Tasmania v G and T
[2014] TASSC 71
•26 September 2014
[2014] TASSC 71
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v G and T [2014] TASSC 71
PARTIES: STATE OF TASMANIA
v
G, D P
T, P L
FILE NO/S: 400/2013, 356/2013
DELIVERED ON: 26 September 2014
DELIVERED AT: Launceston
HEARING DATE: 25 and 26 September 2014
JUDGMENT OF: Pearce J
EDITED REASONS FOR RULING DELIVERED ORALLY
CATCHWORDS:
Criminal Law – Procedure – Miscellaneous powers of courts and judges – Suppression orders –Inherent jurisdiction to order suppression of proceedings in open court – Publication of details of sentencing hearing of two accused likely to prejudice fair trial of co-accused in future – Order made temporarily suppressing publication of sentencing hearing.
Aust Dig Criminal Law [3159]
REPRESENTATION:
Counsel:
Applicant: L Mason
D P G: K Edwards
P L T: A Hensley
Solicitors:
Applicant: Acting Director of Public Prosecutions
D P G: Legal Aid Commission of Tasmania
P L T: Legal Aid Commission of Tasmania
Judgment Number: [2014] TASSC 71
Number of paragraphs: 17
Serial No 71/2014
File Nos 400/2013
356/2013
STATE OF TASMANIA v D P G and P L T
EDITED REASONS FOR RULING PEARCE J
(DELIVERED ORALLY) 26 September 2014
G and T both plead guilty to sexual offences. In Miss G's case she pleaded guilty to two counts of maintaining a sexual relationship with a young person and one count of involving a young person in the production of child exploitation material. In Miss T's case, she pleaded guilty to one count of maintaining a sexual relationship with a young person, two counts of aggravated sexual assault, four counts of committing an indecent act with a young person, one count of involving a young person in the production of child exploitation material, one count of making a bestiality product and one count of using methylamphetamine. The young persons against whom Miss T offended include the same young persons against whom Miss G offended.
The Acting Director of Public Prosecutions applies for an order temporarily suppressing publication of any report of the sentencing hearing. The application is made because a third person, M W, accused of crimes arising from the same circumstances, during the same period, and involving the same children, has pleaded not guilty to the crimes and is yet to face trial. The DPP contends that publication of a report of the sentencing hearing of Miss G and Miss T may prejudice a fair trial of Mr W. Yesterday I ordered that until further order or the disposition of the indictment against M W, whichever occurs first, publication of a report of the sentencing proceedings against Miss T and Miss G is prohibited. I adjourned the application so that any interested party could consider the matter and make submissions if they wished to do so.
The facts alleged by the Crown, including the facts alleged against Mr W, are not disputed by Miss G and Miss T. Miss G had been in a significant relationship with Mr W for about 18 years. Together they had four children, a boy B W, born in 2000, a girl L M W born in 2003 and two younger children. In 2010 Miss T moved in with them and a three-way sexual relationship between Mr W, Miss G and Miss T soon developed. Miss T had three children, a girl, K M born in 1996, and twin girls, S A T and S M T, born in 2006. In summary the Crown case against Mr W is as follows.
· He committed numerous unlawful sexual acts against his daughter, L M W, between 2006 and 2013, when she was between the ages of 3 and 10 years, at increased frequency between 2010 and 2013. The sexual acts alleged include digital penetration of her vagina, oral, vaginal and anal intercourse and other indecent assaults. It is also alleged that Mr W instigated by force or threat, and in some cases made visual recordings of other sexual acts between L M W and other children and Miss G and Miss T.
· He committed numerous unlawful sexual acts against Miss T's daughter, S A T, between 2010 and 2013, when she was aged between 4 and 7 years. The unlawful sexual acts include touching and licking her vagina, penetrating her vagina with his fingers, oral, vaginal and anal intercourse and other indecent assaults. It is also alleged that Mr W instigated by force or threat, and in some cases made visual recordings of other sexual acts between S A T and other children and Miss T.
· He committed numerous unlawful sexual acts against Miss T's daughter, S M T, between 2010 and 2013, when she was aged between 4 and 7 years. The unlawful sexual acts include oral sexual intercourse and anal rape and other indecent assaults.
· He committed numerous unlawful sexual acts against Miss T's daughter, K M, between 2010 and 2013, when K M was aged between about 14 and 17. The unlawful sexual acts include oral sexual intercourse and vaginal sexual intercourse.
· He committed numerous unlawful sexual acts against his son, B W, by instigating and encouraging unlawful sexual activity between B W and Miss T, and between B W and his sister L M W.
The unlawful sexual acts that Miss G and Miss T accept took place all occurred between 2010 and 2013 when the adults and the children were all living together. The Crown, and Miss G and Miss T, all maintain that the unlawful sexual acts that form the subject of the charges against them were instigated by Mr W. Miss G admits that during that period she committed numerous unlawful sexual acts against her daughter, L M W, then aged between 7 and 10 years, including licking her daughter's vagina and having her daughter touch and lick Miss G's vagina. She also accepts that she committed numerous unlawful sexual acts against Miss T's daughter, S A T, including licking her vagina and having her lick Miss G's vagina, at times when sexual activity between other adults and children was also occurring. Miss T admits that during the same period she committed numerous unlawful sexual acts with Miss G's daughter, L M W, then aged between 7 and 10 years, including licking her vagina and having L M W lick and touch Miss T's vagina. She also admits that she inserted a sexual aid into the vagina of her daughter, S A T. She admits committing indecent acts against her daughters, S A T and S M T, by exposing them to sexual activity between other children and Miss G and Mr W, by assisting Mr W to penetrate S M T's vagina with a sexual aid, indecently assaulting S M T by licking and touching her vagina, and committing an indecent act with B W by having him lick her vagina when he was aged about 13.
The Crown contends that Mr W is the principal offender, that the nature and extent of his crimes is more serious than that of Miss G and Miss T. Miss G and Miss T both claim that their criminal conduct was, at least in part, brought about as a result of the dominance, manipulation and control of Mr W achieved by violence and threats of violence, and their introduction by him to illicit drugs. The defendants also accept that they committed sexual acts against the children at the time they knew the children were being abused by Mr W.
The first issue is whether I have the power to make the order applied for. I have not been directed to, nor can I find, any express statutory power applicable to the circumstances of this case. The Evidence Act 2001, s 194J, has no application because it applies only to the publication of evidence or argument in the trial of a case before the court. The existence of an inherent power to suppress the publication of proceedings in open court seems to have been assumed by Underwood J (as he then was) in R v Ian Roger Matterson Ex Parte Christine Debra Moles (No 2) [1993] TASSC 75, although in that case his Honour did not make such an order. The question was referred to by the High Court in Hogan v Hinch (2011) 243 CLR 506. The majority concluded that resolution of the issue was not necessary for that case. However French CJ, after considering some authorities, said at [26]:
"In my opinion the better view is that there is inherent jurisdiction or implied power in limited circumstances to restrict the publication of proceedings conducted in open court. The exercise of the power must be justified by reference to the necessity of such orders in the interests of the administration of justice. Such an order may be made to and bind the parties, witnesses, counsel, solicitors and, if relevant, jurors and media representatives, or other persons present in court when the order is made, or to whom the order is specifically directed. It is not necessary for present purposes to reach a concluded view on the full extent of the power in relation to the general public."
I think I should, with respect, follow his Honour's approach. Thus the question is to be determined by consideration of the necessity for such an order in the administration of justice. Consideration of that issue requires the balancing of competing interests. As a general rule, admission of the public to attend judicial proceedings, and the publication of those proceedings, is an attribute of the court. Consequently, there is a general rule that the administration of justice must be open to full public scrutiny and comment. The importance of the principles of open justice have been emphasised and explained in many cases. As examples I refer to Matterson (above); In re the Australian Broadcasting Corporation (2003) 12 Tas R 308; [2003] TASSC 118 at [4]; John Fairfax and Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465; John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344. There is a paramount public interest in the due administration of justice, freedom of speech, a free media and an open society which requires court proceedings to be open and able to be reported. Informed public debated is promoted. In Hogan v Hinch (above) the French CJ said, at [20]:
"An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts." [References omitted.]
In most cases it is also in the public interest that, if possible, proceedings be publicised contemporaneously and not retrospectively. The interest of the public in contemporaneous reporting is to be contrasted with the interest of media outlets in contemporaneous reporting.
However it is also recognised that there are countervailing considerations to be balanced against these fundamental principles and the legitimate public interest that they reflect. One such countervailing consideration may be the need to prevent publication of material which may prejudice the fair trial of another. The entitlement to a fair trial is also a fundamental principle of our system of justice. As Deane J said in Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 at 58:
"The right to a fair and unprejudiced trial is an essential safeguard of the liberty of the individual under the law. The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraints and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law."
That passage, and other authorities to similar effect, was cited by the Vickery J in X v General Television Corporation Pty Ltd (2008) 187 A Crim R 533. That case is one of a number I have considered which discuss the circumstances which may justify an order restricting or prohibiting publication. I would refer in particular to the decision of the Victorian Court of Appeal in General TV Corp v DPP (2008) 182 A Crim R 496. In that case the court, when referring to the exercise of an inherent jurisdiction to supress publication of a proceeding cited as a "usual example" (without giving actual examples) the suppression of publication of the sentencing hearing of an accused who has pleaded guilty to offences shortly before his or her co-accused is to face trial.
What is submitted in this case is that the publication of material on the sentencing hearing may prejudice the ability to conduct a fair trial of Mr W. It is not publication of material that is embarrassing or damaging to Mr W that is in issue, rather it is his right to a fair trial. I must assess the extent of the risk that publication of these proceedings may prejudice the fair trial of Mr W and, if so, whether that risk outweighs the public interest in the publication of a contemporaneous report of these proceedings. I must apply my judgment to the ability of a jury empanelled in Mr W's trial to exclude from its deliberations anything it may have heard or read in the media about this sentencing hearing that may be relevant to that trial. I would take into account that there is, in any event, a prohibition, by s 194K of the Evidence Act, on the publication of any material which may lead to the identification of any person in respect of whom a crime has been committed. It follows from the relationship between these parties that the names of the defendants and the children could not be published. It is not yet known when Mr W's trial will take place, if a trial is necessary, but it may be some months away. In general, judicial experience is that the integrity of juries can be relied on and that juries comply faithfully with directions given to put aside prejudicial material and consider their verdict on the basis of evidence before the court. See General TV Corp v DPP (above) at [54] where the court cited Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of New South Wales (above) at [103] and Kirby ACJ (as he then was) in R v Yuill (1993) 69 A Crim R 450 at 453 – 454.
I permitted and received helpful and articulate submissions from representatives of the ABC and The Examiner newspaper. Both reporters wish to publish a fair report of the proceedings. They quite properly point to the strong public interest in publication of open court proceedings. As was pointed out the public has a right to know about how persons who commit such crimes, especially against their own children, are dealt with by this Court. As was also pointed out, the task of the media is to report when matters are new and newsworthy, and the impact of reporting, if a matter is reported at all, is likely to be much less if it is delayed. It was submitted that by the time of Mr W's trial the reporting of this hearing is unlikely to be fresh in the mind of a potential juror and that a potential juror would not be able to identify Mr W. Both media representatives undertook to not sensationalise their reports and carefully prepare their reports so as to minimise the risk of prejudice to Mr W. It is correctly pointed out that it is not uncommon to sentence an offender before the trial of a co‑offender without a non-publication order and without unreasonable risk of prejudicing the later trial.
There is one thing to be said at once about the submissions. I have no doubt about the integrity and professional standards of the two persons who made submissions to me, and I do not doubt their intentions or that they would do what they said they would do. I accept also the Acting Director of Public Prosecution's submission that I must be mindful of the chance that there may be publication by others not present in Court.
I have concluded that publication of this material does carry with it the likelihood that Mr W's fair trial may be prejudiced. I have reached that conclusion for these reasons. The details of the facts of this hearing are likely to attract considerable public attention by their distressing nature. The facts alleged against Mr W are inextricably linked with the facts alleged against the defendants. They cannot be reported fairly without reference to the three-way sexual relationship between the adults, the visual recording of sexual acts by Mr W, the claim by the defendants that their participation was instigated by him by threats, and the relationship between the accused persons and their victims, including that the victims of the crimes are their biological children. The facts surrounding the commission of the crimes by all three accused are so appalling and striking that the publication of a report of these proceeding is likely to leave a mark on the minds of potential jurors that persists until and at the time of the trial, even if it is months away. It is well recognised that it is difficult to give directions to guard against the prejudicial effect of inadmissible material in cases involving sexual offences, especially sexual offences against children. In such cases there is a real risk that a jury may form a prejudiced view of the accused, engage in irrational reasoning and form an instinct to punish rather than act on a rational assessment of the evidence. I cannot avoid the conclusion that there exists a serious risk that, in judging the guilt or innocence of Mr W, a jury would, even unconsciously, be influenced by the knowledge that two persons directly involved in significant aspects of his offending accept the truth of substantially all the assertions of fact made against them involving him, and attribute their involvement to his threats and influence. What is involved in this hearing is not, at least as far as the defendants are concerned, allegations or disputed contentions, or gossip or innuendo or rumour, but rather the unconditional acceptance by two co-accused of the truth of the facts which incriminate them and which concern Mr W. All of that would remain the case even despite the most careful and strong directions to a jury. I have also considered, given that I should only prohibit publication so far as is necessary, whether a restriction on reporting matters concerning Mr W, as opposed to Miss G and Miss T, may avoid the risk of an unfair trial. I have concluded that the matters are too inextricably linked to make such an order feasible even if it were capable of being drafted.
I have particular regard to the interests of the child victims. It would be a grave matter indeed if the trial of Mr W were delayed or stayed as a consequence of the publication of material which is considered, perhaps by a different judge at another time, to have unduly prejudiced his trial. The children have an interest not only in the early disposition of the trial but in its proper conduct so that, in the event of a conviction, there is no avoidable ground of appeal. For that reason I consider I should adopt a cautious approach.
I have also concluded that the public interest in contemporaneous reporting of this hearing, whilst important, does not outweigh the importance of ensuring a fair trial for Mr W. It seems to me that the protections offered by contemporaneous reporting, carry less weight in a hearing of this nature which involves no disputed facts or evidence. No permanent suppression is sought. I quite accept that retrospective reporting may contain less attraction and interest both to the public and thus to the media outlets. However, the conviction or acquittal of Mr W will be an occasion which will prompt a reason for publication.
For those reasons I have decided not to disturb the order already in place. I have little doubt that those persons who are present in Court and heard this order being made will understand the effect of it. I venture to record what I said yesterday, for the benefit of those not present who become aware of this order, that the fact that this order is not directed to any person or entity should not be misunderstood. Any person who, with knowledge of the order, saw fit to publish against its terms or frustrate the effect of the order would run a grave risk of being found in contempt of court.
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