Re Williams (a pseudonym) (No 2) - [2016] VSC 364

IN THE SUPREME COURT OF VICTORIA

NOT RESTRICTED

AT MELBOURNE
CRIMINAL DIVISION

S CR 2016 0043

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application by JOSHUA WILLIAMS (a pseudonym)

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JUDGES:	MAXWELL ACJ
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9, 15 June 2016
DATE OF JUDGMENT:	24 June 2016
CASE MAY BE CITED AS:	Re Williams (a pseudonym) (No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 364

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COURTS AND JUDGES – Open justice – Application for suppression order – Criminal proceedings – Bail application – Risk of interference with witnesses – Whether publication might exacerbate risk – Public interest in scrutiny of decisions – Need for fair and balanced reporting – Suppression order made – Open Courts Act 2013 ss 10–14, 17–19.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M Williams QC	Mr J Cain, Solicitor for Public Prosecutions
For the Applicant	Mr R de Kretser	Stary Norton Halphen
For the Secretary, Department of Health and Human Services (appeared as amicus curiae)	Ms S Clancy
For The Herald and Weekly Times Pty Ltd	Mr T Moritz

MAXWELL ACJ:

Mr Williams is facing serious criminal charges. He has made an application for bail pending the trial of the charges. For reasons published separately today, I have concluded that the application for bail must be refused.

The application for bail was opposed by the Crown on the ground that, if Mr Williams were released, there was an unacceptable risk that he would ‘interfere with witnesses or otherwise obstruct the course of justice’.[1] Evidence was led which, in the event, has satisfied me that there is indeed an unacceptable level of risk of that occurring, if bail were granted.
[1]Bail Act 1977 s 4(2)(d)(i).

During the course of the hearing of the bail application, I raised with senior counsel for the Crown my concern that any publication of information concerning the bail application might have the consequence of exacerbating the very risk which the Crown had identified. Having sought instructions, however, senior counsel informed me that she would not be making any application for a suppression order.

I concluded that a ‘proceeding suppression order’ should nevertheless be made, on the Court’s own motion, under s 19(1)(a) of the Open Courts Act 2013 (‘the Act’). I considered such an order to be necessary, on an interim basis,

to prevent a real and substantial risk of prejudice to the proper administration of justice cannot be prevented by other reasonably available means.[2]

The order was expressed to be in force until the hearing and determination of the bail application or further order. I then reserved my decision on the bail application.

[2]The Act s 18(1)(a).

Two days later, on 26 May 2016, the Director of Public Prosecutions filed a notice of application for a proceeding suppression order. The application was expressed to rely both on s 18(1)(a) of the Act (‘prevent a real and substantial risk of prejudice to the proper administration of justice’) and on s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 364
Decision Date: 24 June 2016

CaseChat Overview and Summary

The case of Re Williams (a pseudonym) (No 2) involved an application for a suppression order to prevent the publication of information related to criminal proceedings. The application was made in the context of a bail application, where the risk of interference with witnesses was a significant concern. The court had to decide whether the publication of information might exacerbate this risk and whether there was a public interest in scrutinising the decisions made in the bail application.

The primary legal issue the court had to address was whether the publication of information regarding the bail application would interfere with the administration of justice. This involved balancing the need to protect potential witnesses from intimidation or harm against the public's right to be informed about the judicial process. The court also had to consider the public interest in fair and balanced reporting of court proceedings, as well as the need to ensure that the open justice principle was upheld.

In reaching its decision, the court carefully weighed the competing interests at play. It concluded that the publication of specific details from the bail application could indeed increase the risk of witness interference, potentially undermining the integrity of the criminal proceedings. The court found that the public interest in fair and balanced reporting did not outweigh the necessity to protect the administration of justice. Consequently, the court made a suppression order under the Open Courts Act 2013, restricting the publication of certain information to safeguard the judicial process.

The court's suppression order aimed to balance the need for open justice with the protection of potential witnesses. The order was tailored to prevent the publication of details that could jeopardise the safety and impartiality of the proceedings, while still allowing for reasonable scrutiny of the judicial process. The final orders reflected the court's determination to protect the integrity of the criminal proceedings and ensure that the open justice principle was upheld without compromising the safety of potential witnesses.

Orders