Re Peter Mervyn Bartlett, Ronald George Sayers and Deborah Jeanne Grace;
[2012] WASC 34
•6 FEBRUARY 2012
RE PETER MERVYN BARTLETT, RONALD GEORGE SAYERS AND DEBORAH JEANNE GRACE; EX PARTE THE QUEEN [2012] WASC 34
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 34 | |
| Case No: | INS:172/2009 | 1, 3 FEBRUARY 2012 | |
| Coram: | McKECHNIE J | 6/02/12 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN TREVOR NEIL THOMSON PETER MERVYN BARTLETT RONALD GEORGE SAYERS DEBORAH JEANNE GRACE |
Catchwords: | Courts and judges Application for suppression of previous proceedings Principles of open justice Prejudicial material in advance of jury trial Extent of suppression necessary |
Legislation: | Criminal Procedure Act 2004 (WA) Practice Direction 8.2.5 |
Case References: | Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221 West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
THE QUEEN
Prosecutor
AND
TREVOR NEIL THOMSON
Accused
PETER MERVYN BARTLETT
First-named Applicant
RONALD GEORGE SAYERS
Second-named Applicant
DEBORAH JEANNE GRACE
Third-named Applicant
(Page 2)
Catchwords:
Courts and judges - Application for suppression of previous proceedings - Principles of open justice - Prejudicial material in advance of jury trial - Extent of suppression necessary
Legislation:
Criminal Procedure Act 2004 (WA)
Practice Direction 8.2.5
Result:
Application dismissed
Category: B
Representation:
Counsel:
Prosecutor : Mr S M Mullins
Accused : No appearance
First-named Applicant : Mr B D Luscombe (31 January 2012); Mr D G Staehli SC & Mr B D Luscombe (3 February 2012)
Second-named Applicant : Mr B D Luscombe (31 January 2012); Mr D G Staehli SC & Mr B D Luscombe (3 February 2012)
Third-named Applicant : Ms C Davies (31 January 2012) & No appearance (3 February 2012)
Solicitors:
Prosecutor : Director of Public Prosecutions (Cth)
Accused : No appearance
First-named Applicant : Clifford Chance
Second-named Applicant : Clifford Chance
Third-named Applicant : Jackson McDonald
(Page 3)
Case(s) referred to in judgment(s):
Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221
West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10
(Page 4)
- McKECHNIE J:
How this matter comes to court
1 On 6 May 2010, Trevor Neil Thomson pleaded guilty to one count of conspiracy to defraud. On 13 May 2010, he was sentenced to a term of 3 years and 3 months' imprisonment with a minimum term of 13 months upon entering into a recognisance release order.
2 The normal procedure in relation to the sentencing remarks was followed. The remarks were placed on the Supreme Court website and remained there for a period of 28 days. They were then withdrawn. A copy also was placed in the Supreme Court library and an electronic copy on the PLEAS database which is available to lawyers. These two copies are still accessible.
3 Being a charge of conspiracy to defraud it follows that there were other persons who were alleged to have been involved.
4 When commencing the sentencing remarks, I said:
As at this stage charges may be laid against others. My recitation of the facts will mention other people but whether they are guilty of any offence is yet to be determined and they are entitled to the presumption of innocence.
5 The three applicants, Bartlett, Sayers and Grace, were charged with conspiracy to defraud in a prosecution notice signed 14 December 2011 charging them as follows:
Between about 15 August 2002 and 30 June 2003 at Perth in the State of Western Australia Gregory John DUNN, Trevor Neil THOMSON, Ronald George SAYERS, Peter Mervyn BARTLETT and Deborah Jeanne GRACE (nee Cammiade) conspired to intentionally cause a loss or cause a risk of loss to the Commonwealth contrary to subsection 135.4(5) of the Criminal Code (Cth).
6 Clearly from the nature of the charge, any sentencing remarks regarding Mr Thomson's involvement in a conspiracy has the potential for prejudicial effect.
7 The first mention date was 3 February 2012 and the three applicants appeared in court that day.
8 By letter dated 27 January 2012 solicitors for Mr Bartlett and Mr Sayers wrote to the court and subsequently filed submissions seeking orders prohibiting publication of the Thomson plea and sentence pursuant
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- to either of the Criminal Procedure Act 2004 (CPA) s 171(4)(b) or the inherent jurisdiction of the court.
9 Alternatively, they applied for an order pursuant to Practice Direction 8.2.5 removing the Thomson sentencing reasons from an identified accessible repository; the Supreme Court Library and the PLEAS database.
10 On the same date the solicitors also wrote to the Principal Registrar seeking removal of the sentence from the Supreme Court library and the PLEAS database. The reason for the request was put this way:
If a member of the press (whether print, television, radio or Internet) was to access McKechnie J's sentencing remarks on the Thomson matter through the agency of a legal practitioner and either publish those remarks or relevant parts of them as part of any report of the hearing on 3 February 2012 (or a later hearing) this is likely to do irreparable damage to our clients. The power of the media to influence or manipulate perceptions cannot be gainsaid (letter 27 January 2012).
11 The Principal Registrar was of the view that as the Practice Direction refers to 'the court' he lacked power to make the orders sought and so referred the matter to me. I listed the matter for hearing on 31 January 2012. At that time, Ms Davies appeared for the applicant, Ms Grace, who was added to the proceedings.
12 The Commonwealth DPP's attitude to the applications was neutral.
13 I raised with counsel for the applicants, Mr Sayers and Mr Bartlett, the question whether the media should be regarded as the proper contradictor to the application as they are the only persons that would have an interest in arguing to the contrary of a suppression order.
14 After a short adjournment, the parties advised that it would be suitable to argue the matter on Friday, 3 February 2012 at 2.15 pm. A minute of proposed orders was discussed and I directed that a draft minute be submitted to me. I made an order that there be no publication of the applications until further order. I consider that the applicants' request for this suppression order is a reasonable course to take in view of the relief being sought. It was a temporary order pending full argument.
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15 There followed discussion about when the media (as persons interested in a suppression order) should be notified:
LUSCOMBE, MR: If I notify every press outlet - there has been no inquiries about this matter so far. The crown has maintained confidentiality in relation to the matter.
McKECHNIE J: Mr Luscombe, the proceedings on Friday will be before a magistrate in open court.
LUSCOMBE, MR: They will be.
McKECHNIE J: Whether the media know about it or not, I'm not going to be a party to concealing from them something. This is an application you have brought. I think that they require notice of it and that's one of the consequences that may tip them off to an open hearing on Friday. That's not the purpose of any suppression.
LUSCOMBE, MR: Well, with respect, it is, sir. I mean, the purpose, it's tangential, but it is nevertheless, to the extent that there is a reporting, the reporting will be manifestly larger if every single outlet is notified of a hearing.
McKECHNIE J: That is the risk you run (ts 62 - 63).
16 I then indicated that the order should require service by noon on Thursday, 2 February 2012.
17 No draft minute was forthcoming because my Associate received an email on 1 February 2012:
My instructions are to withdraw the applications by my clients, Messrs Bartlett and Sayers, pursuant to s 171(4)(b) of the Criminal Procedure Act made by letter to the Associate to Justice McKechnie dated 27 January 2012. As a consequence, my clients do not press for any orders to be made on that application other than an order for the non-publication of the fact that the application was made. The form of the order sought is therefore as follows:
Pursuant to s 171(4)(b) of the Criminal Procedure Act 2004, until further order publication be prohibited of the application made by Peter Mervyn Bartlett and Ronald George Sayers by letter addressed to the Associate to Justice McKechnie dated 27 January 2012 for orders prohibiting publication outside the courtroom of part of the proceedings in The Queen v Trevor Neil Thomson INS 172 of 2009.
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18 The email also asked that I either refer the matter, under the Practice Direction 8.2.5, back to the Principal Registrar or deal with it on the papers. The proposed order sought pursuant to Practice Direction 8.2.5 is:
[T]hat the sentencing remarks in R v Thomson (Unreported, WASCR INS 172 of 2009, 13 May 2010be removed from the Supreme Court Library and the PLEAS database and that they not be restored until after the trial, appeal or if, after appeal, there is no prospect of a re-trial in the prosecution of Peter Mervyn Bartlett and Ronald George Sayers for conspiracy to defraud contrary to s 135.4 Criminal Code (Cth). The Crown did not oppose this order.
19 As I was not prepared to make an order on the papers, the matter was set down for argument on 3 February 2012 at 2.15 pm.
20 On 2 February 2012, solicitors for the third applicant, Ms Grace, advised my Associate that they were no longer pressing for any orders. I excused their attendance from the further hearing.
21 On 3 February 2012 Mr Staehli SC led for the applicants Mr Sayers and Mr Bartlett.
The principles of open justice
22 These have been stated by the Court of Appeal recently in Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221 and West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10. In Re Hogan Owen JA set out the following:
Free access to the courts by members of the public and by those who observe court proceedings in order to report them to a wider audience is a vital element of the system. Developments are occurring both in the way the media report cases and in access by members of the press to materials used in court proceedings. That is all as it should be. The principle of open justice reflects, protects and contributes to the fulfilment of this aspect of the public interest. But it would, in my view, be wrong to regard the principle of open justice as an end in itself. It is a means to an end; namely, to inform the public about the workings of the third arm of government and to ensure that courts and judges administer the justice system in a way that will maintain and foster its integrity, fairness and efficiency. Without in any way derogating from the proposition that exceptions to the principle of open justice are narrowly confined, each alleged infringement of the principle must be assessed according to its own facts and on its own merits and against the background of the reasons for which the principle exists.
As McLure P has remarked, this involves a balancing of myriad factors. And the weight to be given to such factors will vary according to the
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- nature and the prohibition in question, its connection with the core activities of court proceedings and the extent to which the underlying rationale for the open justice principle may be adversely affected [50], [51].
23 In West Australian Newspapers Ltd Owen JA said:
The principle of open justice has been dealt with extensively by this court, most recently in Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221. I do not intend to repeat what has been said in those cases. Suffice it to say, the court has emphasised that while exceptions to the principle of open justice are narrowly confined, the principle is not absolute and nor does it represent an inflexible dictate. The principle of open justice is a significant element within the proper functioning of the justice system. It promotes veracity of testimony by encouraging attention among those involved in a case to the seriousness of the judicial process. Publicity may cause (or encourage) others with relevant information to come forward. It increases the community's appreciation of the methods of government and confidence in judicial remedies. It also ensures that the fairness, integrity and efficiency of the courts, and its administrators, are subject to public scrutiny. Nevertheless, open justice is not an end in itself; it is a means of bringing about the benefits I have just mentioned which flow from informing the community about the workings of the court. Any challenge to a decision on the basis that the decision intrudes upon the principle of open justice must be assessed in light of the principle's rationale [30].
24 In the present case, a necessary infringement of the principle of open justice might be to ensure a fair trial of the accused by prevention of publication of material that could prejudice that trial by potential jurors becoming acquainted with material that is irrelevant to their ultimate task.
25 At this early stage, and with very limited material before me, I would be unable to form a concluded view as to whether republication of the sentencing remarks of an alleged co-conspirator, some considerable time before the trial, would or would not prejudice the potential jury to such an extent as to warrant an order forbidding republication. However, that application has now been withdrawn.
Removal of sentencing remarks from the Supreme Court library and the PLEAS database
26 The library is maintained in part by the Legal Practice Board for the benefit of practitioners. The electronic PLEAS database is maintained for the same purpose.
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27 Mr Staehli acknowledged that it is unlikely that a juror would ever get access to the sentencing remarks from the Supreme Court library or PLEAS. However, he pressed the application on the basis that it was possible that a journalist seeking more detailed information might locate the material and publish a story which would be prejudicial because it would contain material which, though accepted for the purposes of sentencing of Thomson, would be in issue in the trial. He submitted it is on the cards that there is a potential for prejudice which could be cured by the temporary removal of the sentencing remarks. The submission presupposes a number of things:
• that a journalist could gain access to a library or a database that is solely for the use of lawyers;
• that they would not have in any event a detailed record of the sentencing remarks from 2010.
28 In the absence of an order suppressing publication, there is no reason to remove the sentencing remarks. They form the basis of material that may be valuable to lawyers when advising their clients as to matters of sentence for offences of a similar kind. There is no evidence that the media can gain access to the material but in any event, in the absence of suppression of republication, it would not matter if they did.
29 Why media representatives would wish to undergo this tortuous path is something of a mystery. The Thomson sentence received considerable media coverage at the time and there are references to it on the internet. No doubt media corporations have archives.
30 As the application for suppression of publication is withdrawn, it is open for the applicants to apply again on notice to media organisations should a real issue develop. The removal of the sentencing remarks from the Library and PLEAS database could be reconsidered then.
Continuation of suppression orders
31 Mr Staehli submitted that if the application became known, a journalist may have a reasonable interest and be drawn back to the Thomson sentencing material.
32 I am unable to see how knowledge that the application for suppression was made could possibly affect any subsequent trial. The application for suppression of republication was brought but not proceeded with. No reasonable juror, properly directed by a trial judge to
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- leave extraneous matters out of account, would give any weight to the fact that an application was brought and not proceeded with. Moreover, the applications are not frivolous. It was reasonable to bring it even if the result has been unsuccessful.
33 Open justice requires that proceedings should be publically open and available unless the interests of justice otherwise require. I have not been persuaded that the interests of justice otherwise require.
Orders
1. The application for suppression of republication is withdrawn and taken to be dismissed.
2. The interim order suppressing publication of the fact of the applications is revoked.
3. No order for removal of the sentencing remarks from the Supreme Court library or PLEAS database.
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