The State of Western Australia v Edwards [No 6]
[2020] WASC 22
•31 JANUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- EDWARDS [No 6] [2020] WASC 22
CORAM: HALL J
HEARD: 23 & 24 JANUARY 2020
DELIVERED : 31 JANUARY 2020
FILE NO/S: INS 164 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
BRADLEY ROBERT EDWARDS
Accused
Catchwords:
Criminal law - Suppression orders - Where suppression order opposed by media outlets - Openness of court - 'Interests of justice'
Legislation:
Criminal Procedure Act 2004 (WA), s 171
Result:
Suppression order lifted, new suppression order made
Category: B
Representation:
Counsel:
| Prosecution | : | Ms C Barbagallo SC |
| Accused | : | Mr P Yovich SC & Ms G Cleary |
| Intervenor | : | Mr A McCarthy |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Mony De Kerloy |
| Intervenor | : | Mr N Stagg |
Case(s) referred to in decision(s):
Hopley v The State of Western Australia [2014] WASCA 30
Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288
West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10
HALL J:
Background
On 23 January 2020 the State applied for an order suppressing publication of any information regarding the evidence of three expert witnesses who were involved in the post‑mortem examinations of Jane Rimmer and Ciara Glennon. The reason given for that application was that the evidence would include details of the examinations of which the families of the victims were unaware. Reference was made to a media article that had reported information about the examination of the reproductive organs of one of the victims, that information being revealed during the cross‑examination of another witness.
The import of the submissions by the State was that details that were of limited relevance may be given disproportionate attention in the media. This is in part a function of the high degree of public interest in this case. In essence the State's position was that the public interest in being informed may be outweighed by the degree of distress caused to the families of the victims.
I made a temporary suppression order, prohibiting publication of the evidence of the three witnesses concerned, being Dr Karin Margolius, Dr Clive Cooke and Dr Alana Buck. Dr Margolius is deceased and her evidence is in the form of statements and post‑mortem examination reports that have since been read into the record. I said that I intended to review the order once the evidence had been given, or earlier if appropriate. I also said that the media would be given the opportunity to consult with their legal advisers and make submissions as to whether the order should be continued, varied or revoked.
On 24 January 2020 I heard further submissions from the State in regard to the suppression order. Counsel representing one of the media organisations was also in attendance, though not required to make any substantive submissions. At the conclusion of that hearing I revoked the original suppression order and made a new order in more limited terms. In essence the new order prohibits publication only of those parts of the evidence that relate to the examination of the intimate areas of each deceased person. I gave brief oral reasons for making the orders. I said that more detailed written reasons would be prepared and published, to ensure that the basis for making the orders was properly understood.
Relevant principles
The openness of the courts is a fundamental aspect of the administration of justice. The conduct of court proceedings in public means that they are fully exposed to scrutiny. This ensures that standards are maintained and that public confidence in the criminal justice system is not undermined. The principle of open justice should not be viewed as the ultimate objective, divorced from the rationale for its existence.[1]
[1] Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288 [32] (McLure P).
The principle of open justice is reflected in s 171(2) of the Criminal Procedure Act 2004 (WA) (CPA) which provides that, subject to exceptions provided for in that section, all proceedings in a court are to be in open court and the courtroom where the court sits is to be open to the public unless the CPA, the rules of the court or another written law provides otherwise.
An essential aspect of the openness of the courts is access by the media. Not all people who wish to attend court proceedings are able to do so. Many members of the public rely on the media to keep them informed as to what occurs in the courts. Generally speaking the media should be able to report on any matter that occurs in open court. The role of the media is to provide an accurate and fair account of the proceedings. It can be assumed that members of the media seek to do this by their reports and that they have no interest in being merely prurient, offensive or in causing unnecessary distress.
The starting position is that all proceedings occur in open court and can be reported on. However, the court may, in some circumstances, make a suppression order. This can only occur if there are proper grounds to do so. It is not for the public or the media to show that they should be permitted to be present or report on evidence; it is for the party who seeks a suppression order to show that they should not.
The circumstances in which a suppression order may be made are provided for in s 171(4) of the CPA. That subsection provides as follows:
(4)On an application by a party to the case, or on its own initiative, a court may, if satisfied it is in the interests of justice to do so ‑
(a)order any or all persons, or any class of persons, to leave or be excluded from the courtroom during the whole of the proceedings, or a part of them specified by the court;
(b)make an order that prohibits the publication outside the courtroom of the whole of the proceedings, or a part or particular of them specified by the court;
(c)make an order that prohibits or restricts the publication outside the courtroom of any matter that is likely to lead members of the public to identify a victim of an offence.
It is plain from use of the word 'may' that whether or not a suppression order is made is matter of discretion. The relevant consideration is whether a suppression order would be in 'the interests of justice'. Circumstances in which the interests of justice may require a suppression order include where the safety of a witness could be compromised by revealing their identity, or where a witness would be reluctant to give evidence due to embarrassment or exposure of intimate private information. The making of a suppression order may alleviate the concerns of a witness and overcome reluctance to give evidence in open court. The objective in such cases is to ensure that all relevant evidence is made available to the court; however the interests of justice is a broad term and may encompass other considerations.
In West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10 the issue was whether it was in the interests of justice to make a suppression order under s 171(4)(b) prohibiting the publication of the identity of a witness. At [31] Owen JA said:
The 'interests of justice' is a broad concept and accommodates a wide range of considerations. It should not exclude from consideration, when appropriate and with significant limitations, the personal interests of those involved in judicial proceedings. The phrase should not be limited, as the appellants suggested, to mean 'in the interests of the administration of justice'. The phrase means exactly what it says. It must be given a meaning which properly reflects the breadth of the matters which may be taken into account when considering whether to make an order.
In West Australian Newspapers the appeal against the suppression order was dismissed. Owen JA (with whom Wheeler and Buss JJA materially agreed) referred to the fact that the witness in that case 'would suffer harm beyond mere embarrassment, distress, loss of privacy or shame if his identity were revealed'[2] and that since only the identity of the witness was suppressed and the media were free to report the details of the evidence the order did not materially detract from the media's ability to publish a fair and accurate report of the proceedings. It is only in exceptional circumstances that the courts depart from the principle of open justice by prohibiting publication of the identity of a witness.[3]
[2] West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10 [34].
[3] See also Hopley v The State of Western Australia [2014] WASCA 30 [21] ‑ [22] (McLure P).
There is a public interest in the exposure of court proceedings to public scrutiny to ensure maintenance of confidence in the integrity and independence of the courts. That public interest will generally prevail over the adverse personal consequences to litigants and those associated with them that can arise from the public nature of court proceedings. However, the possibility of collateral damage to litigants, victims and those associated with them is a relevant consideration. That consideration can, in limited circumstances, justify a departure from the ordinary rule relating to court proceedings.[4]
[4] Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221 [33] (McLure P).
In Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221 McLure P said at [34]:
The weight to be given to the interests of the participants in the court process will vary according to the nature of the proceedings, the nature and effect of the prohibition in question, its connection with the core activity of court proceedings and the extent to which the rationale for the principle of open justice is or may be adversely affected. In this case, the appellants were given a copy of the exhibit but in effect prevented from broadcasting it. The central question is whether the extension of the ordinary rule to cover unconditional use by the appellants of the exhibit played and tendered in court is required to enable or facilitate the public scrutiny essential to the maintenance of confidence in the integrity and independence of the court.
Application to this case
There is no suggestion in this case that a suppression order is required to ensure that the court receives all relevant evidence. Indeed, the evidence of the relevant witnesses will be given in open court and the general nature of that evidence was referred to in the opening address of the prosecution.
What is sought is an order that, in effect, limits publicity of evidence given in open court in order to protect the families of the victims from possible distress. Whilst I acknowledge that an order for such a purpose may be a possibility, there must be recognition that criminal trials by their nature will often include evidence of a potentially distressing nature. In particular, it is a regrettable but unavoidable part of a murder trial that there will be evidence from forensic pathologists as to how the deceased died and as to the post‑mortem examination. That evidence is often a significant part of such a trial. It is evidence that is likely to be upsetting to a family of the deceased. That, of course, is not its purpose. Nor is it usual to suppress publicity of such evidence, since those who may be upset by it can usually be warned not to attend and can avoid any publicity.
In the present case the evidence is in more detail than in some cases, however the nature and content of it is not unusual. Dr Margolius and Dr Cooke are forensic pathologists who give evidence regarding the examination of the bodies of both victims as found, the subsequent post‑mortem examinations at the State Mortuary and their opinions as to the cause of death and injuries. In this case that involves some reference to the state of decomposition of the bodies of the deceased. Dr Buck is a forensic anthropologist who gives evidence regarding the examination of the bones of the deceased. There may be parts of that evidence that are of less relevance than other parts, but that alone does not mean that the court should assume that the media will miss‑report it, far less that any of it should be suppressed.
On the other hand it is clear that this case has attracted an extraordinary level of media coverage. The testimony of almost every witness is apparently reported and analysed. Details that may be passed over in other cases are unlikely to be overlooked in this case. Matters that have only slight relevance may be reported and may be difficult for the families of the deceased to avoid.
In my view the following are relevant factors in this case:
(1)The evidence from the three witnesses is relevant and admissible. These witnesses give evidence as to the cause of death and as to possible injuries suffered by the victims. The evidence forms an important part of the prosecution case. To prohibit publication of this evidence would lead to an incomplete and possibly inaccurate report of the proceedings. It is in the interests of justice that any report of the proceedings be fair and accurate.
(2)The nature of the evidence is not unusual in a murder trial and is not evidence that is usually suppressed.
(3)The evidence has been heard in open court. There has been no application to close the court and no justification suggested for doing so. In these circumstances to suppress publicity of that evidence would create an unjustifiable distinction between those able to attend court and those who rely on the media.
(4)Evidence in regard to the post‑mortem examinations has already been referred to in opening and, extensively, in the evidence of other witnesses, including mortuary technicians and police officers who attended those examinations. The utility of any suppression order, even for the purposes claimed, must be very limited.
(5)The court has initiated a number of specific safeguards to avoid unnecessary distress to the families of the victims. These include the use of screens in the court to prevent the public from viewing post‑mortem videos and photographs; further any such photos and videos are designated as sensitive exhibits and not made available to the media or the public. The court has also provided a separate room for families of the victims where they can continue to monitor proceedings in private if they wish to do so. It is understood that the State has also provided liaison officers who are in communication with the families in order to advise them of the nature of forthcoming evidence.
(6)At the conclusion of the trial it will be necessary for me to produce a written judgment. That judgment will necessarily refer to the relevant evidence and this will include details of the post‑mortem examinations. It would be undesirable for portions of that judgment to be redacted to exclude reference to those examinations.
Taking into account those factors it was clear that the interests of justice would not be served by a continuation of the order as originally framed. Senior counsel for the State accepted that conclusion, but suggested that a more confined order was appropriate. Senior counsel said that the primary source of concern was evidence regarding examination of the intimate body parts of the deceased. The prosecution submitted that there was no relevance to the examination of these areas other than to exclude observable injury and that to permit publication of this part of the evidence would undermine the dignity of the deceased and cause unnecessary distress to their families.
The evidence relating to examination of intimate areas of the bodies of each of the deceased forms only a very small part of the total post‑mortem evidence. Furthermore, the prosecution maintains that that evidence is of little or no relevance. It is also accepted that the media should be permitted to report any evidence of conclusions regarding whether the deceased were sexually assaulted, and that they can do so without reporting any details of the actual examination of the relevant body parts.
In these circumstances I concluded that it was possible for a narrow suppression order to be made which would not compromise the ability of the media to give a full and fair report of the proceedings, but would provide the families with a measure of protection.
Conclusion
Accordingly on 24 January 2020 I revoked the original suppression order and made a new order in the following terms: There is to be no publication by any means of the evidence of Dr Karin Margolius, Dr Clive Cooke or Dr Alana Buck as to any matter, detail, finding or observation of their examination of the intimate body areas of Ms Glennon or Ms Rimmer. This order applies to both the media and members of the public. Any person present in court is not permitted to communicate these suppressed matters to any person outside the court, including by social media, internet or verbal or written communications.
That order was later clarified as not excluding any reporting of opinions of the witnesses regarding the possibility that the victims were sexually assaulted, subject to there being no reporting of any details of the examinations on which such opinions were based.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AL
Associate to the Honourable Justice Hall31 JANUARY 2020
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