Re Pamela Hogan Magistrate Of the Magistrates Court At Perth

[2009] WASC 31

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE PAMELA HOGAN MAGISTRATE OF THE MAGISTRATES COURT AT PERTH; EX PARTE WEST AUSTRALIAN NEWSPAPERS LTD [2009] WASC 31

CORAM:   EM HEENAN J

HEARD:   19 JANUARY 2009

DELIVERED          :   19 JANUARY 2009

PUBLISHED           :  17 FEBRUARY 2009

FILE NO/S:   CIV 2552 of 2008

MATTER                :An application under the Magistrates Court Act 2004 section 36 for a review order against Ms Pamela Hogan, Magistrate of the Magistrates Court at Perth

EX PARTE

WEST AUSTRALIAN NEWSPAPERS LTD
First Applicant

CHANNEL SEVEN PERTH PTY LTD
Second Applicant

Catchwords:

Application for review of magistrate's orders to limit or prohibit publication of certain evidence given in open court in prosecutions for assault - Very young children - No arguable error demonstrated

Legislation:

Criminal Procedure Act 2005 (WA), s 171
Magistrates Courts (General) Rules 2005 (WA), r 41
Magistrates Courts Act 2004 (WA), s 36
Victims of Crime Act 1994 (WA)

Result:

Application for review order dismissed

Category:    B

Representation:

Counsel:

First Applicant               :     Mr J D MacLaurin

Second Applicant          :     Mr J D MacLaurin

Solicitors:

First Applicant               :     Edwards Wallace

Second Applicant          :     Edwards Wallace

Case(s) referred to in judgment(s):

Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd No 3 [2002] FCA 609

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163

De Alwis v Department of Housing and Works [2006] WASC 14

John Fairfax Publications v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344

John Fairfax v Police Tribunal of New South Wales (1986) 5 NSWLR 465

R v Davis [1995] FCA 1321; (1995) 57 FCR 512

Re Bromfield Ex Parte WA Newspapers Ltd (1991) 6 WAR 153

Re Ex Parte Bartholomew [2008] WASC 52

Re Hogan Ex Parte Channel Seven Perth Pty Ltd [2008] WASC 113

Re Michelides; Ex Parte Chin [2008] WASC 256

Russell v Russell [1976] HCA 23; (1976) 134 CLR 495

Thompson v Lane [2005] WASC 281

1. EM HEENAN J:  I have before me an ex parte application brought by West Australian Newspapers Ltd and Channel Seven Perth Pty Ltd, two well‑known media corporations, one a publisher of a newspaper with associated media outlets, and the second a television broadcaster with associated activities.

2. By this motion dated 20 November 2008, each applicant seeks review orders of two decisions, made by a learned magistrate in the Magistrates Court at Perth, in the course of criminal proceedings, WA Police v Siobhan Tapscott and Linda Foulds.  They seek to set aside orders made by her Honour relating to the suppression of the names of certain children and prohibiting the use of videotape evidence which was adduced in the proceedings. 

3. This litigation has a long history and it has come before this court in several different forms before.  I shall state at this point just the bare outlines of the litigation.  In proceedings instituted in the Magistrates Court a series of charges were made against two named women alleging that they had committed offences of assault against a number of children in their care at a day centre for very small children.  The substance of the allegations was that, in order to control or restrain or quieten the children, the accused persons had improperly tied their legs with sheets or other devices and restrained their freedom within cots or other places in the day care centre.  The charges went to trial before her Honour Magistrate Hogan and after a trial of some days, her Honour reserved her decision.  During the course of the trial there was adduced into evidence and played in the course of proceedings, without any apparent restriction and without the imposition of any conditions imposed by her Honour, a videotape said to display the situation in which at least some of the children were allegedly so restrained.  During the time when her Honour was considering her decision an application was made by one or both of the present applicants for access to the videotape, presumably for the purposes of considering whether or not any and, if so, what kind of reference might be made to it or to its contents when reporting the proceedings. 

4. Her Honour refused that application on grounds that the applicant newspaper or television station or both was not a person with a sufficient interest to warrant such an order being made.

5. That refusal was the subject of an application to this court for a review order pursuant to the Magistrates Court Act and that review was successful.  Before dealing with the course of what I will call the first review proceedings I will mention the outcomes of the prosecution.  There were seven charges against the first accused and seven charges against the second accused, each involving allegations of assault.  When her Honour delivered her reserved decision all seven charges against Ms Tapscott were dismissed and six of the seven charges against Ms Foulds were dismissed.  Her Honour then dealt with the question of penalty in relation to the remaining charge on which Ms Foulds was convicted.   No restraints of any kind were made or ordered in relation to the outcome of the proceedings. 

6. In the course of the first review proceedings a very detailed account of the principles of open justice, as they have been referred to in the proceedings, was given and this is to be found in the decision of Blaxell J of 13 June 2008, Re Hogan Ex Parte Channel Seven Perth Pty Ltd [2008] WASC 113. The result was to set aside the decision of her Honour refusing access to the videotape material but to remit the application to the learned magistrate in order to determine what conditions, if any, might be imposed on the release of the copy of the videotape to each applicant. Blaxell J conducted, if I may say so with respect, an extremely thorough and comprehensive examination of the authorities which emphasise the great importance which is to be given to the freedom of the press to report on the details of legal proceedings and to have access to the materials which are referred to in evidence except in a comparatively limited number of cases and then only under controls imposed by statute or conferred upon a judicial officer by discretion.

7. In the course of his examination Blaxell J at [17] referred to the classic Australian statement of the fundamental principle of open justice found in Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 in the judgment of Gibbs J at 570. His Honour also referred to other prominent authorities dealing with this area of the law, notably the decision of the Full Court of this stage in Re Bromfield Ex Parte WA Newspapers Ltd (1991) 6 WAR 153 and to similar decisions of other courts, including the Full Federal Court in R v Davis [1995] FCA 1321; (1995) 57 FCR 512 and in the Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd No 3 [2002] FCA 609 per Finkelstein J.

8. His Honour referred to many other decisions dealing with the same subject matter, which I shall not here repeat, and at [30] came to the conclusion:

   In the great majority of cases where these circumstances arise an adequate public comprehension of the contents of the document will be achieved by a simple inspection of the same by the media.  However, there will always be the occasional case

9. of which the present may be one

   where the publication of a printed or spoken description of the exhibit would not enable the public to fully comprehend what it contains.  If in the present case it is necessary to view the video in order to appreciate the nature of the evidence and to adequately scrutinise the decision of the magistrate then, in my opinion, the media would have a valid interest in obtaining a copy of the same. 

10. His Honour went on to say in [31]:

    Quite apart from the interest which arises from the operation of the principle of open justice there are also authorities which suggest that the media has an interest in proceedings by reason of it being in the business of reporting…

11. and his Honour then listed his reasons and the authorities. 

12. His Honour then reviewed the cases dealing with whom are regarded as parties interested and concluded that the applicants plainly were parties interested and, accordingly, decided that the order made by the magistrate prohibiting access by the media to the videotape should be set aside.

13. In the process his Honour's attention was directed to the Magistrates Court (General) Rules 2005 which govern the manner in which applications or requests for access to court records are dealt with.  His Honour set these out at [6 ] and following of his reasons.  After dealing with those regulations insofar as they dealt with requests to inspect or obtain a copy of the record, and how such requests were to be dealt with, his Honour drew attention to reg 41 which I quote:

    41.  Conditions on access may be imposed. 

    (1) A registrar or magistrate granting a request referred to in rule 37 or an application referred to in rule 39 may impose any conditions on the applicant's access to the record as is just;

    (2)Without limiting subrule (1) conditions may be imposed

    (a)to prevent the record from being damaged, interfered with or lost;

    (b)to prevent the improper use or publication of the record or any information in it.

14. Blaxell J took the view that it was at least possible that a condition or conditions under reg 41 might be imposed in relation to access to this videotape and, being of that opinion, ordered that the matter should be referred to the learned magistrate for determination of the conditions, if any, which should be imposed on the release of a copy of the exhibit to each applicant.

15. What then happened was that after the referral by Blaxell J, the matter came before Magistrate Hogan again on 11 July, in what appears to have been a directions hearing, resulting in orders and directions being made requiring notice to be given to interested parties, the accused, the parents of the children and the former owners of the child care centre.

16. Then there was a hearing before her Honour on 5 September 2008 in which a number of those interests were represented.  Submissions were received from the former owners of the child care centre, a parent of one of the children, written submissions from the defendants.  The Commissioner of Police, to whom notice had been given, appeared as an amicus curiae.

17. Her Honour again reserved her decision, published reasons for that decision and made final orders on 25 September 2008.  The orders which her Honour made on that occasion and her reasons appear as an exhibit to the affidavit of Ms Di Lena sworn 20 November 2008 on this application.  They commence at page 8 of that affidavit and continue to page 17.

18. Her Honour canvassed the issues before her and gave detailed attention to the decision of Blaxell J which I have mentioned and which her Honour termed 'the Channel Seven case', quoting extensively from Blaxell J's reasons.  After canvassing a series of matters, her Honour concluded that access to the videotape should be given to both applicants but that a condition should be imposed absolutely prohibiting publication of the videotape.  That is the first of the decisions which is the subject of review on the present application.

19. Secondly, in the course of dealing with this matter her Honour also made an order pursuant to s 171 of the Criminal Procedure Act which prohibited, for all time, the publication of the names of any of the children who were the subject of the proceedings.  That is the second order which is the subject of the present application.

20. The reason for the ex parte nature of the applications before today is to allow, as it were, a preliminary review order to be made or for directions to be given that persons potentially affected by the making of any order should show cause why the decision should not be set aside or varied.  The persons contemplated as potential respondents are her Honour the learned magistrate, the Commissioner of Police, the former owners of the child care centre and the family of one of the children.  There is a series of other orders and directions being sought to give effect to the tenor of these orders which would result, if granted, in the matter coming on for hearing after notice had been given and perhaps with some or all of those persons as named respondents or objectors.  Very detailed written submissions have been put in and these have been fully developed and enlarged upon by counsel in support of the application.

21. The motion advances a series of grounds for the proposed orders to be set aside, most of which were amplified by extensive further particulars.  I will list these grounds but without reference to the particulars. 

Ground 1:

1. In relation to the first decision, that is the non‑publication condition upon the videotape record of interview, the first ground is that the learned magistrate erred in applying the wrong test, further or alternatively, misapplying the test as to whether a condition of non‑publication ought to be imposed upon the applicants' access to the exhibit, and thereby erred in finding that such condition ought to be imposed pursuant to r 41 of the rules when there was no sufficient basis or material before the court to justify making that order, and then particulars are given.

Ground 2:

1. The learned magistrate erred in failing properly to take into account, further or alternatively, placed insufficient weight upon the following principles and considerations that are relevant to what conditions are just within the meaning of r 41 of the rules where, upon a proper application of those principles and considerations, there is no sufficient basis or material before the court to justify an order prohibiting publication of the exhibit.  The matters referred to are:

   (a)the principles of open justice are applicable to decisions concerning access to court documents;

   (b)subject matter, scope and evident legislative purpose of s 33(5) of the Magistrates Court Act2004 (WA) and r 41 of the rules, which is the regime for access to court documents, including by the media, and particularly the record of proceedings;

   (c)the basis for the applicant's entitlement to a copy of the exhibit being the media's recognised role and interest as an aspect of open justice in providing fair and accurate reports of court proceedings to the public;

   (d)the nature of the exhibit as part of the record of proceedings which was accepted into evidence and relied upon by the learned magistrate in its visual form and also that the exhibit had been played in open court during the trial of the proceedings.

Ground 3:

1. The learned magistrate erred in finding that the following considerations arose and were relevant, further or alternatively by placing excessive weight on the following considerations, and thereby erred in finding that there was a sufficient basis or material before the court to justify an order of non‑publication of the exhibit:

   (a)the protection of the privacy of the children and of the fact they were depicted in situ in the exhibit having regard also to the provisions of the Victims of Crime Act (WA), and particulars are given;

   (b)a desire to avoid any further publication in the future of material concerning the proceedings upon the basis that re-agitation of the fact of the proceedings may have an adverse effect upon the accused and reactivate distress suffered by the parents;

   (c)the impact publication of the exhibit might have on the former owners of the child care centre;

   (d)the impact publication of the exhibit would have on the persons charged with the offences, and detailed particulars were given; and

   (e)the prospect that publication of the exhibit would deter others from bringing concerns to the attention of the relevant authorities when there was no evidence or any other basis upon which to draw this conclusion and where the circumstances of the case suggest no such effect would flow in the absence of a condition prohibiting publication. 

Ground 4:

1. The learned magistrate erred in failing to consider, or properly consider, ordering conditions upon the applicant's access to the exhibit short of a complete prohibition upon publication of the exhibit.

2. The originating application next refers to the second decision, that is the order for suppression of the names of the children, and in relation to that decision relies upon one single ground, namely, that the learned magistrate erred in applying the wrong test, or misapplying the proper test, under s 171 of the Criminal Procedure Act 2005 (WA) as to when the court could be satisfied it is in the interests of justice to make a non‑publication order which has the effect in perpetuity of suppressing the identities of the child victims, further or alternatively, in finding that there was a basis upon the evidence before the court for such an order, and particulars are given in support of that allegation.

3. In the written submissions in paragraph 2 attention is drawn to the fact that s 36 of the Magistrates Court Act pursuant to which this review application is brought, replaces the prerogative writs of mandamus, prohibition and certiorari which now have been expressly excluded by s 35 of the Act.  That is the effect of the legislation as determined by Simmonds J in Thompson v Lane [2005] WASC 281 and by Murray J in Re Ex Parte Bartholomew [2008] WASC 52. Previously decided cases concerning the prerogative writs may assist in determining whether a review order should be granted but the operation of a review order is now wider in its scope. That was the analysis conducted by Hasluck J in Re Michelides; Ex Parte Chin [2008] WASC 256.

4. Attention is then directed to a series of well known authorities including Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 in relation to the principles to be applied in determining whether or not there has been an error which can be the subject of review under this or comparable legislation. It is submitted that in order to make out an arguable case that it would be just to grant a review order the applicant must show that the judicial officer to whom the review order is directed has misconceived or exceeded his or her jurisdiction or infringed the rules of natural justice or erred in law; further reference to Re Michelides, Ex Parte Chin.

5. Then the submission is that the standard required for a review order is for the applicant to show that there is an arguable case for relief - De Alwis v Department of Housing and Works [2006] WASC 14 - and that it is one that has some prospect of success, as was the phrase used by Hasluck J in Re Michelides.  Then there are extensive written submissions dealing with the alleged error or errors patent or implicit in the decision given by her Honour prohibiting publication of the videotape evidence.  In that process I have been taken extensively to her Honour's reasons for decision and I have already quoted from these to some extent.

6. I think it is important that I should again make reference to r 41, which has already been set out.  There is a wide discretion upon a registrar or a magistrate to impose any conditions on an applicant's access to the records as is just and subrule (2) is expressly without limit to the breadth of that power.

7. There are no express conditions of criteria stated under r 41 against which the decision as to what conditions, if any, might be imposed as is just could be measured or evaluated.  The result, therefore, is to confer a very wide, but not unlimited, discretion upon the registrar or magistrate.

8. In circumstances such as this where the nature of the exercise of the discretion is not expressly constrained and no criteria are expressly mentioned, one must have regard to the nature, purposes and effect of the legislation as a whole in order to determine what are the relevant criteria or what may not be relevant criteria.  The reason for the wide and unspecified range of potential criteria of relevance is no doubt the wide variability of situations in which questions of the exercise or non‑exercise of the power may have to be approached.  This is a case about a prosecution involving suspected offences to small children but there may be prosecutions, or other court proceedings, involving a whole host of other potentialities involving private information, medical information, information from psychiatric hospitals, confidential employment matters, trade secrets and many others.  To attempt to establish comprehensive relevant criteria would be a futile exercise but the purpose of the power illuminates the nature of the criteria; that is, to give prominence and pre‑eminence to the need for public justice but to recognise that there may occasionally be situations in which that needs to be limited or qualified.  Accordingly, it is very difficult to make out a case that any particular matter addressed or relied upon by a magistrate in the exercise of this power is, ipso facto, irrelevant or that some consideration which is relevant has not received appropriate recognition, yet in this case the applicants attempt to demonstrate both of those things.

1. I will turn to the second matter; that is, failure to give recognition to relevant criteria.  Although the submissions were put in different ways, the common thread of the submissions was that the learned magistrate did not have regard or sufficient regard to the importance of full access by the press and media to evidence in court proceedings, or appreciate the importance which has been placed historically and in present days upon the full amplitude of that right.  However, I am quite satisfied that this suggestion of a failure to take that criterion, or variations of it, into account as a relevant consideration has no prospect of being made out.

2. First of all the importance of press access and the principle of open justice was vigorously and comprehensively restated by Blaxell J in the decision published in June of 2008; secondly, her Honour makes frequent references to that decision and in [12] emphasises the importance of open justice in the case cited from New South Wales:  John Fairfax Publications v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344. Therefore, I do not consider that there is any arguable basis for contending that this consideration of open justice was not acknowledged or adequately considered by the learned judge.

3. That brings me to the grounds which seek a review order on the basis that there have been irrelevant considerations taken into account.  In her Honour's reasons for decision at [17] and following her Honour does address, in the specific context of the submissions which were made to her, what she terms are relevant considerations and after extensive examination addresses each in turn.  A number of those are considerations which have been identified in the motion for the review order as being irrelevant.  In addition, it has been submitted that the learned magistrate adopted the wrong test by approaching the case on the basis that the test was whether or not the public, on the information made available to it, could fully understand the criminal proceedings which took place.  However, I do not consider that there is any basis for suggesting that her Honour wrongly took that matter into account; or posed it as the sole or dominant test; or misconstrued its significance in this setting.  That is because, both in the reasons given by Blaxell J in the Channel Seven case and in submissions made to her Honour when hearing the application for access to the videotape evidence there was reference to the decision of John Fairfax v Police Tribunal of New South Wales (1986) 5 NSWLR 465 and specifically to a passage in the judgment of McHugh J at 481 where his Honour said:

   Without the publication of the reports of court proceedings the public would be ignorant of the workings of the courts whose proceedings would inevitably become subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making.

4. The point is that counsel for the media applicants was stressing to her Honour the importance of providing access to the evidence to avoid misinformed speculation about the true nature of the decision-making.  Her Honour obviously accepted that that was a relevant submission which she therefore had to consider.  Her Honour spent some time determining whether or not there was any real potentiality for that risk to occur, but came to the conclusion that there was not, because all the other information in the case allowed a comprehending report and appreciation by the public of the proceedings to be given even if use of the videotape evidence was not allowed. 

5. In the course of submissions I alluded to the fact that judicial review of this kind under s 36 of the Magistrates Court Act and, indeed, under other comparable legislative provisions does not provide an opportunity for a second hearing or an appeal de novo over all issues raised at the determination of the decision under challenge.  Parliament has committed the power to decide what, if any, conditions should be imposed under the rule upon a magistrate or registrar of the court concerned.  It is the magistrate or the registrar exercising that power who has the responsibility for making the decision.  There is no right of appeal on the merits from that decision but there is this application for a review order.

6. However, the review order is limited to ascertaining whether or not there has been some error of law, some error of fact which has resulted in a wrong decision being made according to law, some want of good faith, some excess of jurisdiction, some neglect of a relevant principle of law, the wrongful determination of the proceedings, wholly or in part, by reliance upon some irrelevant consideration, or some wrongful determination, wholly or in part, by failing to take into account some relevant consideration, or indeed such an incongruous result occurring which, although it does not demonstrate any express error of law, is explicable only on the basis that some such error of law has consciously or unconsciously been made.

7. I am not satisfied that there is any arguable basis in this case for considering that the learned magistrate has failed to take into account any relevant consideration, nor am I satisfied that there is any arguable basis that the learned magistrate has taken into account an irrelevant consideration.  It is quite clear that the applicants disagree with the result which her Honour has decided should follow, but I do not consider there is any basis upon which it can be said that there has been any error in principle by her Honour, so I would not be disposed to grant any form of preliminary order in relation to the first decision.

8. That brings me to the second order, the order for a suppression for all time of the names of the children. This was made, as I have already said, under a different statutory provision; namely, s 171 of the Criminal Procedure Act. There are detailed submissions about this in par 30 to par 35 of the written submissions and, so far as is relevant, s 171(4)(c) of the Criminal Procedure Act provides:

   On application by a party to the case or on its own initiative a court may, if satisfied it is in the interests of justice to do so, (c) make an order that prohibits or restricts the publication outside the courtroom of any matter that is likely to lead members of the public to identify a victim of the offence.

9. It was in the exercise of that power that her Honour made the orders prohibiting publication of the names of any of the children.

10. It has to be remembered that these are children of very tender years, babies really.  Her Honour has plainly taken the view that by analogy with other legislative provisions, there is clearly a discernible public interest that detrimental impact on children or the potential for that to occur should be avoided.  I am by no means satisfied that there are any plausible grounds for considering that the decision to prohibit the publication of the names of these very young vulnerable children discloses any arguable error of law.  For that reason, I would refuse to make the review order in respect of that second decision as well. 

11. The result therefore is that I refuse to make any of the orders sought.