The State of Western Australia v Schmidt [No 2]
[2012] WASC 324
•21 JUNE 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- SCHMIDT [No 2] [2012] WASC 324
CORAM: SIMMONDS J
HEARD: 21 JUNE 2012
DELIVERED : 21 JUNE 2012
FILE NO/S: INS 208 of 2011
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
STEFAN PAHIA SCHMIDT
Accused
Catchwords:
Criminal law - Practice and procedure - Suppression orders - Likelihood of prejudice to future retrial - Turns on own facts
Legislation:
Nil
Result:
Application to lift suppression orders granted
Category: B
Representation:
Counsel:
Prosecution : Ms A L Forrester & Mr M G Nicol
Accused: Mr T F Percy QC & Mr S B Watters
Interested parties : Mr A V McCarthy
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused: M J Ayoub & Co
Interested parties : West Australian Newspapers Ltd & Channel 7 Perth Pty Ltd
Case(s) referred to in judgment(s):
Pennington v The State of Western Australia [2012] WASCA 85
The State of Western Australia v Schmidt [2012] WASC 172
SIMMONDS J: This is my determination of an application made by counsel for West Australian Newspapers Ltd and Channel 7 Perth Pty Ltd for the lifting of suppression orders made by the court in this matter.
The present is an application to lift three suppression orders. One is an order dated 24 May 2012 by Jenkins J, and in the terms in which that order is reported in the suppression order report is the order:
No publication of any material that refers to any link Mr Schmidt may [have had] with the 'Rock Machine' outlaw motorcycle gang or any other outlaw motorcycle gang.
That is the first of the three. The second of the three is the first of two made by me in connection with the view in this matter on 13 June 2012. It reads, as indicated in the suppression order report, as follows:
There is to be no publication, whether audio, visual or textual or [in] any other form, of the accused under restraint, or arriving at or departing from, or otherwise being associated with the view.
That order is numbered 3 in the orders I made on 13 June 2012 as varied on 15 June 2012 and I will simply refer to it in terms of that order number 3.
Order 4 is as follows, in the same report:
The reasons for the granting of the application for a view are suppressed until further order.
It is not in any doubt that the suppression orders in question were liable to be lifted by further order and that I am in a position to make such a further order. The applicant for the lifting of the orders is West Australian Newspapers and Channel 7. Counsel for the applicant appeared before me to present oral submissions and speak to written submissions. In addition, counsel for Mr Schmidt appeared before me to present oral submissions, and as will be indicated, tender some evidentiary material.
Counsel for the State appeared but indicated no wish to be heard in relation to the matter. However, she and her junior remained throughout.
I immediately note that there is no case put against the lifting of the order which I have numbered 4, or certainly none pressed with any vigour. I am unable to see what could be successfully urged against the lifting of that order, having regard to the principles in Pennington v The State of Western Australia [2012] WASCA 85 [7] ‑ [8] (Martin CJ). I will reach those principles very shortly.
Accordingly, I would lift order 4.
As to the lifting of the order of Jenkins J and the order I have numbered 3, the starting point identified in Pennington [7] ‑ [8], which I accept as the starting point I must adopt, is as follows:
The starting point for the consideration of any question of that kind is the presumption of open justice, which is a very well-established and strong presumption. It has been referred to many times in the cases. A recent illustration of the court's adherence to the firmness of that presumption is found in the decision of the New South Wales Court of Appeal in Rinehart v Welker [2011] NSWCA 403, albeit that case was decided in a civil context.
The question therefore is whether there is any basis for departing from the strong and firmly established presumption that what occurs in our courts is open and transparent, there for all to see and there for all to report. The hypothesis upon which it is asserted that the suppression orders should be maintained is that there will be an appeal, and not just an appeal, but an expedited appeal. The reason for expedition is said to be the advanced age of Mr Pennington and the proposition that his capacity to instruct counsel may diminish if the appeal is delayed or any retrial following the appeal is delayed. So the first element of the hypothesis is that there will be not just an appeal but an expedited appeal [7] ‑ [8].
Here it appears to me that the hypothesis upon which I must operate is, as in Pennington, that there will be an appeal and not just an appeal but an expedited appeal.
I was not told of the case for expedition of the appeal. The case in Pennington is briefly described. However, I proceed on the basis that the case here is at least as strong as the case described in Pennington at [8], and I further proceed on the hypothesis that the application for expedition will be successful.
I still further proceed on the hypothesis that the appeal will be successful and a retrial of a proximate kind will be ordered. I consider my position accepting these hypotheses as coming to pass to be the same as that taken by his Honour the Chief Justice in Pennington, described in [10] of his reasons as follows:
Counsel for Mr Pennington accepts that, even on the most optimistic scenario, on the assumption that these hypotheses come to pass, the earliest that a retrial would take place is around six months from now. For my own part, I would think that to be a somewhat optimistic estimate. Of course, there are many imponderables within an estimate of that kind, but I think it is appropriate and indeed necessary for me to determine this application on the assumption that these hypotheses come to pass, because the possibility of them coming to pass cannot at this stage be excluded [10].
As I understand it, it was put against any such view of mine that the burden is on those seeking the lifting of suppression orders to show the level of possibility, or at least to make some showing in that regard, including most particularly the period to retrial. And I was referred to periods for listing of criminal trials, where such listing was sought today, being in the order of nine months, significantly longer than the period in Pennington which the paragraphs I have already referred to indicate.
Absent a showing of some kind in that regard, which I accept was not before me, it was put by the applicant that the case against lifting is one that should be seen to be significantly weaker than otherwise.
Whether that is so, it seems to me that the position as to acceptance of the hypotheses is for me as it was for the Chief Justice in Pennington.
And it cannot be said - and I do not believe the applicant put this proposition to me - that it is in any measure fatal to the case against lifting that no better position can be established by those putting that case against lifting.
It is not in contest, it seemed to me, that I had the discretion whether to lift the suppression orders, which should be exercised having regard to the starting point I previously referred to and balancing this with my assessment of the degree of risk of prejudice to a fair retrial of the accused.
The assessment called for was, I took it as common ground, that described in Pennington as follows:
The question that I must confront is whether there is reason to doubt that the jury are likely to follow that direction and abide by their oath to decide the case only on the evidence before them. That question is capable of being affected by the nature of the material that would be published if the suppression order was lifted. That was the reason why I was reluctant to make a decision on the day that the application was first brought, because it appeared to me to be necessary to evaluate the likely impact of the publications that would follow if the suppression order was lifted. If the material is particularly sensational and colourful, it would be much more likely that it would be memorable and still in the minds of a jury empanelled in, say, six months time, and perhaps so indelibly imprinted on those minds as to be incapable of exclusion from consideration, notwithstanding a direction to that effect given by the trial judge. If the material was of that character, then the risk of prejudice is significantly higher [13].
See also The State of Western Australia v Schmidt [2012] WASC 172 [22] (Hall J), a decision in this matter refusing an application for trial by judge alone.
In determining whether to lift the suppression orders from the starting point described, I have further considered it was not in contest that the following matters at least are relevant:
(1)The extent of publicity the trial, including conviction, had already received for what it indicated as to the expectable publicity were the suppression orders lifted as to the subject matter of those orders.
(2)The character of the subject matter of the suppression orders, particularly for what it indicated about the extent to which publicity would be specific to the accused, rather than relating to more general matters such as the motorcycle gang of which the accused was said to be a member. See Schmidt [22] ‑ [23].
(3)Possible directions to overcome prejudicial publicity, even particularly sensational or colourful publicity, while being alive to the possibility that the expected effects of expected publicity, or at least the expectable effects of expectable publicity, would be such as to be incapable of being overcome by such directions. See Pennington [13].
I should note at this point that, as I read that last paragraph in Pennington, it indicates to me at least that if publicity is of that last referred to kind the case against lifting suppression orders would likely be overwhelming.
I have carefully considered the account in Schmidt [6] ‑ [8], of material put before his Honour Hall J as to the public interest in the Rock Machine motorcycle gang and motorcycle gangs more generally, and so far as I can tell, to a comparable extent the then accused's connection to Rock Machine.
I did not have an opportunity to review that supporting affidavit material, which is substantial in length, in detail, but my brief review of it was sufficient, in my view, to amply support the characterisation of it in the paragraphs in Schmidt I have referred to.
As well, I accept that the fact of conviction, which was of course not present at the time of the decision in Schmidt, will in the short term at least only heighten publicity that would be given to the connection between the accused and the Rock Machine motorcycle gang or what was described in regrettable publicity already given in relation to this matter, a 'bikie' connection.
I further accept that publicity in relation to the Rock Machine in particular or motorcycle gangs more generally may call into attention again at a later time the offender's connection with the Rock Machine or other characterisation of him as a 'bikie'.
I have also considered an email identified as 'MFI A' for the purpose of these proceedings. It attaches a strong reaction to the conviction, expressed in terms which I do not need to report, but which I would characterise as deplorable. I consider for my purposes that the email confirms the impact of the case on a certain segment of the public. However, in my view, it does not add anything significant to the material I have already referred to when considered in the context of a subsequent conviction.
In my view, the starting point that I have referred to repeatedly in these reasons is a strong one: see Pennington [7]. It was not suggested to me, and I have seen no support for a view, that the coverage of the trial thus far, including the conviction, albeit the conviction is very recent, has been other than fair and accurate.
There is no reason to believe that there will be particularly sensational or colourful publicity concerning the connection, at least perhaps absent further developments towards a retrial. It might well be that a renewed application could be made at the appropriate time for a suppression order in similar terms to those made by Jenkins J, if such a reason were seen to present itself.
I leave aside questions of the transience of media coverage of an event such as this and of the crowding out, what is sometimes called the kaleidoscope effect, of such coverage by other matters of equal or greater sensational interest or colourful character in the media. Both matters were pressed on me by counsel for the applicant. Neither is one I consider I need to address.
I further consider that the accused in restraints at the view, the matter the subject of my order number 3, does not of itself or in combination with the accused's associations, the subject of the suppression order of Jenkins J, warrant a different conclusion in this matter than the one I would otherwise arrive at. The accused was of course in custody during the trial, a matter adverted to in publicity concerning the trial.
The particular impact of the accused in visible restraints at the view does not now, even after the trial has concluded, in my view add significantly to the calculus I need to undertake with respect to the determination I must make.
In view of all of the foregoing I have concluded that it is appropriate to grant the application to lift the suppression orders, not only my order number 4, but also the order of Jenkins J of 24 May 2012, and the order of mine numbered 3.
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