SG v Director of Public Prosecutions

[2003] NSWSC 413

CITATION:	SG v DPP & Ors [2003] NSWSC 413
HEARING DATE(S):	Tuesday 13 May 2003
JUDGMENT DATE:	16 May 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
DECISION:	Summons Dismissed
CATCHWORDS:	LOCAL COURT - COMMITTAL HEARING - SUPPRESSION OF DEFENDANT'S NAME AND/OR PUBLICITY - SUPERVISORY JURISDICTION OF COURT - ORDERS SOUGHT UNAVAILABLE
LEGISLATION CITED:	s93ID(1)(b)(i) Crimes Act 1900 s26(1) Matrimonial Causes Act 1950 (Imp)
CASES CITED:	AG v Mirror Newspapers 1980 1 NSWLR 374 David Syme & Co Ltd v General Motors-Holden's Ltd 1984 2 NSWLR 294 John Fairfax & Sons Ltd v Police Tribunal of NSW 1986 5 NSWLR 465 John Fairfax Group Pty Ltd (Receiver & Manager Appointed) v Local Court of NSW 1991 26 NSWLR 131 Nationwide News Pty Ltd v District Court of NSW 1990 40 NSWLR 486 Packer v Packer 1954 P 15 R v Broomfield; Ex Parte West Australian Newspapers Ltd (Ct Appeal, Supreme Ct of WA, 21 June 1991, unreported, per Malcolm CJ @ 22) R v Chief Registrar of Friendly Societies; Ex Parte New Cross Building Society [1984] QB 227 R v Ngo [2003] NSWCCA 82 @ par 82 Raybos Australia Pty Ltd v Jones 1985 2 NSWLR 47 Re Mr C 1993 67 A Crim R 562 Reid v Howard 1995 184 CLR 1 Rockett v Smith (Ct Appeal, Qld, unreported, 21 March 1991 per Derrington J @ 7)
PARTIES :	SG v Director of Public Prosecutions & Ors
FILE NUMBER(S):	SC 12955/02
COUNSEL:	P. Kintominas (Plaintiff) G. Smith (First Defendant) D. Sibtain with F. Hicks (Second and Third Defendants)
SOLICITORS:	Benjamin & Khoury (P) S.E. O'Connor (1D) Freehills (2/3D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Friday 16 May 2003

12955/02 - S.G. v DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS

JUDGMENT

1 HIS HONOUR: There is before the Court a summons seeking the following orders:

“1. That the proceedings herein be heard in camera.
2. That the Plaintiff be referred to in the judgment to be given in this these proceedings as ‘S.G’.
3. That until the sooner of the following events:
(a) the conclusion of any trial of the Plaintiff in the Supreme Court on the charges relating to the murders of his parents T G and M G and his sister C G; or
(b) the admission into evidence by a Judge of the Supreme Court in the trial (if any) of the Plaintiff in respect of the murder charges referred to in (a) above of the facts relevant to charge no. H14912551 laid against the Plaintiff under s.93D(1)(b)(i) of the Crimes Act 1900 in the Central Local Court on 16 august 2002; or
(c) the termination in favour of the Plaintiff in respect of the charges of murder referred to in (a) above; or
(d) the discontinuance of the said murder charges by the DPP against the Plaintiff herein,
the Plaintiff be referred to as ‘S G’ in the proceedings (including interlocutory proceedings) commenced against him in charge case no. H14912551 in the Central Local Court at Sydney, and in any bail application relating to that charge and in any subsequent trial in respect of that charge.
4. The Plaintiff be referred to as ‘S G.’ in any publication or report of any such proceedings.
5. That, until the sooner of the events referred to in 3(a), (b), (c) and (d) above, any evidence (including any facts sheets(s), submissions and any part of a judgment that refers to such evidence) relating to the facts relevant to the aforesaid charge no. H14912551 laid against the Plaintiff under s.93D(1)(b)(i) of the Crimes Act, that may be adduced or tendered in either the committal proceedings (including interlocutory proceedings) in the Local Court or any bail application relating to the murder charges be suppressed and a non-publication order be made in respect thereof.
6. That the Plaintiff be at liberty to serve upon any person or persons a minute of these orders and that person or persons be at liberty to apply to the Court for variation or discharge of these orders upon 7 days’ notice to the parties herein.”

2 The defendants are the Director of Public Prosecutions (DPP) and two media organizations John Fairfax Publications Pty Limited (Fairfax) and Nationwide News Pty Limited (Nationwide).

3 Some background concerning the summons should be sketched. On 13 June 2002 police arrested and charged the plaintiff with the murder of three persons. These were respectively his father, mother and sister. Each killing had taken place on 10 July 2001. At an appearance before the Central Local Court on 16 August 2002 the plaintiff was further charged with making a false statement with the intentions of inducing belief that goods were contaminated and causing alarm contrary to s93ID(1)(b)(i) of the Crimes Act 1900. (The references to s93D in the summons as recited above are obviously typing errors).

4 The Crown allegation is that this offence was committed to try to deflect attention from himself and inhibit successful investigation of earlier attempt to kill the victims by poison. On 3 July 2001 the plaintiff’s mother had been admitted to hospital with symptoms consistent with food poisoning. The deaths on 10 July of the plaintiff’s mother and father resulted from stab wounds and his sister from a combination of stabbing and other trauma.

5 Application was made to the presiding magistrate for an order “suppressing the plaintiff’s name” but this was refused. Thereafter on that day (16 August 2002) the plaintiff approached the duty judge in the Common Law Division and obtained, ex parte, orders as follows:

“I make the order suppressing any publicity of the fact that a charge under s93ID of the Crimes Act has been layed (sic) against Sef Gonzalez until 5pm Monday 19 August 2002.
I direct that an application for any further suppression order be listed in the Applications List for 2pm Monday 19th August 2002 before the Duty Judge.
I direct that a copy of the application and affidavit in support be served on the D.P.P. by midday Monday 19 Aug 2002 and direct the D.P.P. be informed of this order by 4.30pm this afternoon.”

6 The matter was relisted in accordance with those directions. The succeeding duty judge continued the relevant orders made on 16 August “until further order” and gave ancillary directions for preparation for hearing. Counsel representing each of the three present defendants attended at this relisting. On 24 October further directions were given by the List Judge including a requirement for filing initiating process which to that time had not been filed. On 29 October the matter was listed before a judge with a view to hearing but initiating process had still not been filed and further directions for this were given and orders that there be a suppression order “in relation to proceedings in this matter” and “in relation to the contents of any documents that have been or will be filed in these proceedings” until further order. In addition, the relevant orders made on 16 August were similarly extended.

7 A scheduled hearing in the Duty Judge’s Application List on 4 December could not be accommodated, I would infer, on account of the estimated length of hearing. Ultimately a hearing date for 13 May was fixed. In the meantime, there having been no order otherwise, the abovementioned have continued in force.

8 The plaintiff moves for orders in terms of the summons. At the commencement of hearing I declined to hear the proceedings in camera as sought by paragraph 1. It was pointed out that the suppression orders remained in force and counsel did not further press his application to close the court.

9 Counsel who appeared on behalf of the DPP specified that the stance taken was that the plaintiff’s claims were neither assented to nor opposed. Reference to some authorities was offered but no active participation in arguing the issues raised in the summons was sought.

10 Fairfax and Nationwide were jointly represented. On their behalf dismissal of the summons was sought. It was not disputed that the court had appropriate jurisdiction to make orders in terms of paragraphs 1, 2 and 6 of the summons but making of such orders was opposed. In relation to orders sought in paragraphs 3, 4 and 5 it was submitted that the court had no jurisdiction to make them. It is convenient to deal first with that issue.

11 The plaintiff argued that the court had relevant inherent power and/or jurisdiction vested by s23 of the Supreme Court Act namely:

“23. The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.”

12 This provision has been the subject of recent comment in the High Court of Australia. In a joint judgment (Toohey, Gaudron, McHugh and Gummow JJ) in Reid v Howard 1995 184 CLR 1, said:

“Although it has been said that the inherent power of a superior court cannot be restricted to defined and closed categories, the power is not at large. Nor is the jurisdiction conferred by s23 of the Supreme Court Act.” - @ page 16

and

“Moreover and of more importance, the inherent power and the jurisdiction conferred by s23 of the Supreme Court Act are to be exercised only as necessary for the administration of justice.” - @ page 17.

13 It was conceded by the plaintiff that research did not locate any case of the exercise of the asserted jurisdiction but reliance was placed upon the remarks of Denning LJ (as he then was) in Packer v Packer 1954 P 15 @ 22:

“What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.”

14 I do not accept that His Lordship was condoning usurpation of jurisdiction, indeed his judgment reveals that he was focussed upon construction of the word “children” in s26(1) of the Matrimonial Causes Act 1950 (Imp), a provision which he observed had been in substantially the same form since the Act of the same name of 1857, and he sought simply to extend the meaning to encompass other than legitimate children who had been excluded by a construction given in a previous case. In Packer his Lordship’s view did not prevail but a proposal to depart from judicial precedent is somewhat different from what the plaintiff seeks in this instance.

15 Neither am I persuaded that analogy can be drawn from, as was offered as an example, the development in the civil law of the Mareva injunction. Clearly that development involved recognition of a power to avoid rendering futile the exercise of undoubted jurisdiction.

16 There is no pending proceeding in this Court and the plaintiff, on any view, is asserting the existence of some form of supervisory jurisdiction over the Local Court. No appeal lies to this Court from the magistrate’s refusal to make the order for suppression of the plaintiff’s name, neither is the summons directed to seeking relief in the nature of the former prerogative writs of certiorari or mandamus.

17 Setting to one side any procedural consideration, the limitation of this Court’s jurisdiction, whether in terms of inherent jurisdiction or vested by s23, as not at large and is analogous to the general supervisory jurisdiction exercised by the Court of Kings Bench over Inferior courts and tribunals: Attorney General v Mirror Newspapers 1980 1 NSWLR 374.

18 Tested accordingly, I am unpersuaded that I have power to make orders such as are sought in paragraphs 3, 4 and 5 of the summons. Supervisory jurisdiction can be exercised to ensure that an Inferior court acts within the limits of its jurisdiction but it does not extend to correcting errors of fact or law: John Fairfax & Sons Limited v Police Tribunal of New South Wales 1986 5 NSWLR 465, nor, obviously to a substitution by this Court of a different determination from that of the magistrate.

19 As previously noted, it is not contested that there is jurisdiction to make the orders sought in paragraphs 1,2 and 6 of the summons. As I have mentioned, in the event paragraph 1 was not pressed. Paragraphs 2 and 4 are similar except that the former is limited to the instant hearing. Both seek to effect an inhibition against identifying the plaintiff.

20 Counsel for the plaintiff recognized the principles of open justice but argued that, in this case, if there were public knowledge of the allegations relating to the s93ID(1)(b)(i) charge and evidence about it was rejected in the anticipated trial for murder, that trial would thereby be rendered unfair. I reject that submission. If the postulated situation were to arise, I consider that the asserted risk, impliedly that jurors would be untrue to their oaths to try the issues on the evidence before them, would not outweigh the principles of open justice. The limit on derogation from the principle of open administration of justice has been described as most stringent and hence there is available full and open reporting by members of the public in attendance at courts, and by news media on behalf of the public generally. I would adopt what Kirby P (as he then was) articulated in John Fairfax Group Pty Limited (Receiver and Manager Appointed) v Local Court of New South Wales 1991 26 NSWLR 131 @ 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: see, e.g. David Syme & Co Ltd v General Motors-Holden’s Ltd 1984 2 NSWLR 294; Raybos Australia Pty Limited v Jones 1985 2 NSWLR 47; R v Chief Registrar of Friendly Societies; Ex Parte New Cross Building Society [1984] QB 227; R v Bromfield; Ex parte West Australian Newspapers Ltd (Court of Appeal, Supreme Court of Western Australia, 21 June 1991, unreported, per Malcolm CJ @ 22) Rockett v Smith (Court of Appeal, Queensland, unreported 21 March 1991 per Derrington J @ 7). A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice.”

21 I decline to make the orders sought in paragraph 2.

22 The order sought in paragraph 6 provides a focus upon a characteristic of the original order, obtained ex parte and continued, “suppressing any publicity”. There is no identification of who is to be bound by it other than the world at large. As McHugh JA (as he then was) said in Fairfax v Police Tribunal @ 477:

“Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the courts. An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative – not judicial-power.”

23 There are of course statutory provisions for and authorized occasions when in particular circumstances courts can sit in camera or identities are not publishable. Counsel for the plaintiff drew attention to administrative procedures whereby notice concerning inhibitory orders can be published on the court’s website but I reject any suggestion that this provides a basis for making orders against the second and third defendants with the intention of binding others. I recognize that the submission was made to rebut any argument that an order would be futile but those defendants’ opposition to making orders, as I have indicated, is based upon matters more fundamental.

24 A principal authority relied on by the plaintiff was Re “Mr C” 1993 67 A Crim R 562. That was a case before the Court of Criminal Appeal. The appellant sought leave to appeal against the severity of sentences he had received for armed robbery and assault. At the time he had recently been committed for trial for murder and this committal had attracted considerable publicity. In those circumstances, described by Hunt CJ at CL (Smart and James JJ agreeing) as unique, it was ordered that the applicant be referred to as such or as “Mr C”. Reference was made to the above quoted remarks of Denning LJ in Packer but, as I have indicated, those should be read in their context. Some criticism of Mr C was made in Nationwide News Pty Limited v District Court of New South Wales 1990 40 NSWLR 486 but it was cited as an exemplar in R v Ngo [2003] NSWCCA 82 @ par 82.

25 The order in Mr C was made in any event in respect of proceedings before the court which made it. The effect of disguising identity by pseudonym is to derogate from the principle of open administration of justice. Before there can be departure it is essential that there be necessity to do so in the proceedings before the court being asked to so depart. Reference can again be made to the judgment of McHugh JA in Fairfax v Police Tribunal @ 476-477 where he wrote:

“The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done is discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it .” (Emphasis added).

26 The summons should be dismissed. It follows that the interlocutory orders made on 16 August 2002 and 29 October 2002 as continued from time to time should be discharged.

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Last Modified: 05/26/2003