Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd
[2006] WASCA 172
•30 AUGUST 2006
RE HER HONOUR CHIEF JUDGE KENNEDY; EX PARTE WEST AUSTRALIAN NEWSPAPERS LIMITED [2006] WASCA 172
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 172 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:10/2005 | 5 MAY 2006 | |
| Coram: | STEYTLER P ROBERTS-SMITH JA McLURE JA | 30/08/06 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused Order nisi discharged | ||
| A | |||
| PDF Version |
| Parties: | WEST AUSTRALIAN NEWSPAPERS LIMITED |
Catchwords: | Procedure Courts and judges generally Courts Competence of application for leave to appeal brought by newspaper against suppression order Whether newspaper a "party" to a "matter" under s 79 District Court of Western Australia Act 1969 (WA) Whether determination of hypothetical question in public interest Procedure Administration of justice Where sentencing Judge closed court and suppressed publication of sentence imposed on accused Principles related to closed court proceedings Whether reasons for closing court should be published Procedure Comments on nature of application for suppression order Necessity of recording information upon which suppression orders made and reasons for making suppression order Comments on nature of application to discharge or vary suppression order |
Legislation: | District Court of Western Australia Act 1969 (WA), s 6, s 79 Supreme Court (Court of Appeal) Rules 2005 (WA), r 25 Criminal Procedure Act 2004 (WA), s 121, s 171 |
Case References: | Attorney-General v Leveller Magazine Ltd [1979] AC 440 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Cain v Glass (No 2) (1985) 3 NSWLR 230 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Confederation of Western Australian Industry (Inc) v Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1990) 70 WAIG 1281 David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NSWLR 294 Glasgow Navigation Co v Iron Ore Co [1910] AC 293 House v The King (1936) 55 CLR 499 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324 Ku-ring-gai Municipal Council v Suburban Centres Pty Ltd [1971] 2 NSWLR 335 Lovell v Lovell (1950) 81 CLR 513 Mallet v Mallet (1989) 156 CLR 605 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38 Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 R v Kwok (2005) 64 NSWLR 335 R v Tait (1979) 46 FLR 386 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 Re Bromfield; Ex parte Weste Australian Newspapers Ltd (1991) 6 WAR 153 Re Robins SM; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511 Reynolds v Panten [No 1] [1999) 23 WAR 215 Russell v Russell (1976) 134 CLR 495 Shire of Augusta-Margaret River v Gray (2005) 143 LGERA 55 TK v Australian Red Cross Society (1989) 1 WAR 335 Veloudos v Young (1981) 56 FLR 182 Advertiser Newspapers v Bunting [2000] SASC 457 Biggs v Director of Public Prosecutions (1997) 92 A Crim R 127 Fox v Percy (2003) 214 CLR 118 Garrett v Nicholson (1999) 21 WAR 226 R v Forscutt (2004) 182 FLR 130 Scott v Scott [1913] AC 417 Tran v Claydon (2003) 40 MVR 506 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE HER HONOUR CHIEF JUDGE KENNEDY; EX PARTE WEST AUSTRALIAN NEWSPAPERS LIMITED [2006] WASCA 172 CORAM : STEYTLER P
- ROBERTS-SMITH JA
McLURE JA
WEST AUSTRALIAN NEWSPAPERS LIMITED
Applicant
- EX PARTE
WEST AUSTRALIAN NEWSPAPERS LIMITED
Applicant
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : KENNEDY CJDC
File No : IND 18 of 2005
Catchwords:
Procedure - Courts and judges generally - Courts - Competence of application for leave to appeal brought by newspaper against suppression order - Whether newspaper a "party" to a "matter" under s 79 District Court of Western Australia Act 1969 (WA) - Whether determination of hypothetical question in public interest
Procedure - Administration of justice - Where sentencing Judge closed court and suppressed publication of sentence imposed on accused - Principles related to closed court proceedings - Whether reasons for closing court should be published
Procedure - Comments on nature of application for suppression order - Necessity of recording information upon which suppression orders made and reasons for making suppression order - Comments on nature of application to discharge or vary suppression order
Legislation:
District Court of Western Australia Act 1969 (WA), s 6, s 79
Supreme Court (Court of Appeal) Rules 2005 (WA), r 25
Criminal Procedure Act 2004 (WA), s 121, s 171
Result:
Application for leave to appeal refused
Order nisi discharged
Category: A
(Page 3)
Representation:
CACV 10 of 2005
Counsel:
Applicant : Mr D Wallace & Ms C Galati
Amicus Curiae : Mr G T W Tannin SC & Mr C S Bydder
Solicitors:
Applicant : Edwards Wallace
Amicus Curiae : State Solicitor's Office
CIV 1821 of 2005
Counsel:
Applicant : Mr D Wallace & Ms C Galati
Amicus Curiae : Mr G T W Tannin SC & Mr C S Bydder
Solicitors:
Applicant : Edwards Wallace
Amicus Curiae : State Solicitor's Office
Case(s) referred to in judgment(s):
Attorney-General v Leveller Magazine Ltd [1979] AC 440
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Cain v Glass (No 2) (1985) 3 NSWLR 230
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Confederation of Western Australian Industry (Inc) v Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1990) 70 WAIG 1281
(Page 4)
David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NSWLR 294
Glasgow Navigation Co v Iron Ore Co [1910] AC 293
House v The King (1936) 55 CLR 499
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131
John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694
John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324
Ku-ring-gai Municipal Council v Suburban Centres Pty Ltd [1971] 2 NSWLR 335
Lovell v Lovell (1950) 81 CLR 513
Mallet v Mallet (1989) 156 CLR 605
Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54
Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
R v Kwok (2005) 64 NSWLR 335
R v Tait (1979) 46 FLR 386
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
Re Bromfield; Ex parte Weste Australian Newspapers Ltd (1991) 6 WAR 153
Re Robins SM; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511
Reynolds v Panten [No 1] [1999) 23 WAR 215
Russell v Russell (1976) 134 CLR 495
Shire of Augusta-Margaret River v Gray (2005) 143 LGERA 55
TK v Australian Red Cross Society (1989) 1 WAR 335
Veloudos v Young (1981) 56 FLR 182
Case(s) also cited:
Advertiser Newspapers v Bunting [2000] SASC 457
Biggs v Director of Public Prosecutions (1997) 92 A Crim R 127
Fox v Percy (2003) 214 CLR 118
Garrett v Nicholson (1999) 21 WAR 226
R v Forscutt (2004) 182 FLR 130
Scott v Scott [1913] AC 417
Tran v Claydon (2003) 40 MVR 506
(Page 5)
1 STEYTLER P: The applicant has sought leave to appeal against orders made by the primary Judge on 9 February 2005 suppressing, until further order, any publication of proceedings that took place before her between 9 am and 9.15 am on that day and suppressing publication of sentencing proceedings that had taken place before her between 9 am and 9.30 am on the previous day. Although the originating motion for leave to appeal filed on behalf of the applicant refers only to the first of those orders, we were invited by counsel for the applicant, without opposition from Mr Tannin SC (who opposed the application for leave to appeal as an amicus curiae, having been given leave by the Court to do so), to treat the motion as if it had referred to both orders. The applicant has also applied for prerogative relief by way of the issue of writs of certiorari and mandamus. These are aimed at quashing the suppression orders and directing the primary Judge to hear submissions from the applicant in respect of the question whether orders of that kind should be made and then to exercise her discretion in that respect according to law, providing reasons which disclose what sentence was imposed by her in the sentencing proceedings on 8 February 2005.
Events on 8 February 2005
2 The transcript of the proceedings on 8 February 2005 reveals that, shortly after 9 am on that day, Mr Daniel Klavins was brought before the Court on a charge of conspiracy to commit an indictable offence of arson. He was represented by his solicitor, Mr M L Tudori. The State of Western Australia was represented by Mr M A Perrella. Before Mr Tudori had said anything, he was asked by the primary Judge whether he wanted to "make an application". The transcript then reveals the following exchange, parts of which appear to be incomplete:
MR TUDORI: "There is an … "
THE PRIMARY JUDGE: " … the court?"
MR TUDORI: "There is."
THE PRIMARY JUDGE: "Yes."
MR TUDORI: "I can give … "
THE PRIMARY JUDGE: "No, I'm making the order."
MR TUDORI: "Thank you, your Honour."
3 It is not clear from the transcript what application was the subject of the primary Judge's inquiry to Mr Tudori. Nor does the transcript reveal what order was made, what were the grounds for making it and what was
(Page 6)
- the evidence relied upon. However, it is common cause for the purposes of this application that the order was one closing the Court.
4 The conspiracy charge was then read to Klavins. He pleaded guilty to it and was duly convicted. Mr Perrella then informed the Judge of the relevant facts (which were not in dispute). These were essentially that, between 1 June 2004 and 16 July 2004, Klavins and others, including Mr Jack Van Tongeren, had decided that there should be arson attacks carried out on four Chinese restaurants at a time that would coincide with the release and launch of a book, entitled "The ANM Story", written by Van Tongeren. The ANM, or Australian National Movement, was said to be a racist organisation with which the conspirators had been associated.
5 Klavins had previously been arrested and charged with a number of offences relating to the use of graffiti and the placing of posters in the Perth metropolitan area. He had pleaded guilty to those offences and had been sentenced to a term of 10 months' imprisonment. While serving that term of imprisonment, he provided a detailed 23-page statement to the police giving information as to the whereabouts of Van Tongeren (who was then being sought by the police) and others, as to the capabilities of the ANM and as to offences that had been committed by persons associated with the ANM, including the conspiracy (which, in the end, had not been put into effect). Klavins undertook to give evidence in accordance with his statement at a number of subsequent trials. A letter from the Western Australian police, countersigned by the Director of Public Prosecutions, was provided to the primary Judge for the purposes of the hearing on 8 February 2005, outlining the extent of Klavins' cooperation. This letter was heavily relied upon by Mr Tudori in the course of sentencing submissions made by him to the primary Judge on Klavins' behalf. These submissions encompassed the following (page 8 of the transcript):
"Whilst in custody because of the information that had been received by the prisons he was constantly moved around, trying to find him … a safer prison, to such an extent that some prisons wouldn't take him. … [O]ne of the people that was involved in all of this is someone from the Club Deroes [a well-known "bikie" gang]. Now, as a result of that information … the media have really gone to town on this whole matter and someone had sent this deposition to the media. The media have had this deposition or a portion of it. It wasn't reproduced exactly in the media but it was certainly
(Page 7)
- known in the media that people are giving evidence against Jack van Tongeren.
So there's been threats by the Club Deroes and that’s a real considerable concern that this offender has … Upon his release [,] and he was granted bail just prior to his parole or CEO parole on the other matters[,] … there is … in place witness protection if he wants to take advantage of it but of course that’s very onerous. At this stage he's in effect in hiding but not under witness protection but if it gets to that stage he and his family will go into it."
6 The reference to the media having "gone to town on this whole matter" seemingly related to the fact that there had been published in The West Australian newspaper, during the second half of 2004, a large number of articles concerning the activities of persons said to be associated with the ANM. These articles revealed, amongst other things, that Klavins had pleaded guilty to committing acts of racist graffiti and had received a prison term of 10 months in respect of them (an article published on 6 August 2004); that he had pleaded guilty to four charges of conspiring to commit crimes, including arson (an article published on 3 November 2004); that, together with another man, Klavins would be giving evidence against those charged with conspiring to burn down four Chinese restaurants (an article published on 21 January 2005); and that Klavins was likely to receive a reduced sentence for agreeing to give evidence against others charged with conspiring to burn down the four Chinese restaurants (an article published on 18 December 2004).
7 An article published in The West Australian newspaper on 18 November 2004 reported that on the previous day three men, including the ANM leader, had pleaded not guilty to conspiring to burn down four Chinese restaurants and that each faced a number of additional charges of criminal damage and destroying property in the course of a racist graffiti and poster campaign. The article recorded that the prosecution's case was based on the testimony of "two rollover ANM and Australian Nationalist Workers Union recruits", one of these being Klavins. It referred to a statement made by Klavins in the course of which he said that one of the persons who had pleaded not guilty to the conspiracy charge (Mr John Van Blitterswyk) had boasted that he would "shoot it out with anyone who tried to arrest him" and that he "intended to beat Ned Kelly's record of killing police".
(Page 8)
8 In the article which was published on 18 December 2004, Klavins was reported as having revealed that plots to torture the Prime Minister and to intimidate the Western Australian Attorney-General were part of the ANM's daily operations. The article went on to reveal that, on the previous Tuesday, the Perth Magistrates Court had been told that Klavins would be the main witness against the men with whom he was alleged to have conspired to fire bomb Asian restaurants, that the Magistrate had granted him bail because of "that aid" and that he was likely to get "a cut sentence". The article also revealed that The West Australian newspaper had copies of Klavins' statement, as well as a statement from a second "rollover" witness, which outlined the alleged activities of the ANM from the time of Van Tongeren's release in 2002. The article went on to record a number of allegations against ANM members that had been made by Klavins.
9 None of these materials was referred to in the course of submissions before the primary Judge, other than by way of the broad general comments to which I have referred, and nor were they (or any of them) placed before her.
10 Having heard the submissions that had been made by Mr Tudori on behalf of Klavins, and those made by the prosecutor, Mr Perrella, in the course of which he appeared to acknowledge the risk to Klavins that had been identified by Mr Tudori (transcript page 10), the primary Judge proceeded immediately to sentence Klavins. She imposed a term of suspended imprisonment. In the course of doing so, she said that she accepted that he was in considerable danger and that the assistance that he had given was extremely valuable.
11 Later that day, Ms Carmelina Galati, a solicitor, was instructed by the applicant to ascertain whether the primary Judge had published, or was prepared to publish, her reasons for ordering the closure of the Court and also the sentence that she had imposed. Ms Galati faxed a letter to the primary Judge's associate making those inquiries and referring to authority in support of the proposition that the reasons for decision of the Court ought to be published.
12 At about 5 pm that day, Ms Galati received a telephone call from the primary Judge's associate. She was told that the primary Judge requested that she appear before the Court at 9 am on the following day.
(Page 9)
Events on 9 February 2005
13 On the following morning The West Australian newspaper published an article recording that Klavins had been sentenced on conspiracy charges in a closed hearing on the previous day. The article recorded that, in November 2004, Klavins had pleaded guilty to four counts of conspiring with others to fire bomb Chinese restaurants, that he had "rolled over" and that he would be a key witness against his alleged co-conspirators.
14 When Ms Galati appeared before the primary Judge at 9 am that day, the primary Judge informed her that she had, on the previous day, closed the Court after an application was made to her to do so. She said that she had done so "because of information … [she] had received before coming into Court and because of the contents of the file which … [she] had received". She also said that the reason that she had made the order was that she had formed the view that the life of Klavins, and that of his family, was in serious peril and that all steps should be taken to minimise that risk. She said that she had formed the view that that risk was continuing and would be exacerbated by publicity. She said that the risk had increased since Klavins had last appeared in Court and that, while there might come a time when the Court would be "powerless to continue this", that time had not yet been reached.
15 After making a number of additional comments, including comments that were critical of The West Australian newspaper in respect of the article published that morning, as well as in respect of two other "unjustified attacks on the District Court", the primary Judge inquired of Ms Galati whether there was any reason why she should not make a suppression order concerning events on the 8th February and also as regards those on the 9th February 2005.
16 Ms Galati, who had filed no application and placed no evidence before the Court, proceeded to make a number of submissions. She mentioned that the fact of Klavins' plea of guilty had been published in the newspaper and that the fact that he was to be a witness in relation to his alleged co-conspirators had also been widely published. She went on to make a number of submissions in support of the proposition that reasons for the closing of the Court should be made public, and that leave should also be given to publish the sentence that Klavins had received.
17 The primary Judge declined to allow any further publication in respect of the proceedings. She reiterated that, based on the information that she had received, she believed that the possibility of harm being done
(Page 10)
- to Klavins would be exacerbated by publicity. She said that she would make a suppression order to endure until further order of the Court, upon the understanding that the order would eventually have to be lifted and lose its purpose because a time would come when "everything will be known". She then made an order prohibiting any publication concerning the proceedings that had taken place before her between 9 am and 9.30 am on 8 February 2005 and also concerning the proceedings that had taken place before her that morning.
Subsequent events
18 On 3 March 2005 the applicant filed its originating motion for leave to appeal. Then, on 25 May 2005, the applicant applied for an order that its solicitor and counsel should have leave to obtain a copy of the transcript of the proceedings on 8 and 9 February 2005 for the purposes of the application for leave to appeal. Its counsel foreshadowed that the applicant might bring an application for prerogative relief, in respect of which access to the transcript was also required. Leave was given accordingly, although the sentencing Judge said that she remained concerned about Klavins' safety. She mentioned that she had previously been told that Klavins had been in custody for a long time and that, every time there was something in the newspaper, he had had to shift to a different prison. She said that it was "getting to the stage where superintendents of prisons were refusing to take him". She also said that, although Klavins was no longer in prison, she was very anxious that "it [presumably information regarding Klavins' cooperation and the fact that a suspended sentence had been imposed upon him] not get out".
19 On 8 July 2005 the applicant filed its notice of originating motion seeking prerogative relief. An order nisi was granted in those proceedings on 1 August 2005. However, we were told by counsel for the applicant that the application for prerogative relief was lodged only to cover the possibility that this Court might find that there was no jurisdiction to grant leave to appeal to the applicant. He said that, if the Court should find that the application for leave to appeal was competent, the application for prerogative relief was not pursued.
20 On 31 January 2006, the State of Western Australia applied for an order discharging the suppression orders that had been made by the primary Judge. The application was heard by Wisbey DCJ, who discharged the orders. The application was brought, and the orders were discharged, because the trial of Klavins' alleged co-conspirators was imminent and the State was required to disclose to them the fact of
(Page 11)
- Klavins' cooperation and the fact that it had resulted in the imposition of a suspended sentence. The prosecutor said, in the course of making the application, that the fact of Klavins' cooperation was well-known and, indeed, that it was Van Tongeren who had given a copy of his statement to the press. Evidence was given to the effect that Klavins had been served with the application to discharge the suppression orders and that he did not oppose the discharge.
21 Because the District Court file revealed very little in respect of the information that had been before the primary Judge on 8 February 2005 (there was nothing on it, in respect of the hearings on 8 and 9 February 2005, other than a sealed copy of the "letter of comfort" that had been written in respect of Klavins' cooperation), the State Solicitor's office wrote to the sentencing Judge in April 2006, asking her (for the purposes of these applications) what information she had received before coming into Court on 8 February 2005. She responded by letter dated 20 April 2006. In it, she said that she had been unable to locate the file and that the information provided by her in that letter was consequently based upon her memory of events. However, she said that she was confident that there was no document provided to her by anyone in relation to the matter. She said that the file before her would have been that relating to Klavins although it may also have related to "some other accused person who falls roughly within the category of 'white supremist'". She went on to say:
"So far as the information before coming into court is concerned, I was advised through my Associate that the information from the people protecting the accused was that there were considerable difficulties in relation to continuing to protect the accused and his family and also that the prison authorities were being harassed."
- The letter mentioned that the primary Judge had been unaware of previous media interest in Klavins but that she doubted that this would have impacted on her decision had she known of it.
Competence of the application for leave to appeal
22 That brings me to the question whether, in the circumstances to which I have referred, an application by the applicant for leave to appeal is competent. That question is answered by s 79 of the District Court of Western Australia Act 1969 (WA). Subsection 79(1) reads as follows:
"(1) A party to an action or matter who is dissatisfied with —
- (a) a final judgment, may appeal from that judgment to the Court of Appeal;
(b) a judgment that is not a final judgment or an order remitting any action or matter from one court to another, may by leave of the Court of Appeal, appeal to the Court of Appeal,
notwithstanding that the action or matter to which the final judgment or judgment relates may have been brought in the Court by consent as provided in this Act."
23 There is no doubt that the making of a suppression order is a judgment for the purposes of subs (b). The word "judgment" is defined in s 6(1) of the Act (in common with other definitions, "unless the contrary intention appears") to include an "order or other decision or determination of the Court or a District Court judge". The more difficult question is whether the applicant is a "party" to an "action or matter". The word "party" is defined in s 6(1) to include a person "attending a proceeding, although not named in the record". The word "matter" is defined in s 6(1) to mean "a proceeding in the Court that is commenced otherwise than by writ". The word "proceeding" is not defined in the Act. However, the meaning of that word has been considered in a number of cases. I have previously reviewed these, in Reynolds v Panten [No 1] (1999) 23 WAR 215 at 225 - 226. I will repeat some of what I said in that case, at [51] - [58]:
"51 The first of … [the case to which I was referred] was Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729. That case involved the construction of a rule of the Supreme Court in England (O 2, r 1) which provided, inter alia, that where, 'in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings there has, by reason of anything done or left undone, been a failure to comply with the requirements of … [the] rules … , the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein'. Lord Denning MR said that the rule should be construed widely and generously in order to give effect to its manifest intentions and that any application to the court, however informal, is a 'proceeding'.
(Page 13)
- 52 That might well be so in the context of the rule there under consideration and it would, I think, be difficult to cavil with the conclusion that an application, which the court had there to consider, for leave to issue proceedings out of time did constitute a proceeding for the purposes of that rule. However that case is, in my opinion, of little assistance as regards the construction of the provisions here under consideration having regard for their different purpose and context.
53 The same is true of other cases to which I was referred, including Attorney-General v Wentworth (1988) 14 NSWLR 481 in which the court had to consider what were 'vexatious legal proceedings' for the purposes of s 84(1) of the Supreme Court Act 1970 (NSW). Indeed, Roden J there agreed with what had been said by Willmer LJ in Re Vernazza [1960] 1 QB 197 at 215 to the effect that it was an 'almost impossible' task to produce a definition of 'the institution of proceedings'.
54 Next, I was referred to Blake v Norris (1990) 20 NSWLR 300 in which Smart J considered the meaning of the words 'a proceeding' in s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). His Honour there mentioned that the Shorter Oxford English Dictionary on Historical Principles (3rd ed, 1933) at p 1677, defines a 'proceeding' inter alia as: "The instituting or carrying on of an action at law; a legal action or process; any act done by authority of a court of law; any step taken in a cause by either party".
55 His Honour also mentioned that in Stroud's Judicial Dictionary (5th ed) vol 4 at pp 2029 - 2035, some 55 instances are given of the use of the word 'proceeding' or 'proceedings' in legislation, rules of court or documents having legal significance. In each case, as might be expected, the meaning depended upon the context in which the word was used. Smart J went on to say (at 306):
'The Oxford Companion To Law (1980) by Professor Walker states (at pp 1002 - 1003) that "proceedings" is sometimes used as including, or
- meaning, an action or prosecution, and sometimes as meaning a step in an action. The word "proceeding" is capable of such a variety of meaning that dictionary definitions as to its ordinary or natural meaning are not of much use. They tend to highlight the number of meanings which the word can bear.
Any assistance as to its meaning has to be derived from the statutory context and the objects of the legislation in question'.
- 56 That must, in my opinion, plainly be so.
57 The last of the cases to which I was referred in this respect is that of Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446. In that case Finn J had to consider the phrase 'proceeding in a court against the company' in s 440D(1) of the Corporations Law. His Honour there said (at 270):
'It is the case that the word "proceeding" can, as a matter of express definition or of proper construction in a given setting, both include or exclude the initiation in a court of a step in an application or action. The definition of "proceeding" in the Federal Court of Australia Act 1976 (Cth), s 3, for example, in its reference to "an incidental proceeding in the course of, or in connection with, a proceeding", is apt to encompass a motion for security for costs. I would also note in passing the considerable variety of contrasting instances noted in exemplification of the word in Stroud's Judicial Dictionary (4th ed) p 2124ff. Counsel for the respective parties in their joint written submission equally drew attention to authorities which in particular settings give a broad or narrow meaning to the term'.
58 It is apparent from these and other like cases decided in different contexts that the meaning of words such as 'proceedings' and, to a lesser extent, 'decision' will, as
- might be expected, ordinarily be coloured by the context in which the word is found."
- (See also Shire of Augusta-Margaret River v Gray (2005) 143 LGERA 55 at [44] - [46], per McLure JA).
24 There is no doubt that the applicant is not a party to an action (defined in s 6(1) to mean "a civil proceeding commenced by writ or in such other manner as is prescribed by rules of court"). However, it seems to me that it is a party to a "matter". In my opinion an application by a newspaper to vary or discharge a suppression order is "a proceeding" for the purposes of the definition of "matter". An application of that kind is necessarily made by someone who is not a party to the proceeding in which the suppression order was made, but who nevertheless has the standing to bring it: Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153. Moreover, it seems to me that s 79(1)(b) was intended to have a wide operation. That is apparent from the definition of "judgment" which, as I have said, includes an "order or other decision or determination" of the Court or a judge and also from the width of the definition of "party" which, as I have said, includes a person who has merely been served with notice of a proceeding, or who attends it, although not named in the record.
25 Counsel appearing as amicus contended that the definitions of "action" and "matter" concern proceedings in their entirety rather than steps in or incidental to proceedings and also that the application to discharge or vary the suppression orders was merely an application in connection with the principal proceedings, being the criminal prosecution of Klavins. He submitted that the application could consequently not, itself, be a "matter" for the purposes of s 79(1). I do not accept these contentions. As I have said, the fact that an appeal lies, with leave, against not only "a judgment", but also an "order or other decision or determination of the Court" and that a "party" who is given the right to apply for leave to appeal includes a person or persons not named in the record seems to me to indicate that an application of the kind under consideration in this case is intended to be a "matter" for the purposes of s 79(1).
Should the Court decline to hear the appeal?
26 Mr Tannin next contended that, even if the application for leave to appeal is competent, the Court should decline to hear it, in the exercise of its discretion, because the issue has become academic. I have mentioned
(Page 16)
- that, on 31 January 2006, Wisbey DCJ discharged both suppression orders.
27 While courts will ordinarily avoid making determinations of hypothetical questions (see Glasgow Navigation Co v Iron Ore Co [1910] AC 293 at 294; Ku-ring-gai Municipal Council v Suburban Centres Pty Ltd [1971] 2 NSWLR 335 at 339 per Else-Mitchell J; and Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 356), they preserve a discretion to determine a question that has ceased to be a live issue between the parties where the determination would be in the public interest: Veloudos v Young (1981) 56 FLR 182 at 190 per Lockhart J, applied in Confederation of Western Australian Industry (Inc) v Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1990) 70 WAIG 1281 at 1282 per Kennedy Rowland and Nicholson JJ; Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38 at 39 per Wheeler J; and Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 at 62. Examples of cases in which the public interest exception has been said to apply include cases in which the issues raised in the appeal have a significance wider than for the purposes of the particular case: MosmanPark at 39, Al Masri at 62; or in which the issue raised in the appeal is otherwise one of continuing importance: Al Masri at 62; or in which there is a conflict between inconsistent decisions which needs to be resolved: Mosman Park at 39.
28 I am prepared to accept that, notwithstanding that the suppression orders have been discharged, there is a sufficient public interest to justify the determination of the questions raised by this application. I have two reasons for arriving at that conclusion. The principal reason is that the fundamental principle that the administration of justice be carried out in public (Bromfield, at 165; Re Robins SM; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511 at [5] - [9]) is an aspect of judicial accountability, with the result that there is some public interest in a determination whether a particular suppression order was or was not properly made, particularly in a case such as this in which each order was in force for over a year. The second, and subsidiary, reason is that, as I shall later explain, these proceedings have been made considerably more difficult because of the informality in the procedures that were adopted in the course of the hearings before the primary Court and it seems to me to be in the public interest that something is said about the way in which such proceedings should be dealt with in future.
(Page 17)
Appeal by way of rehearing
29 Before turning to the grounds of appeal, I should deal briefly with a further contention that was advanced by counsel appearing as amicus. This was to the effect that, because the appeal is by way of rehearing (r 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA)), the Court must conduct a "real review" of the proceedings before the primary Judge and of her reasons for decision, drawing for itself such inferences as may be proper. That may be true, as far as it goes, but it is important to stress that, in a case such as this, where no further evidence has been admitted on the appeal in respect of the circumstances as they existed at the time of the making of the orders appealed against (other than evidence of prior newspaper publications that are only relevant to the extent that the trial Judge was aware of them at the time of the making of the orders, given that those orders have since been discharged) and in which the law has not changed, this Court can only interfere if there was error on the part of the primary Judge: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 per Gleeson CJ, Gaudron and Hayne JJ.
The grounds of appeal
30 There are five grounds of appeal. They read as follows:
"1. The … [primary] Judge erred by failing to take account of, or give any or any sufficient weight to the fundamental principle of the administration of justice that proceedings take place in open court and that publication of those proceedings only be suppressed in exceptional circumstances.
2. The … [primary] Judge erred by failing to take account of, or give any or any sufficient weight to the previous publication of the proceedings against the person under sentence, and in particular the fact that his cooperation with the prosecuting authorities in respect of other named persons awaiting trial was well and truly in the public domain and well known to those persons awaiting trial.
3. Alternatively to Ground 1, if the … [primary] Judge in fact found that there were exceptional circumstances justifying departure from the fundamental principle that proceedings take place in open court, she erred in so
- finding because there was no, or no sufficient basis, for such a finding.
- 4. The … [primary] Judge erred by failing to provide any reasons for her order suppressing the publication of the proceedings.
5. The … [primary] Judge erred by failing to inform the appellant, or its legal representatives, of the reasons for her order suppressing publication of the proceedings with the consequence that the appellant was deprived of the opportunity of knowing the case it had to meet when applying to lift the suppression order."
31 Before addressing these grounds, it is important to stress two points.
32 The first is that each of the grounds must be looked at in the context of the limited application that had been made by Ms Galati on behalf of the applicant. She made it plain that she did not challenge the making of what she referred to as the "in-camera order" on 8 February 2005. All she sought (as was acknowledged by counsel for the applicant at the hearing of this application) was leave to publish the primary Judge's reasons for closing the Court and the sentence that had been imposed on Klavins. Consequently, all that can be challenged is the refusal by the primary Judge to allow that limited publication.
33 The second is that the appeal challenges an exercise of discretion. Before an appellate court may reverse a decision founded upon the exercise of a judicial discretion it must be satisfied, by reference to well established principles, that the discretion has miscarried. In House v The King (1936) 55 CLR 499 at 504- 505 Dixon, Evatt and McTiernan JJ said:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing
(Page 19)
- so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."
34 The meaning of the statement that an appellate court may interfere with an exercise of discretion when it is satisfied that no weight, or, as it is sometimes said, insufficient weight, has been given to a material consideration was explained by Latham CJ in Lovell v Lovell (1950) 81 CLR 513 at 519 (applied in Mallet v Mallet (1989) 156 CLR 605 at 614) as follows:
"If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court."
Grounds 1, 2 and 3
35 I will deal with grounds 1, 2 and 3 together.
36 The fundamental importance of openness in the administration of justice has repeatedly been stressed. In this State, the more pertinent authorities have been collected in Bromfield at 179 - 183 per Rowland J, and at 193 per Nicholson J, and in ReRobins at [5] - [9] per Ipp J. I will not repeat what has there been said, other than by quoting what was said by Gibbs J in Russell v Russell (1976) 134 CLR 495 at 520, where he identified the basis for the principle 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
(Page 20)
- 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."
37 I should also repeat what was said by Samuels JA in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 61, as follows:
"The inquiry must start with the proposition, central to our notions of forensic procedure, that the courts customarily conduct their business in public in order that the integrity, fairness and efficiency of the system, and its administrators, may be maintained by its exposure to public scrutiny. One corollary is the freedom to publish to the public fair reports of the court's proceedings."
- (See also, in this last respect, Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 - 477; and John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324 at [20]).
38 Of course, the principle of open justice is not absolute. There are exceptions to it, albeit these are few and strictly defined: John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 at 707 per Spigelman CJ; and see R v Kwok (2005) 64 NSWLR 335. In this State, at the time of the orders made by the primary Judge, s 635(2) of the Criminal Code (WA) provided that, if satisfied that it is necessary for the proper administration of justice to do so, a court may, amongst other things, exclude persons from the court-room during a criminal proceeding and make an order prohibiting publication outside the court-room of the whole or any part of the proceedings (see, now, s 171 of the Criminal Procedure Act 2004 (WA)).
39 In John Fairfax & Sons Ltd v Police Tribunal, above, at 476 - 477 McHugh JA said, amongst other things, that a court can only depart from the requirement of open justice where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule, that the making of the order must be reasonably necessary, that there must be some material before the court upon which it can reasonably reach the
(Page 21)
- conclusion that it is necessary to make an order prohibiting publication and that mere belief that the order is necessary is insufficient.
40 Sometimes, as Kirby P (as his Honour then was) said in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 at 141, the very openness of court proceedings might destroy the attainment of justice in particular cases (as, for example, where the activities of a blackmailer are vindicated) or discourage its attainment (for example, by frightening off blackmail victims or informers). Similarly, open justice might derogate from urgent considerations of public interest as, for example, by endangering national security. An exception to the principle would also be justified in circumstances in which publication would put at risk the life of a particular person or persons. Whatever the ground, it must be both exceptional and compelling: Raybos Australia at 54 - 55; TK v Australian Red Cross Society (1989) 1 WAR 335 at 336 - 337; and Re Robins, at [9]. However, it has not been the practice of courts to require evidence that the consequences conventionally attributed to the disclosure of names in cases involving informers (or in cases involving blackmail, extortion or security issues) will actually eventuate. Rather, the courts have inferred that they will, in the absence of proof to the contrary: John Fairfax Group, above, at 163 per Mahoney JA. Exceptions to the open justice principle have often been allowed in order to protect informers: see Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246 ff; John Fairfax & Sons Ltd v Police Tribunal, above, at 472; and John Fairfax Group, above, at 141 and 161. This has usually been because the future supply of information from such persons will otherwise be put at risk and because of the danger to the informer.
41 It has been said in a civil law context, in David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NSWLR 294, that the fact that proceedings may be held in camera does not justify the judgment or orders being completely withheld from disclosure and that justice requires that, wherever possible, an appropriately formulated statement of reasons should be made which conveys an adequate account of the litigation and the reasons underlying the orders such as will ensure any confidentiality which a party may be entitled to have protected: see at 299 - 301 per Street CJ (who found it difficult to conceive of any case in which it is impossible to provide some statement by way of public account of the proceedings and reasons), at 307 - 308 per Hutley AP, at 310 - 311 per Samuels JA; and see also John Fairfax & Sons v Police Tribunal, above, at 477; and John Fairfax Publications Ltd v District Court, above, at [61] - [62] per Spigelman CJ. However, while the general principle is
(Page 22)
- undoubtedly applicable, even in criminal proceedings, it may not always be achievable in sentencing proceedings of the kind in this case, where the principal consideration applicable to the sentencing of the accused is his cooperation with the authorities in providing information in respect of offences committed by others and in which the leniency of the sentence imposed itself speaks volumes as regards the extent of the cooperation provided.
42 In my opinion, the primary Judge understood these principles. It is plain from what she said that she regarded this as an exceptional case. She said, in effect, that she had formed the view that Klavins' life, and that of his family, was in serious peril because of his status as an informer, that the risk was continuing, that it would be exacerbated by publicity and that it was incumbent on the Court to take all necessary action to minimise the continuing risk. That conclusion, if it was open to her on the evidence, was sufficient to justify an exception to the fundamental principle and it was plainly upon that basis that she declined to allow publication of her reasons for closing the Court and of the sentence imposed by her. Ground 1 has consequently not been made out.
43 That brings me to ground 2, which complains that the primary Judge failed to take account of, or to give sufficient weight to, prior publications concerning Klavins' cooperation with the prosecuting authorities.
44 What the primary Judge knew concerning the prior publications at the time of making the suppression orders was a good deal less than was made known to us. Her knowledge was as follows. As I have mentioned, she had been told on 8 February 2005 (without objection from the prosecutor) that the media had "really gone to town on this whole matter" (although the Judge was unaware of the content of any prior newspaper publications), that the media had a copy of Klavins' deposition, or a portion of it, that the deposition "wasn't reproduced exactly in the media" and that "it was certainly known in the media that people are giving evidence against Jack Van Tongeren". Next, I have said that she had read the newspaper article, published on 9 February 2005, that had revealed that Klavins had pleaded guilty to four counts of conspiracy with others to fire bomb Chinese restaurants, that he had "rolled over" and that he would be a key witness against his alleged co-conspirators. Finally, as I have earlier said, she was told from the bar table by Ms Galati, on 9 February 2005, that Klavins' "appearance" had, until the previous day, been published "quite widely" as had the fact that he was to be a witness in relation to the other accused on the conspiracy charge.
(Page 23)
45 This information had, of course, to be considered in conjunction with other information available to the primary Judge. This included the information provided by Mr Tudori on 8 February 2005 to the effect that Klavins had provided a "very detailed" statement to the police, that he had given information as to the whereabouts of Van Tongeren and others, that he had provided information concerning the capabilities of the ANM, that he would be giving evidence in at least three trials, that the police had provided a "very positive" letter of comfort, countersigned by the Director of Public Prosecutions, that, in order to keep Klavins safe, he was constantly moved from prison to prison, that the risk to his safety was so great that some prisons would not take him and that there had been threats in respect of him by the Club Deroes. All of this information was, as I have said, received by the trial Judge from Mr Tudori without objection from the prosecutor. On the strength of it, the sentencing Judge accepted that Klavins was in considerable danger and that the assistance he had given was extremely valuable.
46 In all of these circumstances, it seems to me that it was open to the primary Judge to conclude that, notwithstanding the fact of prior publicity, Klavins, and his family, were still in considerable danger and that further publication was likely to exacerbate the danger, more particularly if it became known that Klavins had received only a suspended sentence and that he was at large in the community. It can consequently not be said that the primary Judge erred by failing to take account of, or given any sufficient weight to, the prior publications. She was required to balance what she knew of those prior publications against the other factors to which I have referred as, indeed, she did. In my opinion, it cannot be said that her decision was so unreasonable as necessarily to reflect error.
47 Nor, so far as ground 3 is concerned, can it be said, in the circumstances to which I have referred, that there was no sufficient basis for a finding of exceptional circumstances sufficient to justify a departure from the fundamental principle that proceedings take place in open court. While there was little by way of evidence before the trial Judge, what had been said to her by Mr Tudori concerning the threats to his client, the problems that had been experienced by prison authorities and the general concern for his safety was accepted by the prosecutor who, as I have said, made no objection to any of these statements and appeared to acknowledge the risk to Klavins that had been identified by Mr Tudori.
48 I should add, to the extent that this may be comprehended within ground 3, that it seems to me that this was not a case in which it was
(Page 24)
- reasonably possible to formulate reasons which would preserve confidentiality. If the fact of the imposition of a suspended sentence had been disclosed this would, as I have said, have spoken volumes as regards the extent of Klavins' cooperation, given his previous activities and the seriousness of the charge to which he had pleaded guilty. It would also have disclosed to any person desiring to harm him (and the risk of harm may well have been greater as the trial of his co-offenders approached) that he was at large in the community. If the fact that a suspended sentence had been imposed, and the principal consideration that had led to the imposition of so lenient a sentence, could not be disclosed, then it is difficult to see how any reasons on the part of the primary Judge could sensibly have been made public. It is also important to bear in mind that the suppression orders were intended only to operate, as they did, until the trial of Klavins' co-offenders, with the consequence that the media would be free to publish all that had occurred once that stage was reached.
Ground 4
49 It is incorrect to assert, as ground 4 does, that the sentencing Judge failed to provide any reasons for her order suppressing the publication of the proceedings. I have already mentioned that, before inviting submissions from Ms Galati on 9 February 2005, the primary Judge told her that she had closed the Court on the previous day because she had formed the view that the life of Klavins, and that of his family, was "in serious peril, that the risk was continuing and that it would be exacerbated by publicity". Then, after submissions had been made by Ms Galati (and it is important to bear in mind that she sought no more than that the applicant be permitted to report the fact that the primary Judge had closed the Court because of her concerns concerning Klavins' safety, the fact that Klavins had pleaded guilty and the sentence that had been imposed), the primary Judge made it plain that she remained of her original opinion concerning the safety of Klavins and his family. Also, she pointed out that the suppression order would not be permanent and would endure only until such time as it became necessary to disclose to Klavins' co-conspirators the full extent of his cooperation and the reduced sentence that he had obtained as a result of it.
50 While it is true that the primary Judge did not disclose what information had been received by her before coming into Court on 8 February 2005 or the information gleaned by her from the file at which she had looked, and while, with respect, it would plainly have been preferable for her to have done so, it was obvious from what she said that her principal concern for the safety of Klavins and his family arose out of
(Page 25)
- the fact that he had provided valuable information concerning, and was to give evidence against, others associated with the ANM (as the applicant knew) and that, as she told Ms Galati, she was concerned that further publicity concerning the sentencing proceedings would exacerbate the position, even if the general fact of Klavins' cooperation was already known.
51 Had the applicant applied for, or wished to apply for, the lifting of the entirety of the suppression orders that had been made on the previous day, there might have been substance to a contention that the reasons given were inadequate for the purpose of knowing upon what basis they had been made. However, as I have stressed, that was not what the applicant sought. All that Ms Galati applied for on its behalf was leave to publish the reasons for making the suppression order, being, in effect, the primary Judge's concern for Klavins' safety, and the sentence that had been imposed upon him. Having been told by the primary Judge of her concerns for Klavins' safety, Ms Galati said:
"If your Honour takes the view that there are matters that jeopardise this individual's safety, then so be it. Allow our client, and to that extent the rest of the media to report the fact that you were so concerned that you closed the court; that you remain concerned about the safety of the witness, but that he pleaded guilty and that he received a sentence and what that sentence was."
52 It is important to bear in mind that inadequacy of reasons does not necessarily amount to an appealable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 444; Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at 283 [29]. In my opinion, the brevity of the reasons did not lead to any miscarriage so far as the applicant's application was concerned. As I have said, the basis for the decision was sufficiently identified for the very limited purpose for which it was required.
53 Ground 4 has consequently not been made out.
Ground 5
54 It is not entirely clear to me what is intended by ground 5, bearing in mind the limited application that was made by the applicant. I have said
(Page 26)
- that its solicitors, in their letter dated 8 February 2005, did no more than inquire whether or not the primary Judge was prepared to publish the reasons for closing the Court on that day and the sentence that she had imposed. As I have already said, she provided those reasons on the following morning. Having listened to them, the solicitor for the applicant chose, forthwith, to make the limited application to which I have referred rather than to make any additional enquiries or to adjourn the proceedings in order to enable her to consider what had been said and to prepare such application, and supporting affidavit or affidavits, as she thought appropriate (and to give to Klavins and the State notice of that application). In the circumstances, and taking into account what I have said in respect of ground 4, I am not persuaded that there was a failure to inform the applicant of the reasons that had led to the closing of the Court on the previous occasion of a kind which deprived the applicant of the opportunity of knowing "the case it had to meet" when applying to vary the suppression orders in the limited respects to which I have referred.
55 I am consequently not persuaded that ground 5 has been made out.
Conclusion – application for leave to appeal
56 Having regard for the conclusions at which I have arrived in respect of each of the proposed grounds of appeal, I would refuse the application for leave to appeal.
The application for prerogative relief
57 Because the application for prerogative relief was, as I have said, pursued only if the application for leave to appeal was found to have been incompetent, it is unnecessary for me to deal with it. That being so, it is appropriate that the order nisi should be discharged.
Procedural issues
58 Before leaving the matter, I should, as I have foreshadowed, make some comments concerning the procedural issues. The informality with which the proceedings were conducted has led to a number of difficulties. First, although this is not material to the outcome of the appeal, the basis upon which the primary Judge closed the Court on 8 February 2005 was not made apparent at the time at which that was done. As I have pointed out, the order was made before any factual information was provided in open court. It was presumably made in reliance upon the information which had been provided to or obtained by the primary Judge before the commencement of the hearing on that day and which was seemingly
(Page 27)
- repeated in the course of Mr Tudori's submissions. I have said that the primary Judge's subsequent letter reveals that she had before her the file relating to Klavins' prosecution and also information, received through her associate, "from the people protecting the accused" that revealed "considerable difficulties in relation to continuing to protect the accused and his family". No record of this information appears on the file or on the transcript of the proceedings. While it does seem, from the primary Judge's letter, that her associate contacted the parties in advance of the hearing concerning the prospect of closure of the Court, there is no record, also, of that contact or of the response made on behalf of the parties. I have said that the only application appears to have been that made orally by Mr Tudori at the invitation of the primary Judge.
59 Next, no formal application was ever made for the discharge or variation of the order that had been made on the previous day. As I have said, there was only a request that the primary Judge allow publication of her reasons for making that order and the sentence that she had imposed. Indeed, no hearing was even sought in that respect although, as I have also said, the primary Judge invited counsel for the applicant to appear before her on the following morning for the purpose of receiving the reasons to which reference had been made and, having provided them, inquired whether there was any reason why suppression orders should not be made.
60 In my respectful opinion, all of this was unsatisfactory. The importance of the fundamental principle to which I have referred, and the need for accountability, is such that no suppression order should ordinarily be made without recording, for the purposes of the transcript at least, the information upon which that order was based, whether it be one or more of material on the Court file, information submitted by consent from the bar table (and the primary Judge would still have to be satisfied as to the reliability of that information and as regards the weight to be accorded to it) or evidence on oath: see R v Tait (1979) 46 FLR 386 at 407. It is equally important that the judicial officer should give adequate reasons for making the order. Where this can be done without defeating the purpose of the order (and I accept that that may sometimes be difficult, as it was in this case), publication of the reasons, or edited reasons, should be permitted.
61 While I doubt that much would be achieved by requiring a party seeking a suppression order to file and serve a formal application in that regard, at least where the grounds upon which it is based are undisputed (and it is noteworthy that s 121 of the Criminal Procedure Act provides that a suppression order can be made by a court on an application by a
(Page 28)
- party to the case or on its own initiative), where the application depends upon evidence that is or may be contested an affidavit or affidavits should be filed. In every case the facts relied upon should be identified on the transcript or by some other written record.
62 As to the practice which appears to have developed of making an informal application, either orally or by letter, to vary or discharge a suppression order, without giving any notice to the person or persons affected, this has little to commend it. I recognise, of course, that there will be cases in which the media does no more than seek to be heard in opposition to the making of a suppression order before it has been made. In those cases, there is no need for it to lodge any application or to give anyone notice. However, where an order has been made it seems to me that any application to vary or discharge it should be made only after giving notice to affected parties (even if only short notice) and, at least in cases where urgency in pursuing or protecting the public interest does not demand otherwise, that the application should be made in writing and, where necessary, supported by affidavit evidence.
63 ROBERTS-SMITH JA: I agree with the reasons and conclusions of Steytler P, including his Honour's additional observations on the procedural issues.
64 McLURE JA: I agree with Steytler P.
19
35
3