civil or criminal.
(3)If an order has been made under this section the court must cause a copy of it to be posted on the door of the court house or in another conspicuous place where notices are usually posted at the court house.
(4)A person must not contravene an order made and posted under this section.”
The provisions of s.19 of the Supreme Court Act, on the basis of which each application was made, were, so far as relevant, as follows:
“The court may make an order under section 18 if in its opinion it is necessary to do so in order not to – …
(b) prejudice the administration of justice; or
(c) endanger the physical safety of any person; …”
In each case, counsel appearing for the respective accused expressed their objection to the application by the Chief Commissioner for the order suppressing the publication of the evidence. In the case of Favata, counsel sought leave to appear on behalf of “The Age” Co. Ltd. That counsel, too, objected to the suppression of the publication of evidence to be given by witnesses relating to the methods employed for the purpose of securing admissions.
In each trial the application on behalf of the Chief Commissioner for a suppression order was entertained by the judge in camera. In the in camera proceedings the judge heard submissions by counsel for the Chief Commissioner, in the absence of counsel for the Crown and counsel for the accused. In each case the judge had before him an affidavit from the former head of the “Covert Investigation Unit”. Evidence was also taken in camera from members of that unit. In each case, having heard the evidence and taken submissions from counsel, the judge declined to make the order sought under s.18 in the “unlimited form” requested, but granted suppression orders in a limited form to expire on 10 October 2003. In each case, by the orders made, publication was suppressed until 10 October 2003 of material which would disclose the names or identity of the “undercover operatives” and the evidence to be given by them (and also counsel’s addresses) in so far as the evidence and addresses revealed the methodology and techniques used by the said operatives to secure admissions from the respective accused. When informed by counsel for the Chief Commissioner of her intention to appeal to this Court against the limited orders so made, each judge extended the operation of the orders so made until the hearing and determination of the respective appeal.
The Chief Commissioner has now, by summons, sought “leave to appeal, if leave be necessary”, against the orders made respectively by Justice Osborn and Justice Teague. In each case the notice of appeal which is appended to the summons is in similar form. Each names the Chief Commissioner of Victoria Police as the appellant; and in each case the appellant sets out the orders made by each of the judges “in the proceedings” and claims to appeal against those orders on the ground that:
“Having found as a fact that the requirements of section 19 of the Supreme Court Act 1986 had been fulfilled, there was no proper basis on which the order should have been limited to 10 October 2003.”
The Relevant Circumstances
In order to understand the applications both before the judges of the Trial Division and in this Court it is necessary to know a little more of the evidence relating to these matters which the Chief Commissioner sought to suppress. We will try to describe matters in terms of generalities, so as not to place at risk any individual, but, for reasons which will appear, the broad scope of the investigative materials is already publicly known. Certainly it is known in Canada whence the method of investigation is said to have been largely adopted, for a general bar on publication has been held to be inappropriate by the Supreme Court of Canada in cases such as R. v. Mentuck[1].
[1][2001] 3 S.C.R. 442. That the information is known beyond those familiar with the law reports can be gauged from the fact that frequent articles about the case and its consequences have been written in the press in Canada and the United States.
Recently a “Cold Case” unit was established within the Homicide Squad of the Victoria Police. Working on the basis that, in some cases as a practical proposition, no charges would ever be likely to be laid against various individuals suspected of the commission of unsolved murders without admissions of guilt being made by the suspects, what would now be recognised generally in the community as “sting” operations have been undertaken. They have involved the employment of a technique developed in Canada and based on the straightforward idea that guilty persons may well incriminate themselves if they consider that to be both in their interests and safe to do so. What are called “scenarios” were designed and developed to establish such conditions. They have been of a generally similar kind, but adaptations have been made in order to accommodate the circumstances under which the particular investigation had to be conducted and the perceived personality of the targeted individual.
Basically the technique involved the use of undercover operatives who would, employing an appropriate pretext, make contact with the suspect. After a degree of confidence had been established, the person would then be introduced to a “criminal gang” that supposedly operated under the direction of a powerful “boss”. There would be suggestions made that, if the suspect was accepted into the gang, he or she would be able to share in its carefully organised and highly profitable activities. The boss himself was held out as a person who could monitor and influence the conduct of police investigations. At the same time the suspect would be given indications of a resurgence of interest in the investigation of their own matter. The suggestion would be implanted that the police may have come into possession of further information. This would be done for the purpose of creating in the suspect a measure of anxiety and some eagerness to ascertain the current state of police knowledge. The object of the exercise was, by carefully manipulating these influences, to induce the suspect to make full disclosure to the boss who, of course, would insist that nothing be withheld if the individual was to secure the acceptance and protection available to gang members. The ensuing conversations would be recorded on video or audio tape.
The technique, we have been informed, has been successfully employed in both Canada and the United States on a number of occasions. Members of the Victoria police force have received training in its use. The technique has not only been used in Australia but in other States where the methods adapted for use in Victoria have in turn been adapted for use in those States, though in some cases the local police forces have devised their own procedures. Whilst the concept is simple enough, it is evident from this brief description that a deal of careful planning and considerable expertise is necessary if the technique is to be successfully employed. It is said that in the trials of Tofilau and Favata evidence of the employment of the technique has been given.
The Orders
In response to the Chief Commissioner’s application Osborn, J. made the following order in the case of Tofilau:
“1.Pursuant to section 18(1) of the Supreme Court Act 1986 publication by print or electronic means of the following material be prohibited:
(i)photographic or any other images of the undercover operatives;
(ii)a report of any part of the proceedings or information derived therefrom which identify any of the undercover operatives as members of Victoria Police;
(iii)the names of the undercover operatives;
(iv)the evidence of the witnesses [referring to two witnesses by name];
(v)the evidence of the witness [X] save and except for the fact that a confession was made by the accused to police members on 17 March 2002 but not including any details of police undercover methodology;
(vi)details of the sixteen scenarios comprising such methodology referred to above which will be given in evidence by the aforementioned witnesses;
(vii)the opening and closing addresses of counsel in so far as they reveal the methodology disclosed by the above-named witnesses in relation to the sixteen scenarios;
(viii)the cross-examination of the informant and any police witnesses as to the methodology referred to above;
(ix)the fact of the use of any of the sixteen scenarios as an investigative tool used by the Victoria Police.
2.That such order remain in force up to and including 10 October 2003.”
It is unnecessary to set out the full terms of the order made at the trial of Favata for, although it was somewhat shorter and set out in a somewhat different way, it prohibited publication of essentially the same kind of materials.
The Applications in this Court
In this Court Mr Costigan appeared with Mr Silbert on behalf of the Chief Commissioner. Mr Gilbertson sought leave to appear on behalf of “The Age” Co. Ltd. Because there was no contradictor to the application made on behalf of the Chief Commissioner, the Court granted that leave. The notice of appeal remained unserved, presumably pursuant to the provisions of r.64.03(1) and (2).
Mr Costigan asserted, in response to questions from the Court, that the Chief Commissioner had the standing to appeal against the orders made by the trial judges, and further contended that this Court had jurisdiction to entertain that appeal. Mr Gilbertson also submitted to this Court that this Court had the jurisdiction to entertain the appeal.
It is not necessary for us to consider whether the Chief Commissioner has a right to appeal against the form of the suppression orders made by the respective judges. In our view she would have the standing to seek leave to appeal because she is a person who is sufficiently interested in, if not aggrieved by, the refusal of the trial judge to grant suppression orders in the terms which she had sought.[2]
[2]Cf. Cuthbertson v. Mayor Alderman and Citizens of the City of Hobart (1921) 30 C.L.R. 16 at 25 per Knox, C.J. and Starke, J.; Witness v. Marsden[2000] 49 N.S.W.L.R. 49 at 448 per Heydon, J.A.
Jurisdiction to Hear Applications
As we have already indicated neither counsel who addressed argument to this Court in support of the applications desired to submit, in response to queries raised by us, that the Court had no jurisdiction to entertain the application. Mr Costigan submitted that the orders made by the trial judges, on the Chief Commissioner’s application pursuant to s.18 of the Supreme Court Act, were “determinations” within the meaning of s.17 of that Act; but that they were not determinations made “on or in relation to the trial or proposed trial of a person on presentment” within the meaning of s.17A(3) of the Supreme Court Act 1986. Section 17(1) of the Supreme Court Act provides that a judge of the Trial Division:
“may hear and determine all matters, whether civil or criminal, not required by or under this or any other Act or the rules to be heard and determined by the Court of Appeal.”
Sub-section (2) of the same section provides that:
“Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a judge.”
The history of this section was traced by this Court in Fernandez v. Director of Public Prosecutions[3]. Section 17(1) is clearly designed to confer jurisdiction upon Trial Division judges to hear and determine “criminal matters” which are not required by the Supreme Court Act, or any other Act or the rules, to be heard and determined by the Court of Appeal. Sub-section (2) is calculated, subject to express provision otherwise in the Supreme Court Act or any other Act, to confer rights of appeal from a trial judge’s determination on such matters to the Court of Appeal. The section broadened the appellate rights which had previously existed under the predecessor section, namely s.42 of the Supreme Court Act 1958.
[3][2002] 5 V.R. 374 at 379 ff.
Section 42, until amended in 1984, provided that a single judge of the Court “may, subject to appeal in civil or mixed matters to the Full Court, hear and determine all … matters … not required … to be heard and determined by a Full Court”. This section had been interpreted as excluding appeals in “criminal causes or matters”.[4] Thus, even appeals from convictions for criminal contempts in the face of the Court could not be brought to the Full Court.[5] Such determinations could only be appealed, by special leave, to the High Court[6]. The legislature of this State sought to remedy this anomaly by amending s.42 by Act No. 10075 of 1984. The section was amended to read as follows:
[4]Tait v. R. [1963] V.R. 547; McEwan v. Waldron (No. 1) [1976] V.R. 495.
[5]See, e.g. Keeley v. Mr Justice Brooking (1979) 143 C.L.R. 162.
[6]Cf. Smith v. The Queen (1994) 181 C.L.R. 338 at 344 per Mason, C.J., Dawson, Gaudron and McHugh, JJ.
“(1)Any single judge sitting in court may hear and determine all motions, causes, actions, matters and proceedings not required under any Act or Rules of Court to be heard and determined by the Full Court.
(2)Unless otherwise expressly provided by this or any other Act, an appeal shall lie from any determination of a single judge sitting in court to the Full Court.”
When the Supreme Court Act 1986 was passed, the provisions of the previous s.42 were re-enacted as s.10 (which was included within Division 2 – “Distribution of Business”) in the following form:
“(1)The Court constituted by a Judge may hear and determine all matters, whether civil or criminal, not required by or under this or any other Act or the Rules to be heard and determined by the Full Court.
(2)Unless otherwise expressly provided by this or any other Act, an appeal lies to the Full Court from any determination of the Court constituted by a Judge.”
These provisions, save for the substitution of “Court of Appeal” for “Full Court” and the added references to the Trial Division, now find themselves, as we have previously indicated, in s.17(1) and (2) of the Supreme Court Act.
There can be no doubt that the amendments to the Supreme Court Act, to which we have referred, were intended to confer appellate rights against decisions of single judges in criminal matters where none had existed before. However, in 1985, the Full Court in R. v. Kean & Mills[7] decided that the words of restriction now found in s.17(2) (then s.42(2)) prevented the conferral of appellate rights in circumstances where rights of appeal already existed under Part VI of the Crimes Act 1958. That restriction on appellate rights in criminal matters was, shortly after the decision in Kean & Mills, intended to be formalised with the passage of legislation in 1986 which introduced the provisions now to be found in s.17A(3) of the Supreme Court Act 1986 (formerly s.14(3)). That sub-section provided originally that an appeal should not lie from a determination “by the Court constituted by a Judge” made on or in relation to a criminal trial. As amended, after the institution of the Court of Appeal and the inclusion of appropriate amendments referring also to the Trial Division, it now reads:
“Except as provided in Part VI of the Crimes Act 1958, an appeal does not lie from a determination of the Trial Division constituted by a Judge made on or in relation to the trial or proposed trial of a person on indictment or presentment.”
[7][1985] V.R. 255.
In Victoria Legal Aid v. Lewis[8] this Court was asked to consider the question whether the provisions of s.17A(3) of the Supreme Court Act operated to exclude appellate rights in circumstances broadly analogous to those which exist in these cases. In Lewis a trial judge had considered and granted an application made by an accused person, proposed to be tried on indictment, seeking legal aid in respect of the proposed trial pursuant to s.360A of the Crimes Act. Victoria Legal Aid sought to appeal against the judge’s order to the Court of Appeal; and this Court concluded that its jurisdiction was ousted by the provisions of s.17A(3) of the Supreme Court Act. Counsel for Victoria Legal Aid argued that s.17A(3) was inapplicable, submitting that the sub-section only excluded a right of appeal where the would-be appellant, either the accused or the Crown, was one of the parties to the kind of criminal proceedings described in the sub-section. Secondly, counsel had submitted[9] that an order made on an application under s.360A of the Crimes Act was not “a determination … made on or in relation to the trial or proposed trial of a person on indictment or presentment”, since it was an order made in proceedings which were “separate from and parallel to” the trial or proposed trial on presentment. The Court (Brooking, Charles and Batt, JJ.A.) rejected these submissions. It said[10] that:
[8][1998] 4 V.R. 517.
[9]At 519.
[10]At 520.
“The sub-section is not expressly confined to appeals by one or other of the parties to the criminal litigation and we can see no sufficient reason to read it as so confined as a matter of implication. The provision selects as the determinant, not the identity of the proposed appellant, but the nature of the decision, which is fixed by reference to the nature of the proceedings and the connection between those proceedings and the decision (‘on or in relation to the trial or proposed trial of the person on indictment or presentment’).”
The Court then considered the High Court decision in Smith, in the course of which the High Court, by a majority, had disapproved the meaning given to what was then s.14(3) by the Full Court of this State in Boehm v. Director of Public Prosecutions[11]. But, as the Court of Appeal in Lewis said[12]:
[11][1990] V.R. 494.
[12]At 520.
“The present question [i.e. whether s.17A(3) of the Supreme Court Act ousted the Court’s jurisdiction to entertain an appeal by Victoria Legal Aid] is not in terms answered by Smith v. The Queen (supra) which does expressly establish that s.17A(3) does not take away the right of appeal only in cases where such a right exists under Part VI of the Crimes Act. But the approach of the Court in that case suggests to us that we should give the body of the sub-section – that part of it which follows the introductory exception – its natural and ordinary meaning without deriving a suggested limiting implication from the introductory exception.”
In Smith the majority of the High Court concluded that the Full Court was wrong in concluding that s.14(3) of the Supreme Court Act (now s.17A(3)) did not preclude an appeal by the Crown against a determination by the trial judge permanently staying the trial of the applicants on the grounds of abuse of process. It determined that, on its proper construction, s.14(3) of the Supreme Court Act 1986 did preclude such an appeal from the decision of the trial judge. The majority stated[13]:
“It would appear that s.14(3) was intended to avoid the fragmentation of criminal trials by appeals brought from rulings before or during the course of a trial, whilst allowing an appeal where there was a conviction by a single judge such as occurred in Keeley v. Mr Justice Brooking. The observation that s.14(3) was intended to enact the decision in R. v. Kean & Mills does not shed a great deal of light on the full scope of that sub-section. The only possible way to reach the result reached by the Full Court [in Boehm] is to read the words ‘Except as provided in Part VI of the Crimes Act … ‘ at the beginning of s.14(3) as saying: ‘Where an appeal is provided directly or indirectly by Part VI of the Crimes Act … ‘.”
The majority judges concluded[14]:
“It follows, in our view, that s.14(3) must be given its ordinary meaning, and that the Full Court was wrong in Boehm v. Director of Public Prosecutions in saying that ‘[i]f the judge of this Court grants a stay, as no appeal against that lies under Part VI of the Crimes Act, an appeal against the determination lies under s.10(2)’ [now s.17(2)].”
[13]At 346.
[14]At 347.
Furthermore the Court of Appeal in Lewis rejected the submission made by counsel for Victoria Legal Aid that an order made by the trial judge on application under s.360A of the Crimes Act was not “a determination … made on or in relation to the trial or proposed trial of a person on indictment or presentment” on the grounds that it was an order made in proceedings which were “separate from and parallel to” the trial or proposed trial. The Court of Appeal said[15]:
“In our opinion neither V.L.A. nor an accused person can appeal against the making or refusal or terms of an order under s.360A. For, on the assumption on which we proceed (that there has been a “determination”), the determination was one made on or in relation to the trial or proposed trial of a person on indictment or presentment.
The determination is one very closely related to the trial or proposed trial. The Court is to concern itself with whether it will be unable to ensure that the accused will receive a fair trial unless legally represented at the trial.”
[15]At 521.
It would seem to us that, if the determination which was being considered in the case of Lewis was a determination made “on or in relation to the trial or proposed trial of a person on indictment or presentment”, then the determinations made in this case (namely the limited suppression orders made by the two trial judges) must each equally be “a determination made on or in relation to a proposed trial on indictment or presentment”, especially if one applies the broad interpretation given to those words in Smith, as this Court was obliged to accept in Lewis. This is particularly so having regard to the fact that the application was made under s.18 of the Supreme Court Act which gives the Court the power to make a suppression order only in relation to a “proceeding” or in respect of information derived from a proceeding. The order made is thus one which prohibits or limits the publication of the identities of certain witnesses in those proceedings and of the critical evidence to be given by those witnesses in the course of those proceedings.
The meaning which has been given to the words of s.14(3) of the Supreme Court Act by the High Court in Smith – and applied to s.17A(3) by the Court of Appeal in Lewis – and the effect of that interpretation, would appear to us to produce consequences which are the opposite of those intended to be produced by the legislature of this State when enacting the sub-section. Consistently with the enlarged appellate rights conferred by the amendments which are now to be found in s.17(1) and (2) of the Supreme Court Act, the provisions which were subsequently incorporated into s.17A(3) of that Act were intended only to enshrine the restriction on appeals in criminal matters which were identified in the Full Court’s decision in Kean & Mills, i.e., to ensure that appellate rights in respect of a determination by a trial judge were not “duplicated” in the sense that, if such determination would give rise to a right of appeal under Part VI of the Crimes Act, there could have been no earlier appeal to the Court of Criminal Appeal at that time against that determination – thereby fragmenting the proceedings. The construction which has been given to the somewhat opaque wording of s.17A(3) in the cases to which we have referred produces, as it seems to us, the somewhat startling result that the amplitude of appellate rights intended to be conferred by s.17(1) and (2) of the Act cannot achieve their intended purpose, or at least what appears to have been their original intended purpose. As we have said, that purpose was to overcome the limitations on appellate rights previously to be found in s.42 of the Supreme Court Act 1958 which prevented appeals to the Full Court against determinations of single trial judges in criminal matters, e.g., contempt matters. If the increased jurisdiction contemplated by the amendments to s.42 of the former legislation is to be limited by the construction of s.17A(3) of the Supreme Court 1986 in the manner to which we have referred, then it would seem that some cases of contempt of court dealt with by single trial judges will, or might, not be appealable to the Court of Appeal, e.g., determinations in relation to contempts (in the face of the Court) made by trial judges arising out of criminal proceedings, which will not give rise to appellate rights to the Court of Appeal because the determination would be made “on or in relation to proceedings on indictment or presentment”.[16] Indeed it might be said that Keeley is a paradigm example of such a determination. Yet that case, and others like it, gave rise to the amendments to s.42(1) and (2) of the Supreme Court Act 1958. If this is the result of the proper construction of s.17A(3), then in our opinion the legislature clearly will need to revisit it. The problem, as we have identified it, was foreseen by the Appeal Division of the Supreme Court in Boehm. The Court (McGarvie, Beach and Hampel, JJ.) said[17]:
“The words ‘in relation to’ are words of the widest import … . They should not be read down in the absence of some compelling reason for doing so … . If those words are given their widest meaning, they would prevent there being any appeal whatsoever in respect of determinations which in some way related to a trial or proposed trial, but from which no appeal lies under Part VI of the Crimes Act 1958. This would render unappealable many of the determinations from which Parliament gave a right of appeal for the first time in 1984.” (Citations omitted.)
[16]One may possibly exclude the exceptional case of a contempt in the face of the Court where the contempt has no connection whatsoever with the trial then under way so that it would not be related to those proceedings, but it is unnecessary to express any conclusion about such an example.
[17]At 496-497.
In contending before this Court that we have jurisdiction to entertain these appeals, Mr Costigan submitted that, since the decisions in Smith and Lewis, the High Court has made clear its view that what is now s.17 of the Supreme Court Act had conferred, and had intended to confer, wide appellate rights from determinations of trial judges, whether in civil or criminal matters. In Roy Morgan Research Centre Pty. Ltd. v. Commissioner of State Revenue[18], Gaudron, Gummow, Hayne and Callinan, JJ., having expressed the view that the word “determination” where used in s.17(2), “must be read … as a word which embraces a wide variety of judicial decisions”, continued by stating:
“Section 17(2) contemplates ‘express’ provision otherwise. There are legislative provisions in which ‘express’ is not used as an antonym of ‘impliedly’ but ‘merely serve to emphasise the generality of [one] provision by making clear that no case is outside that provision unless that is the necessary result of another enactment according to the intention it manifests’. It may greatly be doubted, that ‘expressly’ should be understood as being used in s.17(2) in this way. Section 17(2) is a provision which confers jurisdiction upon a court and it is, on that account alone, to be given no narrow construction. Rather it is to be construed with all the amplitude that the ordinary meaning of its words admits. It follows that the conclusion that there is express provision to the contrary will seldom, if ever, be available in the absence of explicit words excluding the jurisdiction of the Court of Appeal from any determination of the Trial Division when constituted by a judge.” (References omitted.)
[18](2001) 207 C.L.R. 72 at 78.
Counsel for the appellant in this Court relied upon these emphatic statements by the majority judges in the High Court as the basis for their submission, not only that the words being appealed against in this case were “determinations” of matters within the meaning of s.17, but also that they were intended to confer appellate rights to this Court in the circumstances of this case because s.17A(3) was not an express provision to the contrary. Thus it was said that there is an absence of those “explicit words” to be found in s.17A(3) of the kind which “exclud[e] the jurisdiction of the Court of Appeal from any determination of the Trial Division when constituted by a judge”. Although, in the light of the authorities to which we have referred, it seems to us to be doubtful that we can now conclude that s.17A(3) is not, within the meaning of s.17(2) of the Act, an “express” enactment otherwise, we are prepared to assume (without deciding) that Mr Costigan is correct in his submissions for the purpose of enabling us to determine the substantive issue debated before us – namely whether the trial judges were in error in making the limited suppression orders which they did. We are prepared to do this because we have reached a firm and united view upon that issue.
Whether Suppression Orders Should Be Made
The law recognises that there may be circumstances in which, by reason of the presence of some highly important public interest consideration, a need arises to suppress the publication of some part of the evidence given in what would otherwise be a publicly conducted criminal trial. It is also understood, however, that the inappropriate use of suppression orders poses the potential to jeopardise both the fact and the perception of the transparency and justice of our trial processes, whether in civil or criminal matters. Where police investigative techniques do assume relevance, to our knowledge they have always been open to publicly conducted challenge by the accused, at least since the criminal trial has taken its modern form.
In R. v. Mentuck[19], a case that raised many almost identical issues[20] to those before this Court, and in which almost identical propositions were advanced in the context of a similar “Crime Boss” scenario, Iacobucci, J., in delivering the judgment of the Supreme Court of Canada, stated[21]:
“A fundamental belief pervades our political and legal systems that the police should remain under civilian control and supervision by our democratically elected officials; our country is not a police state. The tactics used by police, along with other aspects of their operations, is a matter that is presumptively of public concern. Restricting the freedom of the press to report on the details of undercover operations that utilised deception, and that encouraged the suspect to confess to specific crimes with the prospect of financial or other rewards, prevents the public from being informed critics of what may be controversial police actions.”
[19][2001] 3 S.C.R. 442. See also R. v. O.N.E. [2001] 3 S.C.R. 487.
[20]The circumstances in that case were set out in the judgment, at para.[41], as follows:
“[I]t is helpful to review what is sought to be concealed in this case. The Crown contends that undercover police operations such as the one employed against the respondent may be compromised if the details of such operations are publicised in the mass media. The level of detail claimed to constitute a danger to ongoing and future operations, if disclosed, is relatively general. In the Crown’s submission, the following ten facts, the “hallmarks of the operation”, must be kept from wide dissemination:
· that Mentuck was given the opportunity to join a criminal organisation that would provide him with the potential to earn large sums of money so long as he showed his loyalty by confessing any past criminal activity;
· that he was told that the undercover operator was in trouble with the “Crime Boss” because it was believed that he had recruited a liar;
· that he was asked to pick up a parcel from a bus depot locker and turn the key over to the operator;
· that he was asked to pick up and deliver a vehicle on the instructions of the operator;
· that he was asked to stand guard and report any strange happenings while the undercover operator attended a meeting;
· that he was asked to help count large sums of money;
· that he was paid substantial sums of money for completing these tasks;
· that he met with the “Crime Boss” in a hotel room;
· that he was told he needed to provide details of his involvement in the death of Amanda Cook so that arrangements could be made for a person dying of cancer to confess to the crime;
· that he was told he would be assisted in suing the Government for wrongful imprisonment and would be allowed to keep a minimum of $85,000 or 10% of the settlement, whichever was larger.”
[21]At para.[50]. One should note that provisions of the Canadian Charter of Rights and Freedoms were relied upon before the Court and in particular that provision relating to freedom of the press, so that one should be cautious about assuming that the judgment expressed common law principles unaffected by that charter. Nevertheless the passage is relevant, not only as being consistent with the statements expressed by courts of highest authority in both this country and the United Kingdom, but also because the substance of the operation in the present case was derived from Canada where it has been dealt with by the Supreme Court in this way. One should further note, however, that the Court did not decide that there should be an absolute bar and maintained orders protecting the identity of certain operators for a limited period.
The principle of open justice is deeply entrenched in our law.[22] It rests upon a legitimate concern that, if the operations of the courts are not on public view as far as possible, the administration of justice may be corrupted. A court is “open” when, at the least, members of the public have a right of admission.[23] From this it may be thought ordinarily to follow that the media, in their various forms, are also entitled to communicate “to the whole public what that public has a right to hear and see”.[24]
[22]See Scott v. Scott [1913] A.C. 417, Dickason v. Dickason (1913) 17 C.L.R. 50, Russell v. Russell (1976) 134 C.L.R. 495, David Syme & Co. Ltd. v. General Motors Holden’s Ltd. [1984] 2 N.S.W.L.R. 294 per Street, C.J. at 299, Hutley, A.P. at 307 and Samuels, J.A. at 310, and Raybos Australia Pty. Ltd. v. Jones [1985] 2 N.S.W.L.R. 47 per Kirby, P. at 50-53, as examples of its expression and application.
[23]Kenyon Eastwood [1888] 57 L.J.Q.B. 455; R. v. Governor of Lewes Prison; Ex parte Terrill; Re Doyle [1917] 2 K.B. 254 at 271 per Viscount Reading, C.J.; R. v. Hamilton (1930) 30 S.R.(N.S.W.) 277 at 277 per Street, C.J.; Dando v. Anastassiou [1952] V.L.R. 235 at 237 per Dean, J.; R. v. Denbigh Justices [1974] Q.B. 759 at 765 per Lord Widgery, C.J., with whom Ashworth and Bristow, JJ. agreed.
[24]Waterhouse v. Station 2GB Pty. Ltd. [1981] 1 N.S.W.L.R. 58 at 62 E-F; Eisa Ltd. v. Brady [2000] NSWSC 929 at [16]-[17] per Santow, J.
In John Fairfax & Sons Ltd. v. Police Tribunal of New South Wales[25] McHugh, J.A. stated:
[25](1986) 5 N.S.W.L.R. 465 at 476.
“The fundamental rule of the common law is that the administration of justice must take place in an open court. A court can only depart from this rule when its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the court room.”
His Honour proceeded to say that an order prohibiting publication of evidence is “only valid if it is really necessary to secure the proper administration of justice in proceedings before it”, but, whatever may be the position in New South Wales, that broad statement must be qualified in this State by the statutory language contained in ss.18 and especially 19 of the Supreme Court Act, where a number of more general bases for the making of orders for suppression of publication are set out. As is clear from the second sentence of the passage quoted above, his Honour was concerned primarily with the inherent powers of common law courts. As to that he continued by stating these general principles[26]:
“Moreover an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make the order prohibiting publication. Mere belief that the order is necessary is insufficient. … Courts have no general authority … to make orders binding people in their conduct outside the court room. Judicial powers concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the courts an order made in court is no doubt binding on the parties, the witnesses and other persons in the court room. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative – not judicial – power.”
His Honour then drew a distinction which is of significance in considering the nature of orders made purporting to restrict the publication of evidence[27]:
“Nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court. But the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice and not because he was bound by the order itself.”
It would thus seem that orders made in the present proceedings must depend on their statutory basis for their significance will have little to do with the proceedings then before the Court and are designed to give protection for certain purposes or to certain individuals into the future, being likely to have a significance in relation to future proceedings, not those presently before the Court.
[26]Ibid.
[27]Ibid.
Gibbs, J. had earlier set out rationales for the rule in his judgment in Russell v. Russell[28] 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 court. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hallmark of judicial as distinct from administrative procedure’. To require a court invariably to sit in closed court is to alter the nature of the court.” (Citations omitted.)
However, as Viscount Haldane, L.C., noted in Scott, the principle is not absolute:
“While the broad principle is that the courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions … but the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done.”[29]
[28](1976) 134 C.L.R. 495 at 520.
[29][1913] A.C. 417 at 437.
Little consideration is required to appreciate that this concept of openness applies with particular force to the conduct of criminal trials and the evidence upon which convictions are based. The manner in which that evidence comes into existence and the procedures followed by investigative agencies are themselves matters of considerable public importance. Accordingly, with very few limitations, they have always been exposed to public scrutiny. In each of the circumstances in which the public disclosure of any part of our criminal justice processes has been prohibited, other powerful public policy considerations have militated in this direction. The identities of informers or undercover operatives are normally protected, for example. However, that protection must give way where the fairness of the trial itself is compromised. As Brooking, J. stated in a case relating to undercover operatives, Jarvie v. Magistrates’ Court of Victoria[30]: “No-one would doubt that identity must be disclosed if to refuse to do so would occasion a miscarriage of justice.” Special statutory regimes apply to victims of certain offences, young persons, to family law matters, to the obtaining of certain warrants and to aspects of the activities of certain investigative bodies. On occasions an order may be made for the suppression of the evidence adduced in a particular trial to avoid injustice in some related proceeding, but it is normally of limited duration and operate until the related matter has been finalised. Usually, at the trial level, such orders are made to avoid the public disclosure of the identity of the individuals to avoid exposure to danger and, very occasionally, to prevent public embarrassment. This may result in some cases in the suppression of part of the evidence which carries the potential to identify the protected person, but that is not the underlying purpose for the order. We are unaware of any situation in which an order of the kind desired here has either been sought or granted.
[30][1995] 1 V.R. 84 at 89.
The applications for the suppression orders under consideration were made pursuant to ss.18 and 19 of the Supreme Court Act. Whether the Court possesses any inherent power to make such orders may be thought to be very doubtful, for they are directed to circumstances going beyond the administration of justice. Although Kirby, P. did not find it necessary to arrive at a firm conclusion in Raybos Australia Pty. Ltd. v. Jones[31], he expressed the view that: “Statute apart, it is doubtful on the authorities, that courts have the power to make an order, operating outside the court, which suppresses the publication of anything said in open court.” It is unnecessary for us to consider that question but we point out that the existence of such doubts serve to emphasise the crucial significance attributed to the maintenance of an open system of justice. We would, however, note that from time to time courts, including this Court, have made orders precluding the publication of evidence because the publication of that evidence would tend to place at risk the fair trial of the accused on the same or other charges.[32] Doubtless para.(b) of s.19 of the Supreme Court Act directed to the administration of justice, has been invoked, so that it was and is unnecessary to canvas whether the courts had an inherent power to make orders of that kind.
[31][1985] 2 N.S.W.L.R. 47 at 55.
[32]For example, such an order was made in the case of R. v. Glennon [2001] VSCA 17, not only at the trial stage, but also on appeal, because the applicant was to face three subsequent trials, including a retrial on some of the counts the subject of one appeal, so that in the end publication of the judgment was suspended for over two years.
On whatever basis the matter is approached, such orders can only be made in circumstances where the ends of justice require the concealment of some part of the process. Where orders for suppression are authorised only by statute, the provisions ought ordinarily to be strictly construed and utilised only when clearly necessary. One must be more cautious, therefore, when considering a power to preclude publication which is not founded on the need to avoid prejudicing the administration of justice. Even in claims seeking to protect the administration of justice, whether they be dependent on a statutory power or not, there will ordinarily be competing public policy considerations, especially where the order sought is intended to ensure the fair trial of an accused, whether in the instant trial or in some other trial. On the other hand, where the order sought is founded on other considerations, one must be particularly careful not to deny the general principle of an open trial. It is difficult to see in the present case, except in respect of some brief period which is not in issue, that the protection sought is directed to ensuring the fair trial of any individual, at least as we would understand the matter.
The situation presently under consideration poses a number of important issues. The Chief Commissioner of Police seeks the continued suppression from public disclosure of the use of a technique to secure admissions from suspected persons relying primarily on three considerations:
(1)It was submitted in the first place that the technique provides the police with a very powerful tool that may enable them not only to secure confessions or admissions in some cases which could not otherwise be solved, but also to obtain information that may open up avenues for the investigation and obtaining of other evidence. We have also been informed that under consideration is the possibility of use in other cases where it would seem to hold promise. The efficacy of the technique is dependent upon the suspect accepting the genuineness of the scenarios with which he or she is presented. Its usefulness therefore can reasonably be expected to reduce dramatically once it becomes generally known that the police are engaging in such operations. It is not, however, conceded that it will become known informally among the kind of persons likely to be affected even where an order prohibiting disclosure has been made.
(2)We have been informed that there are ongoing operations of this kind currently being conducted in Victoria and in other states that may well be compromised once publicity is given to what has already happened.
(3)Finally the Court has been urged to bear in mind that the persons who have been selected as the subjects of these operations are suspected murderers. Public disclosure of the police procedures involved could put undercover operatives engaged in them in personal jeopardy.
There can be little doubt that each of these three considerations has merit but that, of course, is not the end of the matter.
Putting to one side the broader issue of openness, it would seem likely that the admissibility and reliability of the confessional evidence secured as a result of the engagement by members of the police in a process of manipulation of this kind would be the subject of challenge in any criminal trial which resulted. Self-incriminating statements against interest made by an accused person are regarded by the law as possessing probative value on the assumption that, because they are ostensibly against the interests of the maker, they are more likely than not to be true. The assumption is, however, not always well-founded. The possibility that an individual, responding to a process of skilful manipulation and believing that it is both in his interest and safe to do so, may make an untrue statement, cannot readily be discounted. A jury may well be invited by the defence to view admissions made in such circumstances as unreliable, as constituting nothing more than “big noting” for the purpose of gaining entry into the “gang” and thereby sharing in the anticipated rewards, to take only one example.
It is not difficult, therefore, to envisage the raising of questions concerning the possible exclusion of the evidence on the basis of fairness or public policy considerations. If admitted, the jury may well need to consider with some care the precise circumstances in which the statements were made in order to make an assessment of their reliability as admissions. The trial judge would almost certainly need to provide careful instruction with respect to such evidence, drawing to their attention the potential risks which could be seen to arise in the particular circumstances. In a broad sense, the situation could be likened to that with which the courts have regrettably become too well acquainted where the prosecution has endeavoured to rely upon an accused’s statement as demonstrating a consciousness of guilt. The views so far expressed concerning potential issues are already tentative and relate to only a few of the issues that we perceive could arise and the likelihood that there may be a number of others that we have not even envisaged cannot be ignored. Whether or not that is the case, there is a high degree of probability that the general circumstances in which the confession or admissions were made will emerge in almost every trial in which the technique has been employed.
Obviously, it is highly desirable that a perpetrator of a crime as serious as murder be brought to justice. In this regard the technique under consideration, we have been informed and accept, holds some promise in certain cases. Assuming that, as a practical proposition, the continued concealment of its use could be achieved, the question would remain: should that possibility be regarded as sufficiently important that the basic principle of openness in our court should give way?
It is necessary only to have regard to the nature of the temporary orders made on the two occasions that the issue has arisen in trials in this State to appreciate the breathtaking breadth of the suppression orders required. Effectively, if these orders were continued as sought by the Chief Commissioner, there would be, for an indeterminate period into the future, the attempted concealment from the public of the evidentiary foundation upon which the prosecution has sought the conviction of persons for murder.
Certainly convicted persons undergoing lengthy sentences for murder resulting from this kind of evidence would have no interest in the protection of the secrecy of the police procedures leading to their convictions, particularly if they continued to maintain their innocence and wished to challenge both the technique employed and any resultant evidence on appeal to this Court and possibly to the High Court. Equally important is the necessity to ensure that there should be full disclosure of the circumstances under which confessional evidence comes into existence in the event of an acquittal which involved its rejection as insufficient to found a conviction. This problem arose in R. v. O.N.E.[33] where the Canadian Supreme Court held[34] that:
“Furthermore, the accused’s right to a public trial, and the vindication associated with public awareness of the nature of the evidence on which she was acquitted, are seriously compromised by the ban [on publication]. An acquittal can be difficult to live with when the public believes that it was gained only on a ‘technicality’, rather than because there were serious doubts about the authenticity of the confession at issue in this case. I take note that in this case media reports largely portrayed the accused as having been acquitted on such technical grounds, when in fact the credibility of the Crown’s major evidence – the accused’s confession – was the major issue of fact.”
An extraordinary situation could arise in which an individual might be in contempt of the Court by disclosing the basis of his or her acquittal. The community would be aware that some such evidence existed but be prohibited from knowledge of its defects.
[33][2001] 3 S.C.R. 478.
[34]At para.[13]. Although in part dependent on the Canadian Charter, the reasoning is consistent with common law principles.
One must be cautious, however, in seeking to identify and apply the principle to every circumstance. It is common, and clearly in the interests of justice in the particular case, for information about assistance given to the police and other authorities being sealed up and made subject effectively to a ban against disclosure for an indefinite period, only to be lifted on the order of a court. That kind of information is not infrequently acted upon and results in significant lessening of sentences on offenders, an outcome which could not be achieved unless the material was subject to some such ban. Although the trial and sentencing may soon be over, the possibility of its ready disclosure might inhibit people from giving the information at all to the Court or to the authorities. Limited bans of that kind may therefore be seen to be in the interests of justice in the particular criminal proceedings and not directed to some future and indefinite purpose.
More curious would be the position where a non-publication order had been made and yet this Court set aside a conviction on the basis that, in the particular circumstances, a confession obtained through the adoption of the technique should have been excluded as involuntary or its admission as unfair or contrary to public policy. No feat of imagination is required to envisage a number of situations in which that could occur. The nature of the inducements offered or the process of manipulation involved in the technique might, at least in some circumstances, be perceived as affecting the evidentiary value and fairness of the resulting confession or admission; perhaps on the basis that the will of the individual may have been overborne as a consequence of the psychological pressure exerted upon him or her; perhaps because the assumptions, to which we have referred earlier, upon which declarations against interest are generally admissible, cannot be safely made in the circumstances. The Court in considering such a situation would apply:
“concepts of voluntariness, fairness and public policy [that] are integral to the operation of our criminal justice system. They are designed to ensure that any finding of guilt arrived at, on the basis of confessional evidence, is not only reliable but that the evidence itself has been obtained in a socially acceptable fashion. It is important to keep in mind, in this context, that they are concerned not only with the recognition and protection of the rights of those who may be suspected of the commission of criminal offences, but that any such finding is not surrounded by an aura of possible injustice which compromises both the system and the society which supports it.”[35]
[35]R. v. Warrell [1993] 1 V.R. 671 at 681.
This Court has special responsibilities to ensure that the criminal justice system in this State operates in accordance with these principles. It performs its role not only through the orders that are made but also through the formulation and dissemination of principles. It is of fundamental importance to the proper performance of the functions of the Court and to the maintenance of confidence in our legal system that the community can have access to both its judgments and the reasoning upon which they rest. The setting aside of a conviction for murder or the refusal to do so is, of itself, a significant event, with profound implications for those personally involved. It is undesirable that, save in the most exceptional circumstances, the factual and legal foundations underlying a decision of this Court should be concealed.
The response that might be made that the issue could be addressed in a publicly released judgment expressed in terms of broad principle without reference to the factual background is one which is clearly unsatisfactory, except in the most unusual cases. From the perspective of those “not in the know”, that is, the bulk of the community, the decision of the Court would appear, if not strange, unsatisfactorily imprecise. For those intimately affected by the crime, there would seem to be a replacement of a verdict based on evidence by a decision founded on unrelated statements of general principle. This would constitute a serious disservice to the law, the community and those personally affected by the decision, and to the Court itself.
The engagement by police agencies in “sting” operations of a variety of kinds, according to the subject of the investigation being pursued and the nature of the evidence or information being sought, is well known to and accepted by the community. Police officers, posing as drug dealers, have been employed in hundreds, if not thousands, of such operations in this country over many years. Even in seeking to procure acts of murder a surprising number of people have attempted to engage persons to perpetrate the killings on their behalf who, unknown to them, were undercover operatives. This has occurred in spite, we should add, of the number of convictions of similarly inclined individuals. Likewise operations have been mounted to identify paedophiles using the Internet. The infiltration of car-stealing gangs has also been undertaken. What occurs in these various operations is regularly the subject of evidence in open court. No reason has been advanced to us that would justify a different approach being adopted in relation to this technique. Certainly the individual operatives are at personal risk during the carrying out of the operation but it must almost invariably be the case that the operation is concluded when the matter comes on for trial. If the technique adopted is so similar when used in other investigations, there would almost invariably be a risk to the police operatives engaged in any later operation, for it should not be assumed that those who move in “underworld” circles would be unaware of techniques adopted and of circumstances which had occurred in earlier cases, including the use of methods of the kind here employed. But the idea that an order of the kind sought in these cases could be thought to be effective to stop the passing on of that information is, if we may say so, fatuous, for the threat of punishment for contempt of such orders, even if that involved an order for imprisonment, would be of little deterrent effect on persons serving extensive terms for murder or their colleagues.[36]
[36]Even if such orders were effective to discourage publication in newspapers and the other media, although that might limit the number of people who would come to know of such techniques and methods, there could be no assurance to undercover operatives that the information would not reach other persons suspected of murder, albeit the information was passed on by informal means.
It cannot be assumed that the technique which is the subject of reported decisions in the Supreme Court of Canada has not or will not become more generally known, at least to those likely to be its target, and it must be anticipated that, at least until that occurs, other police agencies in this country may make use of it. To quarantine the entire state of Victoria against the intrusion of such knowledge and the concealment of the employment of the techniques is quite impractical in our view. Whatever orders may be made there will still remain the possibility, if not likelihood, of relevant information reaching those suspected of other murders.
Would an overseas television program based, perhaps fictionally, upon what had occurred in Canada be subject to the operation of any proposed order for the continued suppression of information where it was possible that its screening might alert “targets” in Victoria? Presumably the media in this State would be precluded from publishing, in an article or program dealing with police investigative techniques generally, material extracted from the reported decisions of the Supreme Court of Canada which outline the methods, to the extent that they were similar to those adopted in this State. In Canada the Crown had argued that the “hallmarks of the operation” did not have to be kept entirely secret by any publication ban but they must be kept out of the mass media, “since the type of persons targeted by these operations [were] much more likely to have access to recent copies of newspapers and to television news reports than to, for instance, legal journals and law reports”.[37] As to this argument Iacobucci, J., delivering the judgment of the Court, said[38]:
“Assuming that these publications can be properly identified, this would mean that lawyers, law professors and law students would be aware of the police practices, but not the general public. I find that result disquieting to say the least.”
In this era of Internet searching the argument also might not be very realistic.
[37]See Mentuck at para.[42]. One should note that decisions such as Mentuck contemplated that there might be limited protection given to the identity of individuals.
[38]Ibid. Again it should be noted that decisions such as Mentuck and O.N.E. may not be strictly analogous in this jurisdiction because of their reliance on the Canadian Charter. They are relevant, however, because they evidence the difficulty of restraining publication of this Canadian method.
Only a moment’s thought is required to appreciate that the making of orders of the kind sought here would present immense practical difficulties, whether considered in terms of duration, scope of effectiveness. In our view the point was well made by Lord Hatherley, L.C. almost 140 years ago in language perhaps more suited to its time:
“there are cases where the Court will take care not to pronounce an idle and ineffectual order; for instance, the Court will not issue a mandatory injunction where it is impossible that the mandatory injunction can by any means be complied with. The simplest illustration of this is the case of cutting down timber. It would be idle when the trees have been cut down to make an order not to allow the trees to remain prostrate, … . Take another illustration. There might be a bank to prevent the influx of the sea, and that bank might be most improperly destroyed; the Court would restrain the performance of the act if it were in time to do so, but the act having been done once, and the sea admitted, the Court could only then leave the parties to their remedy for damages, considering it impossible to exclude the sea.”[39]
Although the principle was expressed in relation to a mandatory injunction, it has also been applied to negative injunctions: see, e.g. O’Brien v. Shire of Rosedale[40].
[39]Attorney-General v. Colney Hatch Lunatic Asylum (1868) L.R. 4 Ch. App. 146 at 154.
[40][1969] V.R. 112 at 118. However, care should be taken in applying the so-called principle, which is merely an example of the way courts of equity exercise their discretion, unless the order is shown to be truly futile.
When one adds practical ineffectiveness to the undesirability of impinging on the openness of the Court’s proceedings in criminal trials, there seems little basis for the extended orders which are sought by the Commissioner. That does not mean that in particular cases, where a particular individual’s safety is at risk, some limited order for non-publication should not be made so as to protect those persons during the period they are likely to be at risk. But avoiding a risk to an individual potential witness can fairly be justified on the basis of protecting the administration of justice. When it comes to individuals and their protection so far as ongoing investigations and possible future trials are concerned, the connection seems more remote. In the first place it is unlikely that the same individuals will be engaged. Secondly, and more importantly, where the administration of justice is in issue, prohibition may be justified, but where, as here, other general considerations are relied upon one must look carefully to the statutory powers given, especially pursuant to s.19 and the exercise of those powers must not derogate from the desirability of the open administration of justice. What we here say, of course, is not in any way intended to restrict those circumstances in which the Court presently provides protection to various persons either under the statutory provisions or, as it may be perceived, under its inherent power to protect the administration of justice. Not infrequently orders are made which have a bearing, not on a current trial but one intended to take place in the future, but the object is to ensure that the accused is fairly tried. One frequently encountered example is where prejudice is likely to occur to the accused if details of earlier trials are published which may come to the attention of the jury who would otherwise be prevented from hearing of them, and we give again the example of the case of Glennon where details of trials and appeals were restricted from publication because three future trials had to be held, which in fact took several years and the restriction was only lifted last December. Indeed most examples will be directed towards preserving the position of an accused and we would in no sense wish to prejudice the trial of any such person if publication might have a deleterious effect, so long as it is realised that the remedy is out of the ordinary and one to be granted bearing fully in mind the desirability of an open trial, the details of which may be brought more widely to public attention.
In the present cases no factors of that kind are present, and subject to any necessary orders directed to the protection of individuals, which in themselves should have force for but a limited period, there is no basis for the making of the orders to suppress indefinitely the matters encompassed by the orders made by the judges already in the trials presently in issue, so that publication would be both offensive to principle and almost certainly ineffectual.
Consequently the applications should be dismissed.
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