Reynolds v Panten

[1999] WASCA 89

REYNOLDS -v- PANTEN & ANOR [1999] WASCA 89

Reported Decision:	(1999) 23 WAR 215
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 89
Case No:	SJA:1192/1998	Heard:	15 FEBRUARY & 28 APRIL 1999
Coram:	STEYTLER J	Delivered:	2/07/99
No of pages:	33	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	KEVIN NOEL REYNOLDS BRETT RUSSELL PANTEN WEST AUSTRALIAN NEWSPAPERS LTD
Catchwords:	Appeal Magistrates Single judge appeal under Justices Act 1902 Decision by Magistrate not to express opinion under s 101D of the Act Whether appealable under s 184 of the Act Whether there was a "final determination of a proceeding" for the purposes of the definition of "decision" in s 4 of the Act Whether issue decided by grant of leave to appeal s 101D, s 184 and s 4 of Justices Act 1902 Courts and Judges Administration of justice Open system of justice Freedom to report committal proceedings Circumstances in which court may restrict freedom Words and phrases "decision" "proceeding"
Legislation:	Justices Act 1902, s 4, s 101D, s 184
Case References:	Attorney General v Wentworth (1988) 14 NSWLR 481 Barnett v N2, unreported; SCt of WA; Library No 950461; 30 August 1995 Blake v Norris (1990) 20 NSWLR 300 Brennan v Williams (1951) 53 WALR 30 David Syme & Co Ltd v Hill, unreported; SCt of Victoria; No 4726 of 1995; 10 March 1995 Dowding v Barrett, unreported; SCt of WA; Library No 960352; 5 July 1996 Re Robins Grassby v The Queen (1989) 168 CLR 1 Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Ibbs v Commissioner of Police, unreported; SCt of WA; Library No 930657; 29 November 1993 J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 John Fairfax & Sons Ltd v Police Tribunal of NSW (1985) 5 NSWLR 465 John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131 Kelson v Forward (1995) 60 FCR 39 Kimber v The Press Association [1893] 1 QB 65 Lewis v Levy (1858) El Bl and El 537 Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1 Moularas v Nankervis [1985] VR 369 Pasdale Pty Ltd v Concrete Constructions (1985) 131 ALR 268 R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society [1984] 1 QB 227 R v Craig (1989) 5 WAR 107 R v Gray (1865) 10 Cox C.C. 184 R v Horsham Justices; Ex parte Farquharson [1982] 1 QB 762 R v The Evening News; ex parte Hobbs [1925] 2 KB 158 Re Bromfield; Ex parte WA Newspapers Ltd (1991) 6 WAR 153 Re Vernazza [1960] 1 QB 197 Russell v Russell (1976) 134 CLR 495 TK v Australian Red Cross Society (1989) 1 WAR 335 WA Pines Pty Ltd v Hamilton [1980] WAR 29 A & Ors v Hayden (1984) 156 CLR 532 Ainsworth & Anor v Criminal Justice Commission (1992) 106 ALR 11 Annetts & Anor v McCann & Ors (1990) 170 CLR 596 Ashton v Wall & Anor (1992) EOC 92-447 Attorney-General v Leveller Magazine Ltd & Ors [1979] AC 440 Connell v Lienert, unreported; SCt of WA (White J); Library No 930157; 30 March 1993 Morrison v City of Armadale, unreported; SCt of WA (Murray J); Library No 930664; 2 December 1993 R v H [1996] 2 NZLR 487 R v Socialist Worker Printers and Publishers Ltd & Anor, ex parte Attorney-General [1975] 1 All ER 142 Talbot v Lane (1994) 14 WAR 120 The King v Blakeley & Ors (1950) 82 CLR 54

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : REYNOLDS -v- PANTEN & ANOR [1999] WASCA 89 CORAM : STEYTLER J HEARD : 15 FEBRUARY & 28 APRIL 1999 DELIVERED : 2 JULY 1999 FILE NO/S : SJA 1192 of 1998 BETWEEN : KEVIN NOEL REYNOLDS

Appellant

AND

BRETT RUSSELL PANTEN
Respondent

WEST AUSTRALIAN NEWSPAPERS LTD
Intervener

Catchwords:

Appeal - Magistrates - Single judge appeal under Justices Act 1902 - Decision by Magistrate not to express opinion under s 101D of the Act - Whether appealable under s 184 of the Act - Whether there was a "final determination of a proceeding" for the purposes of the definition of "decision" in s 4 of the Act - Whether issue decided by grant of leave to appeal - s 101D, s 184 and s 4 of Justices Act 1902

Courts and Judges - Administration of justice - Open system of justice - Freedom to report committal proceedings - Circumstances in which court may restrict freedom

Words and phrases - "decision" - "proceeding"

(Page 2)

Legislation:

Justices Act 1902, s 4, s 101D, s 184

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : Mr R L Le Miere QC & Ms C L Tan
Respondent : Ms J H Smith
Intervener : Mr M C Goldblatt

Solicitors:

Appellant : Dwyer Durack
Respondent : State Crown Solicitor
Intervener : Freehill Hollingdale & Page

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

Attorney General v Wentworth (1988) 14 NSWLR 481
Barnett v N2, unreported; SCt of WA; Library No 950461; 30 August 1995
Blake v Norris (1990) 20 NSWLR 300
Brennan v Williams (1951) 53 WALR 30
David Syme & Co Ltd v Hill, unreported; SCt of Victoria; No 4726 of 1995; 10 March 1995
Dowding v Barrett, unreported; SCt of WA; Library No 960352; 5 July 1996
Re Robins
Grassby v The Queen (1989) 168 CLR 1
Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Ibbs v Commissioner of Police, unreported; SCt of WA; Library No 930657; 29 November 1993
J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10
John Fairfax & Sons Ltd v Police Tribunal of NSW (1985) 5 NSWLR 465
John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131
Kelson v Forward (1995) 60 FCR 39
Kimber v The Press Association [1893] 1 QB 65


(Page 3)

Lewis v Levy (1858) El Bl and El 537
Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1
Moularas v Nankervis [1985] VR 369
Pasdale Pty Ltd v Concrete Constructions (1985) 131 ALR 268
R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society [1984] 1 QB 227
R v Craig (1989) 5 WAR 107
R v Gray (1865) 10 Cox C.C. 184
R v Horsham Justices; Ex parte Farquharson [1982] 1 QB 762
R v The Evening News; ex parte Hobbs [1925] 2 KB 158
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
Re Bromfield; Ex parte WA Newspapers Ltd (1991) 6 WAR 153
Re Vernazza [1960] 1 QB 197
Russell v Russell (1976) 134 CLR 495
TK v Australian Red Cross Society (1989) 1 WAR 335
WA Pines Pty Ltd v Hamilton [1980] WAR 29

Case(s) also cited:

A & Ors v Hayden (1984) 156 CLR 532
Ainsworth & Anor v Criminal Justice Commission (1992) 106 ALR 11
Annetts & Anor v McCann & Ors (1990) 170 CLR 596
Ashton v Wall & Anor (1992) EOC 92-447
Attorney-General v Leveller Magazine Ltd & Ors [1979] AC 440
Connell v Lienert, unreported; SCt of WA (White J); Library No 930157; 30 March 1993
Morrison v City of Armadale, unreported; SCt of WA (Murray J); Library No 930664; 2 December 1993
R v H [1996] 2 NZLR 487
R v Socialist Worker Printers and Publishers Ltd & Anor, ex parte Attorney-General [1975] 1 All ER 142
Talbot v Lane (1994) 14 WAR 120
The King v Blakeley & Ors (1950) 82 CLR 54

(Page 4)

1 STEYTLER J: This is an appeal, by leave, brought under s 184 of the Justices Act 1902 ("the Act").

2 The question giving rise to the appeal arose during the course of a preliminary hearing before a Magistrate in the Perth Court of Petty Sessions.

3 The preliminary hearing related to complaints which had been made against John Turner and Ronald Kinney. Mr Turner was, at the time of the matters giving rise to the complaints, the State Manager of a construction company, Fletcher Construction Australia Ltd ("Fletcher Construction") and Mr Kinney was an official employed by the then Builders Labourers Federation ("BLF") of which the appellant, Mr Kevin Reynolds, was the Secretary. Mr Kinney was charged under s 529(b) of the Criminal Code WA ("the Code") with the offence of corruptly receiving from Fletcher Construction $20,000 so as to induce him to show favour to that company in relation to the business of the BLF by ensuring that there would be industrial harmony at Fletcher Construction's building site at the Midland Gate Shopping Centre. Mr Turner was charged under s 530(b) of the Code with having aided in corruptly paying that sum to Mr Kinney. Mr Turner was also charged with 26 counts of fraud and one of attempted fraud.

4 Depositions were served on Messrs Turner and Kinney prior to the commencement of the hearing. These included statements from Mr Salvatore Mangione and Mr Terence Halpin.

5 Mr Mangione, the owner of a company which had been awarded a subcontract by Fletcher Construction for building works at the Midland Gate Shopping Centre, said in his statement that he had been told by Mr Turner to "bump the price ... [under the subcontract] up by $100,000 to cover the costs of [work to be done on] Turner's house and a payment of $40,000 to Kevin Reynolds of the BLF". He said that in September 1993 he was telephoned by a Mr Stuart MacGregor, the construction manager at Fletcher Construction, who told him that he "wanted the first $20,000 of the $40,000 that had been included for payment to Kevin Reynolds". He said that he later handed $20,000 in cash to Mr MacGregor. He said that he thereafter received a telephone call from Mr Turner who told him that "he needed the second $20,000 payment for Kevin Reynolds". He said that he did not have $20,000 in cash to give to Mr Turner right away but that he would give him part of that sum. He later gave Mr Turner $10,000 in cash. About a month later,

(Page 5)

he said, Mr Turner rang him asking for "the rest of the money for ... Reynolds" and that he gave it to Mr Turner in cash.

6 In his statement Mr Mangione told of a meeting, after the police investigation which led to the charges being brought against Messrs Turner and Kinney, at which he had been asked by Mr Reynolds to change his "story" and to say that he "gave the money to MacGregor for a legitimate payment to the Union and not to any particular Union person, or that ... [he] used it to gamble". He said that he declined to do so.

7 Mr Halpin, in his deposition, said that he was told by Mr Turner, shortly before 30 November 1993, that "he needed a $6,000 cash payment as a Christmas present for Kevin Reynolds". He said that he later met with Mr Mangione and told him that Mr Turner "required $6,000 in cash to pay Kevin Reynolds a Christmas bonus" and that Mr Mangione's company should be used "to obtain the money as ... [it was] already involved in providing money to be paid to the Union by the addition of the $100,000 ... in his subcontract". He produced an invoice from Mr Mangione's company dated 30 November 1993 which included a charge of $8,300 for an item shown as "Site Midland Gate Shopping Centre Temporary Footpath as agreed". He said that the sum of $8,300 was in truth a payment made to Mr Mangione's company at the request of Mr Turner and was to be used to pay $6,000 to Kevin Reynolds with the remainder being intended to cover the tax payable by Mr Mangione's company. Mr Halpin's statement also touched upon other payments which, he said, he was told were to be made to Mr Reynolds, including one of $40,000.

8 Mr Reynolds, when he became aware of the contents of these depositions, sought legal advice in respect of them. He said that there was no truth in what had been said against him. He wished to commence proceedings for defamation against the originators of the allegations. His solicitor arranged for counsel to appear on his behalf at the preliminary hearing in order to apply for what his then counsel referred to as a "suppression order", in effect, an invitation to the Magistrate to form the opinion referred to in s 101D of the Act. That section, which deals with restrictions on publication of evidence in the course of a preliminary hearing, reads as follows:

"101D. Where there is a preliminary hearing the Justices may at any time state that in their opinion in the interests of justice it is undesirable that any report of or relating to the evidence or any of the evidence given or tendered at the proceedings before

(Page 6)

them should be published and thereafter a person who prints, publishes, exhibits, sells, circulates, distributes, or in any other manner makes public such report, or any part thereof, or attempts to do so, commits a contempt of the Supreme Court and is punishable accordingly by that Court."

9 Counsel for Mr Reynolds told the learned Magistrate that he had been informed by the prosecutor that the Crown did not propose to lead hearsay evidence of the kind complained of by Mr Reynolds. However, Mr Reynolds' counsel said, he had been told by counsel for Mr Kinney that the latter would be cross-examining on that material, not for the purpose of proving its truth, but rather to attack the credibility of the makers of the statement.

10 Counsel for Mr Reynolds made it plain that he consequently applied for a "suppression order" in respect of "those parts" of the evidence which, he said, "[would] not be put before ... [the] court as truth of its contents ... but merely those parts of the evidence that ... [were] ... hearsay on hearsay which allege corruption in the most virulent terms against Kevin Reynolds and the Union". He stressed that Mr Reynolds was not charged with anything and that the evidence in question was evidence "that the prosecutorial authorities place[d] no credence in". He submitted that not only would the evidence "blacken" Mr Reynold's name but that Mr Reynolds and the Union had instructed their lawyers to take defamation proceedings against those who had made the allegations. He submitted that publication of the allegations "would render the taking of civil action for defamation against these people completely useless ... because the allegations could then be printed under the protection of privilege ... ".

11 Counsel for Mr Reynolds went on to submit that the material was "said to be completely untrue".

12 The Crown made no submission in respect of the matters raised on behalf of Mr Reynolds but said that, because Mr Mangione and Mr Halpin were to be cross-examined on the hearsay material, the Crown would "certainly now be leading that evidence from those witnesses" as proof of the fact of what was said.

13 The learned Magistrate then heard submissions from counsel for West Australian Newspapers Limited, the publisher of The West Australian newspaper, which had intervened in the proceedings in order to

(Page 7)

oppose the imposition of any restriction on publication of the evidence led in the course of the preliminary hearing.

14 The learned Magistrate then gave ex tempore reasons for declining to accede to the request which had been made on Mr Reynolds' behalf. He said that there was a principle that was "fundamental to our society and method of government" to the effect that "except in extraordinary circumstances or exceptional circumstances the courts of the land are open to the public" and that this principle arose out of the belief that exposure to public scrutiny was "the surest safeguard against any risk of the courts abusing their powers". After making some additional comments he said:

"This Court is not prepared to sacrifice what is a fundamental principle that our courts are to be open to the public because it may, or even will, render impractical a proposed defamation case. If being unfair to a defendant is not sufficient of itself for a suppression order ... in respect of a defendant, is someone else who is not a defendant in a stronger position than a person who is a defendant? In this case, I think not. So ... [the appellant's] application for suppression of the evidence relating to ... [him] is not allowed."

15 On the same day Mr Reynolds sought and obtained leave to appeal from what was described, in the order giving leave, as "the decision ... to dismiss the application ... for an order under ... " s 101D of the Act. An order was also made that pending the disposition of the appeal or until further order "no report of or relating to evidence given in the committal proceedings against ... [Mr] Turner and ... [Mr] Kenny to the effect that moneys, by way of secret commission or otherwise corruptly, were to be paid, sought or received by or at the request of the appellant" was to be published. The application was made ex parte and without hearing the respondent or counsel for West Australian Newspapers Ltd.

16 The preliminary hearing thereafter proceeded before the learned Magistrate.

17 I should, for the sake of completion, mention that when Mr MacGregor came to give evidence Mr Mangione's statement was put to him. He was asked about Mr Mangione's allegation that he, Mr MacGregor, had told Mr Mangione that a payment of $40,000 was to be made to Mr Reynolds. He denied that he had said that and said that Mr Mangione had presumably erred as a consequence of "an association

(Page 8)

of ideas" and that there had been an "association [of] Mr Kinney with the Union with Mr Reynolds". He said that all of his dealings were with Mr Kinney. He said that he may have referred "to the Unions" but that he "certainly wouldn't refer to Mr Reynolds". He denied that he said, at any time, that a payment was to be made "to or for" Mr Reynolds.

18 Prior to the commencement of the hearing of the appeal the appellant amended his grounds of appeal. The amended grounds of appeal read as follows:

"1. The learned Magistrate failed to consider properly or at all the interests of justice within the meaning of Section 101D of the Justices Act 1902.

2. In refusing the application the Learned Magistrate erred in law in the exercise of his discretion in that he:


(a) failed to give weight or sufficient weight to relevant considerations, including the following matters:

(i) the damage to Mr Reynolds' reputation should the evidence be published;

(ii) the fact that the identity of Mr Reynolds had no forensic relevance in the proceedings;

(iii) the fact that the allegations were made not to prove their truth but to prove that the maker of the allegations was a liar;

(iv) the fact that Mr Reynolds would not have the opportunity to refute the allegations in the proceedings;

(v) the fact that if the allegations were published as part of a fair and accurate report of the proceedings Mr Reynolds would have no recourse against the media for the damage done to his reputation;

(vi) the principle that the court should not let itself become an instrument of

(Page 9)

misinformation or cause prejudice to those caught up in its process;

(vii) the fact that the prejudice to the open administration of justice was minimal in that the proceedings were still in open court and able to be scrutinised by the public, and that what was sought to be suppressed was information not relevant to the proceedings.

3. The Learned Magistrate applied the wrong test in holding that exceptional circumstances were required before the order sought under Section 101D could be made.

4. The Learned Magistrate applied the wrong test in holding that the defendant in the committal proceedings was in a stronger position than the applicant to make an application for a suppression order in those committal proceedings."

19 On the hearing of the appeal counsel for the respondent and for West Australian Newspapers Ltd raised a preliminary objection as to its competence. This was to the effect that the appeal was misconceived because, by s 184 of the Act, an appeal lies "from a decision of Justices" and the Magistrate's refusal to accede to the invitation to express the opinion referred to in s 101D was not a "decision" for the purposes of that section.

20 Counsel for the appellant disputed that this was so and submitted, also, that the question whether the learned Magistrate had made a decision was one which had already been decided in these proceedings at the time at which leave to appeal was granted. Because this last submission was raised for the first time during the hearing of the appeal I gave to each of the parties liberty to make additional written submissions in respect of it. Those submissions have since been filed.

21 I will deal, in turn, with each of the issues to which I have referred.

The effect of the grant of leave to appeal

22 I do not accept that the grant of leave to appeal resulted in any final determination of the question whether there was, for the purposes of s 184 of the Act, a "decision" from which an appeal might lie.

(Page 10)

23 Section 185 of the Act provides that applications for leave to appeal "shall be made ex parte unless the Judge orders that the application be served on any person" and, by s 187, the Judge hearing the application is obliged to grant leave to appeal "unless he considers that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case".

24 It seems to me, in these circumstances, that the effect of the grant of leave, insofar as it bears upon the question whether there was a "decision" from which to appeal, is not intended to foreclose further argument on that question at the time of the hearing of the appeal. Rather, the Judge hearing the application, given its ex parte nature, is required to do no more, and does no more, than decide that there is, in that and other respects, an arguable case to be put to the appellate court. It could not, in my opinion, have been intended by the legislature that a decision could be made on that issue, effectively foreclosing further argument in respect of it other than by way of further appeal, in the absence of any submissions from the other parties interested.

25 I should add that this conclusion is consistent with the decision of this Court in Dowding v Barrett, unreported; SCt of WA; Library No 960352; 5 July 1996. In that case Scott J concluded that appeals against orders made by a Magistrate in the Court of Petty Sessions were incompetent because the orders appealed from were not "decisions" within the meaning of that word as defined in the Act notwithstanding that leave to appeal had earlier been given by another Judge.

Was there a "decision"?

26 That brings me, next, to the question whether there was a decision from which an appeal lies under s 184 of the Act. That section reads as follows:

"(1) Subject to any other Act -

(a) an appeal lies to the Court, by leave as provided in this Part, from a decision of justices; but

(b) otherwise there is no appeal from such a decision.


(2) A decision that is declared by an Act to be final may not be the subject of an appeal under this Part.

(Page 11)

(3) A decision by justices to commit a defendant for trial may not be the subject of an appeal under this Part."

27 By s 4 of the Act in the interpretation of the Act, unless the context otherwise requires, "decision" means:

"(a) a conviction or a finding whether made following a plea of guilty or an admission of the truth of any matter or following trial;

[(b) deleted]

(c) the dismissal of a complaint;

(d) any other final determination of a proceeding, including a determination that justices had no jurisdiction to deal with a proceeding; and

(e) a sentence imposed or order made consequent on any such conviction, finding, dismissal or determination,

but does not include any decision relating to bail under the Bail Act 1982."

28 It was common cause between the parties that what was done by the learned Magistrate could not be brought within the provisions of par (a), par (c) or par (e) of the definition. Consequently, the question for decision is whether what was done by his Worship amounted to the "final determination of a proceeding" referred to in par (d). Counsel for the appellant submitted that it did whereas counsel for the respondents submitted that it did not.

29 There is no definition, in the Act, of what is "a proceeding". However counsel for the appellant submitted that an application for the expression, by a Magistrate, of the opinion referred to in s 101D of the Act is a "proceeding" and that the decision whether or not to express that opinion finally determines that proceeding.

30 I was referred, in this respect, to a number of cases decided in this State and elsewhere. However, before discussing those cases (particularly those decided in this State) it is, I think, important to place them in context by reviewing the legislative history of the relevant Western Australian provisions.

(Page 12)

31 During the 19th Century there were various statutes which created appeals as of right in respect of the offences thereby created. The Act, when first enacted in 1902, consolidated these various appeal provisions, giving rights of appeal to any person who was summarily convicted or had an order made against him by Justices, and:

(a) was imprisoned without the option of a fine; or

(b) was fined more than ten pounds; and in either case

(c) did not plead guilty or admit the truth of the complaint.

32 Section 197 of the Act then also provided that any party to a proceeding before Justices who wanted to appeal from their decision on the ground that there was an error of law or that they had acted in excess of jurisdiction might do so by way of a case stated for consideration by the Supreme Court.

33 Then, in 1919, appeals by way of special case were abolished and replaced with appeals by way of an order to review. These provisions appear to have had the purpose of amalgamating appeals by way of case stated and the use of prerogative writs although the use of prerogative writs was not then done away with. At the same time the right of appeal was limited by deleting the provision allowing for an appeal in the case of a fine of more than ten pounds.

34 In 1948 s 197 of the Act was amended so as to include within the scope of that section cases in which it was shown that "the penalty or sentence imposed was (according as the person aggrieved may allege) inadequate or excessive in the circumstances of the case".

35 In 1964 s 197 was again amended so as to confer a right of appeal upon a person who was convicted after pleading guilty, or against whom an order was made after admitting the truth of the complaint, if that person could show, on oath, that there was sufficient reason why the decision of the Justices should be reviewed.

36 Then, in 1989, the Act was amended so as to confer a right of appeal only by leave. That was done by way of the enactment of s 184(1) and (2). Those sections have not since been amended and remain in the form in which I have quoted them above. Section 184(3) was enacted by way of amendment in 1996.

(Page 13)

37 The word "decision" was defined as follows when the Act came into force in 1902:

" 'Decision' includes a committal for trial and an admission to bail as well as a conviction, order, order of dismissal, or other determination."

38 The word "order" was then defined as meaning an order made upon a complaint or a breach of duty.

39 The definition of a "decision" remained unchanged until 1989 when the original definition was deleted and replaced with the following definition:

" 'Decision' means -

(a) a conviction or a finding whether made following a plea of guilty or an admission of the truth of any matter or following trial;

(b) a committal for trial;

(c) the dismissal of a complaint;

(d) any other final determination of a proceeding, including a determination that justices had no jurisdiction to deal with a proceeding; and

(e) a penalty imposed or order made consequent on any such conviction, finding, committal, dismissal or determination,

but does not include any decision relating to bail under the Bail Act 1982;"

40 The amended definition remained unchanged until 1996 when the definition took its current form, set out earlier in these reasons.

41 I will, against this background, consider the cases to which I was referred.

42 The first of them is that of Brennan v Williams (1951) 53 WALR 30.

43 At that time the definition of the word "decision" still took its original form. Dwyer CJ, with whom Walker and Virtue JJ were in

(Page 14)

agreement, said (at 31) that the wording of the definition did not extend "to what is a ruling given by a Magistrate on an incidental question whether certain pleas are good or bad". He said that the Magistrate should proceed to a decision on the "whole case" and that it was that decision which was subject to review under the Act.

44 Then, in Penniel v Driffill, published as a note to the decision of the Western Australian Full Court in WA Pines Pty Ltd v Hamilton [1980] WAR 29, Virtue ACJ (with whom Wickham and Jones JJ were in agreement), after considering the definitions of "decision" and "order" as they then stood in s 4 of the Act (the definition of "decision" then remained unchanged and the word "order" was then defined as meaning "an order made upon a complaint of any matter (not being a simple offence)", said that the definition of "order" was "perhaps significant ... in that in confining its connotation to orders made on complaint, it ... [indicated] that, in the definition of the term 'decision', 'order' is confined to orders determinative of the rights and liabilities of the parties to the proceedings, and this may have some bearing on the proper meaning of the earlier definition". His Honour went on to say (at 31):

"Now, if unpressed by authority, I would have had little doubt that the meaning of the word 'decision' should ... [subject to certain express statutory inclusions] be in fact confined to such decisions as I have previously mentioned. In that regard I consider that the language of the definition supports the view canvassed by ... [counsel] for the respondent that, notwithstanding the use of the word 'includes', the definition is intended to be exhaustive of the meaning of the term, the word 'includes' being introduced to add committals for trial and applications for admission to bail [both of those matters having then been included within the definition] which unlike the other expressions used would not naturally come within the meaning of the expression 'decision' in its ordinary meaning. Viewing then these other expressions and having regard to the meaning of the word 'order' I would have thought this a clear case for the application of the ejusdem generis rule, with the result that rulings and determinations by the court during the course of the hearing which in no way dispose of the matter of complaint should not be included."

45 Virtue ACJ then referred (ibid) with approval, inter alia, to Brennan v Williams, supra, before saying (at 32) that:

(Page 15)

"The cases accordingly, in my view, do not support a conclusion that the language of our Act which in its natural meaning is apt (except in the special cases of committals for trial and admission to bail) to limit the jurisdiction to grant orders nisi to review to decisions determinative of the final rights and liabilities of the parties, should be so far liberally construed as to include interlocutory orders within its ambit."

46 In WA Pines Pty Ltd v Hamilton, supra, at 30, Burt CJ, with whom Wallace and Brinsden JJ concurred, considered that the decision of the Full Court in Penniel v Driffill was correct and should be followed.

47 I was next referred to the case of Ibbs v Commissioner of Police, unreported; SCt of WA; Library No 930657; 29 November 1993. In that case Murray J considered that the word "proceeding", where it appears in subpar (d) of the definition of "decision" in the Act (as it had stood since 1989), is "clearly a word of wide import". His Honour saw no reason to suppose that it might not include "any procedure before Justices or a Magistrate which may have a 'final determination' ".

48 I was also referred to the case of Barnett v N2, unreported; SCt of WA; Library No 950461; 30 August 1995. There Murray J, after quoting from the definition of "decision" in s 4 of the Act (which then stood as amended in 1989), said that it was clear from the definition that a decision within the meaning of the Act would be "something in the nature of a final determination made in the proceeding before the Court".

49 Finally, so far as the Western Australian cases are concerned, I was referred to Dowding v Barrett, supra. In that case Scott J remarked, at 16, that the common thread running through the judgments of this Court as regards the meaning of the word "decision" was that "an appeal does not lie at an interlocutory stage of proceedings ... but only from a final judgment of the Court". That, his Honour said, was "an important principle because it avoids a multiplicity of appeals against interlocutory or procedural steps in the Court of Petty Sessions".

50 The other cases to which I was referred, all of which turned on the particular wording of other legislation, do not seem to me to be of much assistance.

51 The first of these 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

(Page 16)

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".

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. His Honour there mentioned that the Shorter Oxford English Dictionary on Historical Principles, 3rd ed (1933) at 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 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 1002 - 1003) that 'proceedings' is sometimes used as

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including, or meanings, 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 (1985) 131 ALR 268. 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.

59 The phrase "final determination of a proceeding", in its context in the Act, is not in my opinion, apt to include a ruling of the kind made by the learned Magistrate in this case. While it might, in this case, be said that the learned Magistrate made a decision, as that word is used in ordinary parlance, not to form the opinion which he was invited to form, that decision was not one which finally determined any proceeding. There was, in my opinion, no "proceeding". Section 101D does not require that

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any application be made to the learned Magistrate as a pre-condition to the exercise of his or her discretion to form the opinion referred to. That can be done at any time and of the Magistrate's own motion (cfRe Bromfield; Ex parte WA Newspapers Ltd (1991) 6 WAR 153 at 175 - 176).

60 It is, moreover, important to bear in mind that, once the Magistrate has formed the requisite opinion, no order is made in order to give effect to it (and the position under s 41 and s 75(1) of the Justices Act, relied upon by counsel for the appellant is, in this respect, distinguishable: under each of those sections the Magistrate makes an order or imposes a penalty, in the case of s 41 where a person has insulted or interrupted a justice and, in the case of s 75(1), where a witness who has been summoned fails, without just excuse, to appear). Rather, the section provides that it is a contempt of the Supreme Court to publish the evidence which is the subject of the expression of opinion (cf Re Bromfield, supra, at 169, per Malcolm CJ and 191, per Nicholson J).

61 There having been no proceeding which was finally determined by the learned Magistrate for the purposes of par (d) of the definition and there being no contention that what was done by the learned Magistrate otherwise fell within the definition of the word "decision" it follows, in my opinion, that the appeal should be found to be incompetent.

The issues raised by the grounds of appeal

62 While the conclusion at which I have arrived is enough to dispose of the appeal I should, perhaps, comment on the issues raised by the grounds of appeal as these were fully argued before me.

63 Foremost amongst these was the contention advanced by senior counsel for the appellant that the learned Magistrate interpreted s 101D of the Act in accordance with what was said to be the court's implied or inherent power upon the basis that the power is not exercisable to prevent "unfairness" to a person by publicity concerning the proceedings and that, in so doing, he erred in law and misdirected himself. It was submitted that his task, under s 101D, was that of deciding whether "in the interests of justice it is undesirable that" evidence relating to the appellant should be published and that, in arriving at this decision, the consideration of "unfairness" through adverse publicity was important. Allied to this was the further submission that the learned Magistrate failed, in any event, properly to apply what was referred to as the "open justice principle of the Court's implied power" in that he had undue regard to the public interest

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in reporting committal proceedings and failed to have any, or any proper, regard to the competing public interest in protecting the reputation of an individual against baseless allegations.

64 I should mention, in passing, in this regard that although it has been accepted that, notwithstanding the existence of s 101D of the Act, there remains an implied power to make orders suppressing publication of evidence led in the course of committal proceedings (see Re Bromfield, supra, at 167, per Malcolm CJ, 181, per Rowland J and 191 - 192, per Nicholson J) it is, I think, inappropriate to speak of an inherent power to do so, at least in the sense in which that expression is used in the context of a superior court (see Grassby v The Queen (1989) 168 CLR 1 at 16 - 17 and John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131 at 147).

65 Counsel for the appellant also contended that the learned Magistrate failed to give weight or sufficient weight to a range of relevant considerations. He submitted, in this respect, that no sufficient attention was given to the damage which would occur to the appellant's reputation. This was, he said, especially so in circumstances in which the appellant had not himself been charged, in which there was no admissible evidence to prove the truth of the allegations against him and in which there was, indeed, evidence which suggested that those allegations were not true. He also pointed to the fact that the appellant would not, at the trial, have any opportunity to refute the allegations against him. He also submitted that the prejudice to the open administration of justice, in circumstances such as these, was minimal.

66 Counsel for the appellant next submitted that, in saying that it was a fundamental principle that, except in extraordinary or exceptional circumstances, the courts should be open to the public the learned Magistrate misdirected himself in three ways. The first was that he failed to distinguish between an order excluding the public from the hearing and one restricting publication of particular evidence. The second was that he substituted the principle he applied for the statutory requirement that he determine whether in the interests of justice it is undesirable that the evidence not be published. The third was that he interpreted his implied power too narrowly in considering that unfairness was insufficient to constitute extraordinary or exceptional circumstances and in failing to have regard to any consideration other than the public interest in the reporting of a preliminary hearing.

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67 The final contention advanced on behalf of the appellant was that s 101D of the Act required the Magistrate to have regard to the interests of individuals other than a defendant in proceedings before him, more particularly in circumstances in which that person is unable to cross-examine or call witnesses in order to prove the falsity of what was said against him. It was submitted that the Magistrate compared the position of the appellant with that of a defendant in proceedings and thereby misdirected himself.

68 While it is, as I have said, unnecessary for me to decide whether or not the learned Magistrate erred in any of the respects contended for, it seems to me, with respect, that he was correct in the conclusion at which he ultimately arrived.

69 There can be no disputing that s 101D must, as the learned Magistrate said, be construed in the light of the fundamental principle that justice should be open. So much has recently been said by the Full Court of this Court in Re Robins; ex parte West Australian Newspapers Ltd [1999] WASCA 16 at [5 - 9]. Ipp J, with whom the other members of the court were in agreement, there said (in the context of a consideration of the proper construction of s 101D) that:

"The courts have, at the highest level, stressed the fundamental importance of openness in the administration of justice. I shall refer only to a few of the authorities. In Russell v Russell (1976) 134 CLR 495 (at 520) Gibbs J said:

'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 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.'

In David Syme and Co v General Motors Holden Ltd (1984) 2 NSWLR 294 Street CJ observed (at 300):

' ... It is a deeply rooted principle that justice must not be administered behind closed doors - court proceedings must be exposed in their entirety to the cathartic glare of

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publicity. There are limited exceptions to the observance of this principle but these are well defined and sparingly allowed.'

In this Court Malcolm CJ said (at 164) in Re Bromfield; ex parte West Australian Newspapers Ltd (1991) 6 WAR 153:

'The administration of justice is a matter of public interest. Not all members of the public are able to attend court proceedings. The public nature of judicial proceedings is facilitated by the publication of fair and accurate reports of proceedings in our courts. ... It is in the interests of the administration of justice and in the public interest that the public be fairly and accurately informed of what takes place in our courts. This is also an aspect of the right of free speech.'

And (at 165):

'It is a fundamental principle of the administration of justice that it be carried out in public.'

Rowland J (at 179) expressed similar views.

The reasons for this principle are not hard to understand. They lie at the heart of our system of justice and our democratic society. The cases make this crystal clear. I shall again refer only to a few authorities.

Ackner LJ in R v Horsham Justices; ex parte Farquharson [1982] 1 QB 762 at (798) observed succinctly that '[t]the freedom to report trials is one of the essential freedoms'. In David Syme and Co v General Motors Holden Ltd Street CJ (at 300) pointed out:


'It is only thus that the right of representation and of due hearing of all legitimate submissions can be seen to have been accorded to parties subjected to the judicial process. Moreover publicity of proceedings is one of the great bastions against the exercise of arbitrary power as well as a re-assurance that justice is administered fairly and impartially.'

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In John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 Kirby P said (at 143):

'A significant reason for adhering to the stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interest must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.'

In John Fairfax & Sons Ltd v Police Tribunal of NSW & Anor (1985) 5 NSWLR 465 McHugh JA said (at 481) that if information were to be suppressed, the court's proceedings:

'would inevitably become the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making. The publication of fair and accurate reports of court proceedings is therefore vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice.'

It is also to be borne in mind that 'publicity may attract the attention of persons with material information who are unaware of the proceeding': J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 (at 45) per Fitzgerald P and Lee J."

70 There are other authorities to like effect. In R v Horsham Justices; Ex parte Farquharson [1982] 1 QB 762 (mentioned by Ipp J in Re Robins, supra) Lord Denning MR (at 793) described the principle of open justice and that of freedom of the press as "two of our most fundamental principles". He said that it was "of the first importance" that any newspaper should be entitled to publish a fair and accurate report of proceedings without fear of a libel action or proceedings for a contempt of court.

71 In R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society [1984] 1 QB 227 at 235 Sir John Donaldson MR said:

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"It is fundamental to British justice as we know it, and as our forebears have known it, that the Queen's courts are open to all. And when I say that they are open to all, I do not limit this to those who have business in the courts. The Judges administer justice in the Queen's name on behalf of the whole community. No one is more entitled than a member of the general public to see for himself that justice is done."

72 In Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 Kirby P said:

"Many cases report the scrutiny by courts of statutory provisions designed to derogate from the open administration of justice. Running through these decisions is a common theme. It is that, by our tradition, the open administration of justice is the rule. Statutory derogation from openness is the exception. In defence of the rule, such statutes will usually be strictly and narrowly construed. Unless the derogation is specifically provided for courts are loath to expand the field of secret justice ... ."

73 After referring to various legislative provisions which had provided for closed courts but had since been modified or proposed for reform his Honour went on to say (ibid):

"These legislative developments and changes of court practice reflect an increased resolve on the part of the Parliament and the courts to defend the principle of the open administration of justice against the many, doubtless well-meaning, efforts to erode the principle because of the suggested operation of competing claims of privacy, confidentiality, security, delicacy or administrative efficiency."

74 While much was sought, in the course of argument, to be made of the distinction between closure of the court entirely and a prohibition on publication of the proceedings it must, I think, be recognised that a court is not truly open unless its proceedings can be reported. The public scrutiny of the judicial process is intrinsic to the proper administration of justice. The public is entitled to know what goes on in the courts. Without that knowledge it cannot exercise its right, essential to the whole notion of accountability of the courts, to criticise what takes place there. While I accept that closure of the court is a more serious step than restricting publication (cfMoularas v Nankervis [1985] VR 369 at 378,

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per Ormiston J) it must, I think, also be accepted that without publication there is no real scope for meaningful comment, criticism or discussion on the matters which have been subjected to scrutiny. (See, in this respect, Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 316, per Lord Scarman.)

75 In Raybos Australia Pty Ltd v Jones, supra, at 61, Samuels JA said, of an inquiry whether publication would defeat the ends of justice, that:

"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 courts' proceedings ... If it is of particular importance that criminal proceedings should be heard in public and fully reported, the reason is not, I think, because they, unlike, or to a greater extent than, civil proceedings involve the public interest in the proper administration of justice. All proceedings before all courts (properly so called) involve that public interest; and it is that public interest whose requirements inform the whole of the topic in debate. One cannot put the private interests of citizens in the balance against this or any other public (that is, the whole community's) interest. The emphatic desirability of public scrutiny of criminal trials is due essentially to the need to protect the accused, whose liberty is, or often is, at stake, against prejudice or unfairness."

76 In the same case Priestly JA (at 63) expressed the opinion that cases in which orders should be made that evidence and happenings in court should not be publicised "would be of the utmost rarity". Similar views have been expressed by Malcolm CJ, in this Court, in TK v Australian Red Cross Society (1989) 1 WAR 335 at 337 and Re Bromfield, supra, at 165.

77 In J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 12 Fitzgerald P and Lee J said that although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, "paramount public interests in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings be open to the public and able to be reported and discussed publicly".

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78 Acceptance of this principle does not have the consequence that individual rights, whether to the protection of reputation or otherwise, might, at will, be exposed to unjustifiable attacks in circumstances in which publication of those attacks will ordinarily be protected by privilege (cfR v Horsham Justices, supra, at 797). Great harm can, as was mentioned by Kirby P in Raybos Australia Pty Ltd v Jones, supra, at 59 - 60, be done to individuals by the widespread circulation of protected reports of their involvement in criminal or quasi criminal proceedings in circumstances in which this damage might be quite unjustifiable. A similar comment was made by Mahoney JA in John Fairfax Group v Local Court of NSW, supra, at 163 - 164, where his Honour said:

" ... [I]t is important to remember - because, in what is said about the open conduct of the courts, it appears sometimes to be forgotten - that the open conduct of the courts can cause great pain and loss to those touched by what is done and what is publicised."

79 While the courts will always do what they can, within the limits of their function, to protect private rights and interests (cfJohn Fairfax Group v Local Court of NSW, supra, ibid and Kelson v Forward (1995) 60 FCR 39 at 43), it will be a rare case in which it can safely be said that a private interest, or even some competing public interest, is such as to override the public interest in knowing what has taken place in a court. As was said by Kirby P in John Fairfax Group v Local Court of NSW, supra, at 142 - 143:

"It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... ."

80 Moreover, as was pointed out by Mahoney JA, in the same case (at 164):

"There is no simple rule which will achieve the proper accommodation of the control of judicial power and accountability for it on the one hand and the avoidance of personal and public harm on the other. The expedience of granting a discretion to every judge to balance the principle of open courts against the harm in the individual case has not been

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accepted. And the courts have, I think, been conscious that in this area, the acceptance of restrictions for good reasons is apt to lead to the imposition of them for bad."

81 In J v L & A Services Pty Ltd, supra, at 45 Fitzgerald P and Lee J said:

" ... [I]nformation may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R v Tait [1979] 46 FLR 386. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public. Further, public scrutiny is a strong disincentive to false allegations and a powerful incentive to honest evidence, and publicity may attract the attention of persons with material information who are unaware of the proceeding. Again, as was pointed out by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales, if information is suppressed 'proceedings would inevitably become the subject of rumours, misunderstandings, exaggerations and falsehoods ... ': cf Raybos Australia Pty Ltd v Jones at 59 per Kirby P, citing McPherson J in Ex parte The Queensland Law Society Incorporated [1984] 1 Qd R 166, 171. A particularly unsatisfactory manifestation of this difficulty occurs when uncertainty as to the particular person concerned leads to speculation concerning other members of a relevant group. Finally, it is important to remember that what appears to be a more liberal approach involving the exercise of a discretionary power in the interests of an individual involves an erosion of fundamental rights and freedoms of the general public. The occasional misuse or abuse of these rights and freedoms or other disadvantages associated with public information and discussion, which is sometimes misinformed, together with any resultant harm are part of the cost of living in a free, democratic society. It is common for sensitive issues to be litigated and for information which is extremely personal or confidential to be

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disclosed. It is of obvious concern that such a paramount principle as the requirement of open justice should not be whittled away on a case by case basis according to individual judges' subjective views of the merits or demerits of the claims to privacy of individual litigants. It is also of concern that there should not be an expenditure of time, resources and costs on arguments that do not bear directly on the merits of disputes."

82 It is, as I have said, against this background that the operation of s 101D of the Act (and the exercise of the implied power to suppress publication) must be considered.

83 One case in which the public interest in open justice may be overridden, in the context of committal proceedings, is that in which the competing private, and public, interest in ensuring that an individual is given a fair trial will be threatened by publication of evidence led in those proceedings. Thus in R v Craig (1989) 5 WAR 107 Malcolm CJ (at 121) said that the fact that the opinion referred to in s 101D must be formed "in the interests of justice" required the court to balance the public interest in the freedom of the press and the public nature of court proceedings against the public interest in the due administration of justice and the right of an accused person to a fair trial. (See also Re Bromfield, supra, at 173.)

84 There is, in the circumstances of this case, no question of any infringement of the right of an accused person to a fair trial. There was no contention, from any party, that publication of the matters sought to be suppressed would adversely affect the fairness of any pending trial. Nor could there sensibly have been any such contention in the circumstances. Rather, what was submitted was, as will be apparent from what I have said above, that the interests of justice require the protection of the appellant against the dissemination of damaging and seemingly unfounded allegations in circumstances in which there is no overriding public interest requiring publication.

85 There is a real question whether the protection of the reputation of a witness against unfounded allegations is something which is comprehended by the expression "interests of justice" in s 101D in circumstances in which there is no suggestion that the adverse impact on those private interests will have any impact upon the wider administration of justice. It is important to bear in mind in this respect that, as I have said, publication is not forbidden by any order made pursuant to the provisions of the section but merely as a consequence of the expression of

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the opinion therein provided for, no doubt upon the assumption that publication will interfere with the administration of justice (cf Re Bromfield, supra, at 169).

86 It is also worth mentioning that in Moularas v Nankervis, supra, Ormiston J, in considering s 43(1) of the Magistrates (Summary Proceedings) Act 1975 (Vic) (which gives to a justice the power to limit access to the court during, inter alia, a preliminary examination "if it appears to him desirable to do so in the interests of justice or of public morality or of the reputation of a victim of an alleged sexual assault or offence of extortion") said (at 377 - 378):

"The three limbs for exclusion contained in s 43(1), namely the interests of justice, public morality, and the reputation of victims of two classes of offence, would appear to cover most, if not all, cases justifying the closing of the court for these proceedings. In particular the 'interests of justice' cover a wide range of circumstances, which, however must all be related to the proper administration of justice, including the organisation of justices and magistrates' courts and their hearings, and the interests of the informant and the accused to the extent necessary to ensure that all parties obtain a just, efficient and expeditious hearing."

87 There is, as I have said, no contention here that publication would prevent or seriously impede the fair resolution of any court proceedings according to law (cf Raybos Australia Pty Ltd v Jones, supra, at 61 per Samuels JA). Nor is this a case in which private and public interests coincide as, for example, in circumstances in which open proceedings would vindicate the activities of a blackmailer or frighten off blackmail victims or informants or endanger national security or the like (as to which see John Fairfax Group v Local Court of NSW, supra, at 141).

88 However, even if "the interests of justice" referred to in s 101D do comprehend purely private interests of the kind at issue in this case, I am not persuaded that this is a case in which those interests are such as should result in the suppression of the evidence to which I have referred. While I have considerable sympathy for the appellant, who faces the prospect of embarrassment and distress from the publication of allegations of a most serious kind made against him in circumstances in which those allegations are seemingly without substance and in which he is unlikely to have the opportunity of vindicating himself against them in the pending proceedings, I am unable to accept that a private interest of this kind,

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important though it plainly is, should override the public interest in open justice.

89 There is no doubt that there is, as his Worship said, a heavy evidentiary onus on a party seeking any restriction to publication. Only in exceptional and compelling circumstances will an application of that kind be acceded to. (See Re Robins, supra, par 10 - 16; TK v Australian Red Cross Society, supra, at 336, R v Craig, supra, at 125; Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1 at 20, R v Horsham Justices; ex parte Farquharson, supra, at 793 - 794 and John Fairfax & Sons Ltd v Police Tribunal of NSW (1985) 5 NSWLR 465 at 476).

90 The consideration of fairness raised on behalf of the appellant (of which the learned Magistrate was plainly conscious) was not, in his Worship's opinion, sufficient to discharge that evidentiary onus. There is, as I have said, here no question of publication preventing a fair trial or of otherwise preventing or impeding the resolution of court proceedings according to law. There is also no question of destroying the attainment of justice in any particular case or of discouraging its attainment in cases generally. Nor is this a case in which the process has been abused so as to enable unfounded allegations to be made under the protection of privilege. Moreover if the allegations here under consideration are to be published there is reason to hope that they will be fairly published by publishing also the fact that the person from whom they were said to have originated has denied that they were made by him and that they are true and by publishing the fact that the appellant denies that there is any truth in them.

91 Counsel for the appellant contended that the need for publication is less, in the case of committal proceedings, than it is in other proceedings. He referred in this respect to what was said by Beach J in David Syme & Co Ltd v Hill, unreported; SCt of Victoria; No 4726 of 1995; 10 March 1995 at 6 as follows:

"One final point I wish to make is that this is a committal, not a trial. It is an administrative step, albeit an important one, in the criminal process. The need of the public to know what is happening at a committal is of far less significance than its need to know what is happening at a trial. Indeed, I consider it is strongly arguable that the less publicity attaching to a committal the better. I say that for the reason that often at a committal only one side of the coin is fully presented to the magistrate, namely the case for the Crown. In such a situation the publicity

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attaching to the committal tends to over-emphasise the case for the Crown and often is highly prejudicial to the accused."

92 With respect, I disagree. The importance of publication, even in committal proceedings, has long been recognised. So much is apparent from Ormiston J's careful analysis of the case law in Moularas v Nankervis, supra. His Honour there (at 374) refers to Lewis v Levy (1858) El Bl and El 537, at 558 - 559; 120 ER 610, at 617 where Lord Campbell CJ, in delivering the judgment of the court of Queen's Bench, said:

"But, although a Magistrate upon any preliminary inquiry respecting an indictable offence may, if he thinks fit, carry on the inquiry in private, and the publication of any such proceedings before him would undoubtedly be unlawful, we conceive that, while he continues to sit foribus apertis, admitting into the room where he sits as many of the public as can be conveniently accommodated, and thinking that this course is best calculated for the investigation of truth and the satisfactory administration of justice (as in most cases it certainly will be), we think the Court in which he sits is to be considered a public Court of justice ... In R v Wright ... that great Judge, Mr Justice Lawrence ... observed that, though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of Courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings."

93 Ormiston J points out (ibid) that the substance of these observations was repeated with approval by Lord Hewart CJ in a case relating to a charge to a grand jury in R v The Evening News; ex parte Hobbs [1925] 2 KB 158 at 167 - 168.

94 In R v Gray (1865) 10 Cox C.C. 184, at 194, Fitzgerald J said:

"It appears to me that the security obtained by publicity for the due administration of justice is this, that it brings to bear on that administration at once the pressure and the support of public opinion - its pressure to prevent intemperance on the part of the judge - to prevent corrupt or improper proceedings, and, on the

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contrary, its support where justice is administered in a pure, fair, and legitimate manner. It has been said, and said truly, that possibly in particular cases there may be inconvenience to individuals from the early publication of evidence or of statements with respect to matters that are subsequently to be tried more solemnly; but it has been well observed, too, that this inconvenience to individuals is infinitesimal in comparison to the great public advantage given by that publicity."

95 This passage, too, was repeated with approval by Lord Hewart CJ in R v The Evening News; ex parte Hobbs, supra, at 168.

96 In Kimber v The Press Association [1893] 1 QB 65 Lord Esher said, at 68 - 70:

"Under certain circumstances ... publication may be very hard upon the person to whom it is made to apply, but public policy requires that some hardship should be suffered by individuals rather than that judicial proceedings should be held in secret. The common law, on the ground of public policy, recognises that there may be greater danger to the public in allowing proceedings to be held in secret than in suffering persons for a time to rest under an unfounded charge or suggestion ... .

It was said that at a later part of the proceedings when the summons had been issued and was before the Court for hearing, s 19 [of 11 & 12 Vict. c. 42] provided that the Court or room in which the magistrates sat should not 'be deemed to be an open Court', and that it would be ridiculous if the Court or room were to be deemed an open Court when the application for the issue of the summons was heard. I cannot see that. Nor can I agree with the meaning sought to be given to the section. All that it says is that 'the room or building in which such justice or justices shall take such examinations and statement as aforesaid shall not be deemed to be an open Court for that purpose; and it shall be lawful for such justice or justices, in his or their discretion,' to order the Court to be closed to the public [and I should mention that s 66 of the Act makes similar provision]. Having regard to the fair meaning of the enactment it is obvious from the second part that the justices have a discretion whether they will allow the public to be in the Court or not. They may, or they may not, abstain from preventing the public from remaining there [and s 66 of the Act requires them not to make

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an order of that kind "unless it appears to them that the ends of justice require them so to do"]. ... ; but, if it is not so closed by the order of the justices, then it is an open Court."

97 In the same case Kay LJ said (at 75 - 76):

" ... I also agree that in the present case there is a possible hardship to the plaintiff in the publication of the report. But it is of such extreme importance that publicity should be given to all judicial proceedings that that consideration seems to me to outweigh what have been pointed out as the possible evils attending a publication of this kind."

98 Ormiston J, in Moularas v Nankervis, supra, at 377, considered that most of what has been said in the reported cases about the virtues of open court hearings is applicable to committal proceedings. His Honour referred in that respect to what had been said by Gibbs J in Russell v Russell (1976) 134 CLR 495 at 520 (which is, in turn, quoted in the extract from the judgment of Ipp J in Re Robins referred to above) before saying that Gibbs J's observations are relevant notwithstanding the fact that committal proceedings are characterised as ministerial. He went on to say (at 337), in respect of s 43(1) of the Magistrates (Summary Proceedings) Act 1975 (Vic) (the material effect of which I have set out above), that:

"Bearing in mind the long history of s 43(1) and the practice over many years, and having had the benefit of extensive and careful argument from counsel for both parties, I have reached the conclusion that it is consistent with its proper interpretation that the well accepted principles as to the desirability of open hearings are applicable as a general rule to committal proceedings."

99 I agree, with respect, with that conclusion.

100 While it is true that publication of evidence led in the course of committal proceedings raises issues that are not raised by publication of evidence led at a trial it seems to me that the principle of open justice is, subject to one important qualification to which I shall return below, as much applicable in proceedings of that kind as it is in any other proceedings. It is important in proceedings of that kind to have publicity for the purpose of attracting the attention of persons with material information who are unaware of the proceedings. There is also there the consideration that public scrutiny will, to use the words of Fitzgerald P

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and Lee J in J v L & A Services Pty Ltd, supra, at 45, act as a strong disincentive to false evidence and a powerful incentive to honest evidence. Most importantly, a court is, in proceedings of that kind, no less accountable to the public than in proceedings of any other kind.

101 The important qualification to which I have referred is, of course, that mentioned above to the effect that publication of evidence led in the course of committal proceedings might tend to prejudice a later fair trial. In such a case publication may well be undesirable in the interests of justice. However, as I have emphasised, no such consideration is present in this case.

102 It is consequently my opinion that not only was it open to the learned Magistrate to reach the conclusion at which he arrived but he was entirely correct in arriving at that conclusion.

Conclusion

103 It follows that the appeal should be dismissed.