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:

1. 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.

1. 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).

1. 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.

1. 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).

1. 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 18(1)(c), which enables an order to be made if it ‘is necessary to protect the safety of any person'.

1. On 9 June 2016, the hearing of the bail application was brought on for mention at the request of the Crown.  The purpose of that hearing was twofold, first to enable additional evidence to be led relating to the bail application and, secondly, to enable the suppression order application to be made.  On that occasion, counsel for the Secretary of the Department of Health and Human Services was given leave to appear in support of the Director’s application for a suppression order. 

1. The submissions advanced both by senior counsel for the Crown and by counsel for the Secretary relied on matters of the kind which I had raised on the previous occasion, based on the evidence heard in the bail application.  In view of the conclusion I have reached — namely, that a proceeding suppression order should be made — it is not possible to elaborate on the nature of the evidence relied on, or of the risks which it is said publication would create. 

The media’s right to be heard

1. Just before the mention hearing concluded, I was informed that my chambers had received an email communication from in-house counsel for The Herald and Weekly Times Pty Ltd (‘HWT’).  Counsel had requested that the company’s interest in the matter be noted and that the hearing be stood over so that HWT could be heard in relation to the suppression order application.  The email pointed out that, upon receiving notice of the Director’s application, counsel had on 27 May 2016 sought further information from the office of Public Prosecutions (‘OPP’) as to when the application would be dealt with and the nature of the matters relied on.  There had, however, been no response from the OPP in the intervening fortnight. 

1. In response to an enquiry from me, senior counsel for the Director said that she had directed those instructing her not to respond to the enquiry from HWT. With respect, that was not an appropriate response. The policy of the Act is clear. Whenever a notice of application for a suppression order is filed, the relevant court or tribunal

must take reasonable steps to ensure that any relevant news media organisation is notified of the application.[3]

More particularly, s 19(2)(e) expressly confers on ‘a news media organisation’ the right to appear and be heard by the court or tribunal on the hearing of the application.

[3]The Act s 11(1).  The Supreme Court has in place an established procedure to ensure that such notice is given, as it was in this case.

1. The enquiry made by counsel for HWT as to when the hearing of the application was to take place was a perfectly proper one, and the necessary information should have been provided without delay.  The refusal of the OPP to provide the information sought resulted in the hearing of the application having to be adjourned to 15 June 2016, in order to give HWT the opportunity to exercise its statutory right to be heard.  That involved additional cost and time for all participants.

The submission for HWT

1. Counsel for HWT had advised the Court in advance that ‘if bail is refused, [HWT] will not seek to be heard in connection with the suppression application’.  At the hearing on 15 June 2016, counsel confirmed that HWT only had an interest in opposing the application ‘in the event that bail was to be granted’. 

1. When counsel submitted that there was ‘a public interest in the bail decision’, I asked why that public interest was said to arise only if the bail application succeeded.  Counsel responded that there had been a ‘number of instances recently where concerns had been raised regarding bail decisions’.  He referred to cases of offenders who had been granted bail and had then committed offences while on bail.  The public interest, counsel submitted, was in ‘scrutinising the operations of the Court and the decisions of the Court’.

1. Critical scrutiny of the operations and decisions of this Court — and of every other court and tribunal — is a matter of the highest public interest.  The proper functioning of our democracy demands nothing less.  But if that scrutiny is to be balanced and fair, and is to give the community an accurate picture of how the justice system is functioning, it cannot be confined to those decisions which — in the view of a particular news media organisation — might give rise to public concern. 

1. The present case illustrates the point.  If it is important for the community to know that bail has been granted in a case where there are concerns about interference with witnesses, it must be equally important for the community to know that bail has been refused precisely because of those concerns.

1. Judges of this Court are making decisions on applications for bail, week in and week out.  These are difficult decisions, involving the always-complex task of assessing risk.  Judges take that responsibility very seriously.

1. The public interest would be much better served, in my view, if the community was made aware of the full range of bail decisions which are made including, in particular, decisions to refuse bail and decisions to grant bail subject to onerous conditions.  Promoting that awareness is a shared responsibility of the Court and the media.[4]  Properly informed in that way, the community would be entitled to have a high degree of confidence in the careful and conscientious decision-making undertaken on their behalf.

   [4]WCB v The Queen (2010) 29 VR 483, 492 [27].

1. Exceptionally, the circumstances of this bail application preclude publication of my reasons for refusing bail.  But that does not affect the point of principle.

Conclusion

1. Section 14(1) of the Act provides as follows:

In making a suppression order, a court or tribunal must be satisfied on the basis of evidence, or sufficient credible information that is satisfactory to the court or tribunal, that the grounds for making the order are established.

1. I am satisfied, on the basis of the evidence and the ‘credible information’ which I heard in the bail application, that the grounds for making the order are established.  As mentioned earlier, that conclusion has the consequence that I am unable to give further detail in these reasons as to the material relied on in support of those grounds.

1. I am satisfied in the circumstances that the suppression order should apply not only to the identity of the applicant for bail and to information disclosed in the course of the hearing of the application, but also to the fact of the application and its outcome.  The nature of the issues involved persuades me that the order should be in force until the conclusion of the criminal proceedings against Mr Williams (including any appeal) or a date five years from today (whichever is the sooner).[5]  What should happen at the conclusion of the criminal proceedings will be a matter for consideration by the Director and the Secretary.

   [5]The Act s 12(3).

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