Walkuski v Director of Public Prosecutions (SA)

[2014] SASC 110

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

WALKUSKI v DIRECTOR OF PUBLIC PROSECUTIONS (SA)

[2014] SASC 110

Reasons for Decision of The Honourable Justice Gray

19 August 2014

EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - STATUTORY POWERS

EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - OTHER MATTERS

EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - IDENTIFICATION OF PERSONS

Appeal from a decision of a Magistrate revoking a suppression order.  Appellant previously convicted for sexual offences and serving a custodial sentence.  Sentence for prior offending formed alleged motive for conspiracy to murder sentencing Judge.  Appellant argued that publishing his identity or that of the sentencing Judge would enable the public to learn of his prior offending and sentence.

Whether public access to the sentencing remarks, or commentary about the sentencing remarks, would be prejudicial to the proper administration of justice.

Held per Gray J (dismissing the appeal):

1.  The sexual offences for which the appellant had previously been convicted are of an entirely different character to the alleged offending in the present case. 

2.  Any potential prejudice can be addressed by jury directions.

3.  The information concerning the appellant’s prior offending and sentence is already publicly available, reducing the utility of making a suppression order.

Evidence Act 1929 (SA) s 69A; Criminal Law Consolidation Act 1935 (SA) s 12 and s 29, referred to.
R v Walkuski [2007] SADC 121; R v Walkuski [2010] SASC 146; B, RD v Channel Seven Adelaide Pty Ltd (2008) 103 SASR 478; Advertiser Newspapers Pty Ltd v B, RD (2008) 103 SASR 495; Channel Seven Adelaide Pty Ltd v An Accused (2008) 103 SASR 459, considered.

WALKUSKI v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2014] SASC 110

Magistrates Appeals:       Criminal

GRAY J.

1. This is an appeal from a decision of a Magistrate revoking a suppression order made pursuant to section 69A of the Evidence Act 1929 (SA).

   Introduction

2. The appellant, Frederick Bernard Walkuski, has been jointly charged on an Information with Hendrik Gysbertus Van Schaik with the offences of conspiring or soliciting to commit murder,[1] and conspiring to do an act endangering life or creating a risk of serious harm.[2]  The offences were alleged to have occurred between 1 April and 4 August 2014 at Murray Bridge.  The charges allege conspiracy to murder and destroy the homes of two Judges of the District Court and to destroy the home of a senior police officer.  Mr Walkuski is currently serving a sentence of imprisonment.[3]  The sentencing Judge is one of the victims of the alleged offences. 

   [1] Contrary to section 12 of the Criminal Law Consolidation Act 1935 (SA).

   [2] Contrary to section 29 of the Criminal Law Consolidation Act 1935 (SA).

   [3]    R v Walkuski [2007] SADC 121; R v Walkuski [2010] SASC 146.

3. At 10.00 am on 4 August 2014, the proceeding was called on for hearing before a Magistrate in Murray Bridge. Mr Walkuski, who at the time was hospitalised, appeared ex custody by telephone. He was represented by his solicitor. An interim suppression order was made pursuant to section 69A(3) of the Evidence Act, suppressing details of the accommodation of Mr Walkuski.  The matter was then deferred until 11.30 am, when further suppression orders were made including an order suppressing the nature of the offences for which Mr Walkuski was currently serving a sentence and the details of such sentence.  The Magistrate indicated that this order was to be reviewed following the filing of declarations. 

4. A further suppression order was made in respect of the publication of the names of the alleged victims and anything tending to identify the alleged victims in relation to the allegations the subject of the Information for a period of 28 days.  This order was made on the application of the Director of Public Prosecutions to prevent undue hardship to the victims. 

5. On 11 August 2014, at the request of the Director, the matter was called on for the hearing of an application to revoke the order suppressing the names of the alleged victims and anything tending to identify those alleged victims.  The solicitor for Mr Walkuski opposed the application.  However, he sought the maintaining of the suppression order only in relation to the identity of one of the victims, the Judge who had sentenced Mr Walkuski.  It was submitted that this was necessary for the purpose of ensuring a fair trial and in the interests of the proper administration of justice.  The media made no submission in relation to the application to vary the suppression order.  The Magistrate granted the revocation application on the basis that he was not satisfied that the fairness of any trial would be compromised and that it was appropriate to grant the application in the proper administration of justice.  As a consequence, an order was made revoking the suppression of the names of the alleged victims and anything tending to identify those persons.  In all other respects, the suppression orders were to continue. 

6. The solicitor for Mr Walkuski then indicated that an appeal would be lodged and applied pursuant to section 63A(3) of the Evidence Act for an interim suppression order for 72 hours to maintain the status quo.  This application was granted.

7. On 12 August 2014, Mr Walkuski filed a notice of appeal against the revocation of the suppression order made by the Magistrate insofar as that order suppressed the name of the District Court Judge who sentenced Mr Walkuski.  Two grounds of appeal were advanced.  It was said that the revocation of the suppression order would “establish conditions that were likely to prejudice the fair trial of Mr Walkuski”.  It was further said that the revocation of the suppression order would “substantially render ineffective the other order of the Magistrate, being the order suppressing details of Mr Walkuski’s sentence and offending. 

8. An affidavit filed by the solicitor of Mr Walkuski in support of the application set out the history of the matter and then addressed the hearing before the Magistrate of the Director’s application for revocation as follows:

   I appeared in the Adelaide Magistrates Court on the 11 August 2014 before His Honour Mr Harrap SM on an application by the Director of Public Prosecutions seeking the lifting of the orders suppressing the publication of identities of the victims of the alleged offending.

   I opposed that order in as much as I sought the continued suppression of the name of the Learned Judge who had sentenced the appellant. The press were present and made submissions.

   The grounds [for opposing the Director’s application] were that:-

   I was instructed that the appellant denied the offending at Bar.

   If a member of the public were to conduct a google search entering the name of both the Judge and the appellant that search would immediately lead to articles reporting the sentencing remarks of the Learned Judge. Those remarks contained details of the offences to which he had pleaded guilty and details of the sentence.

   Whist some of the details of the sentence and offending might be lead during the course of a trial, they would be before the jury after the jury had been properly directed and warned by the Trial Judge as to the permissible and impermissible uses of that material.

   To have the material readily accessible to interested members of the general public, all of whom could be potential jurors, would lead to conditions which prejudiced a fair trial of the accused.

   The Court had an overarching duty to ensure a fair trial.

   The ongoing order was necessary to prevent prejudice to the proper administration of justice.

   To release the name of the sentencing Judge would substantially render ineffective the second of the orders made by Her Honour Ms Anderson SM.

   The affidavit exhibited a copy of the Information and a copy of the Magistrates Court record.  No other evidence was put before the Court.

9. The matter was called on for urgent hearing before me on 13 August 2014.  At the hearing, I made an order suppressing from publication any matters discussed or submissions made at the hearing pending the disposition of the appeal.  On 14 August 2014, I dismissed the appeal.  I now publish my reasons.

   The Appeal

   Section 69A

10. Before turning to consider the submissions on appeal, it is convenient to set out the relevant terms of section 69A of the Evidence Act:

    Suppression orders

    (1)     Where a court is satisfied that a suppression order should be made—

    (a)     to prevent prejudice to the proper administration of justice; or

    (b)     to prevent undue hardship—

    (i)     to an alleged victim of crime; or

    (ii) to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings; or

    (iii)     to a child,

    the court may, subject to this section, make such an order.

    (2) If a court is considering whether to make a suppression order (other than an interim suppression order), the court—

    (a)     must recognise that a primary objective in the administration of justice is to safeguard the public interest in open justice and the consequential right of the news media to publish information relating to court proceedings; and

    (b)     may only make a suppression order if satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship, to justify the making of the order in the particular case.

    ...

11. The effect of section 69A(1)(a) is to grant the court a discretion to make a suppression order if it is satisfied that it should make the order to prevent prejudice to the proper administration of justice. This discretion is governed by the requirements of section 69A(2), which are expressed in mandatory terms. Sub-section (2) requires the court to recognise that a primary objective of the administration of justice is to safeguard the public interest in open justice and the consequential right of the news media to publish information relating to court proceedings. It also provides that a suppression order may only be made where the court is satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship, to justify the making of the order in a particular case.

12. In B, RD v Channel Seven Adelaide Pty Ltd,[4] the Court considered the exercise of its discretion to make an order under section 69A of the Evidence Act.  Doyle CJ, with whom White and Layton JJ agreed,[5] considered section 69A in the context of the common law principles of open justice and observed:[6]

    [4]    B, RD v Channel Seven Adelaide Pty Ltd (2008) 103 SASR 478.

    [5]    Doyle CJ’s judgment has also been cited with approval by this Court in Advertiser Newspapers Pty Ltd v B, RD (2008) 103 SASR 495.

    [6]    B, RD v Channel Seven Adelaide Pty Ltd (2008) 103 SASR 478, [15], [17]-[19], [23]-[24].

    It is a principle of the administration of justice in Australia that ordinarily, justice is administered in courts that are open to the public, and that public reporting of those proceedings and public comment on them is permissible. ...

    Statutory provisions for the making of suppression orders qualify this common law principle.  Courts are often criticised for making suppression orders.  If the order is wrongly made, the criticism is justified.  But it needs to be understood that when courts make suppression orders, they do so because Parliament has, by statute, conferred the power to do so.  When the statutory criteria for the making of an order exist, and subject to any discretionary or like considerations, the Court should make the order.  To decline to do so would be erroneous, because Parliament has enacted that when appropriate circumstances exist, the order is to be made.

    Section 69A(2) of the Act replaces an earlier provision. It is clear from the change that Parliament made and from the second reading speech of the Attorney-General that the newly enacted subsection (2) is intended to make the criteria for making a suppression order stricter, and to make it more difficult for an applicant to make out the basis for the making of an order...

    When considering the meaning of s 69A, it is necessary to bear in mind that an accused person is entitled to a fair trial, or at least a trial as fair as the Court can secure, having regard to the powers available to the Court.

    ...

    The proper administration of justice requires that there be a fair trial. By s 69A(1), a basis for the making of a suppression order is that, but for the order, the publication of the relevant material would result in a trial that is not fair. But that is subject to the operation of s 69A(2).

    When one comes to consider the meaning of s 69A(2), one must bear in mind that this provision operates in the context of a system for the administration of justice that has at its centre the determination of guilt or innocence by a fair trial. In saying that, I do not overlook the fact that there are other relevant principles of public interest that come into play. Open justice is one of them. Appropriate recognition of the rights and interests of victims is another.

    Doyle CJ then addressed the circumstances in which the court may make an order under section 69A in the following terms:[7]

    The effect of s 69A(2) is to require a court, when considering whether to make a suppression order, to recognise Parliament’s declaration that “the public interest in open justice” is a primary objective in the administration of justice. It is for that reason that Parliament goes on to declare in s 69A(2)(b) that an order may only be made in the stated circumstances. But the publication of material that will prejudice a fair trial will, for the purposes of s 69A(2)(b), amount to a prejudice to the proper administration of justice. Accordingly, if the publication of the material sought to be suppressed constitutes a sufficiently serious threat of prejudice to the conduct of a fair trial, the basis for the making of an order in respect of that material exists.

    It does not follow that an order must or will be made. The Court must have regard to the requirement imposed on it by s 69A(2)(a), and must satisfy itself that the threat of prejudice to a fair trial is sufficiently serious to justify the making of an order that will limit “the consequential right of the news media to publish information relating to court proceedings”. The Court must be mindful of the fact that that right is derived from what the Court must treat as “a primary objective in the administration of justice”.

    [7]    B, RD v Channel Seven Adelaide Pty Ltd (2008) 103 SASR 478, [25]-[26].

13. In the Court below, Bleby J considered the balancing exercise required by section 69A(2) and said:[8]

    That paragraph clearly allowed the common law principles to which I have referred to to operate. It was a reminder to courts that the public interest in publication of information related to court proceedings was required to be given substantial weight. The present subsection (2)(a) appears to elevate the objective of open justice and the consequence of the news media to publish information in respect of court proceedings to “a primary objective”. It is not the primary objective. However, taken literally, as a primary objective, it would seem that this objective is to be treated as being on the same level as the other primary objective of the justice system, namely to secure that justice is done in a particular case. Does that mean then that a court must somehow choose between those two primary objectives? If so, how is it to make the choice? The question only has to be asked to find the answer. If the objective of doing justice by way of providing a fair trial is to give way to another primary objective of open justice, the very concept of open justice ceases to exist. It is no longer justice which is open but injustice. If a trial, by virtue of the unrestricted publicity of some fact, becomes unfair, there is a miscarriage of justice or an injustice. The objective of open and reportable justice can no longer be achieved. That can hardly have been the intention of Parliament. It follows that s 69A(2)(a), standing alone, must still be construed as giving paramountcy to the objective of securing that justice is done by ensuring that the particular trial remains a fair trial and not a miscarriage of justice.

    The most that can therefore be said of subsection (2)(a) is that it reflects a parliamentary intention that courts should regard the principle of open justice and the consequential right of the news media to publish information related to court proceedings as a significant and important consideration which must be brought to bear on a decision under subsection (1). However, it cannot, by definition, override the objective of securing, in a particular case, that justice is done and that a trial is conducted fairly. Otherwise, the Court is required to condone open injustice.

    ...

    Paragraph (b) does not refer to any threat of prejudice to the proper administration of justice as being sufficient to justify an order. It must be a “sufficiently serious threat of prejudice …” to justify the order in that particular case. It is only “special circumstances” that will give rise to such a sufficiently serious threat.

    The paragraph does not deny the operation of the overriding common law objective of ensuring that justice is done in a particular case. It attempts to qualify the circumstances of its implementation. There must be a serious threat of a miscarriage of justice, not just a mere possibility. The Court must be able to identify special circumstances, or circumstances out of the ordinary, that will give rise to such a serious threat. There must be some special feature of the case which affords a reason to believe that there exists a serious threat of a miscarriage if an order is not made.

    [8]    Channel Seven Adelaide Pty Ltdv An Accused (2008) 103 SASR 459, [31]-[32], [35]-[36]. Cited with approval in B, RD v Channel Seven Adelaide Pty Ltd (2008) 103 SASR 478; Advertiser Newspapers Pty Ltd v B, RD (2008) 103 SASR 478.

14. In Advertiser Newspapers v B, RD, Doyle CJ considered the degree of prejudice required under section 69(2):[9]

    ... s 69A(2) does not permit an order to be made merely because there is a theoretical possibility of a threat to the fair hearing of an application or to a fair trial, if a suppression order is not made. When asked to make a suppression order, a Court is entitled to take into account what is probable, and what is possible, in the future course of the matter in question. But at the end of the day, before the Court makes an order it must be satisfied in terms of the requirements identified in s 69A(2)(b). An order cannot be made on the basis that although no circumstances giving rise to a sufficiently serious threat of prejudice can be identified, the bare possibility of some such circumstance arising cannot be excluded. To make an order on that basis would be to turn s 69A(2) on its head, and to make an order because the possibility of the relevant circumstances arising had not been excluded.

    [9]    Advertiser Newspapers Pty Ltd v B, RD (2008) 103 SASR 478, [51].

    Submissions

15. On appeal, counsel for Mr Walkuski made submissions in accordance with the above extracts from the affidavit filed in support of the appeal.  In essence, it was his submission that, if the name of the sentencing Judge were disclosed, members of the public could conduct a google search for that name, which would immediately lead to a disclosure of the sentencing remarks of the district court Judge and articles about those remarks. 

1. An immediate difficulty confronted this submission.  A google search of Mr Walkuski’s name would readily lead to the disclosure of this information.  In other words, the revocation of the suppression of the name of the sentencing Judge would not make any material difference to a person researching the matter.  When these matters were drawn to counsel’s attention, a change of position occurred.  Acknowledging this difficulty, an immediate oral application was made for a suppression order in respect of Mr Walkuski’s name.  It was then said that, if such an order were made, there would be no need to suppress the name of the sentencing Judge. 

2. Counsel argued that the disclosure of the sentencing remarks would reveal details of the offences to which Mr Walkuski had pleaded guilty and the details of the sentence.  So much may be accepted.  It was then acknowledged that this material may well be before a jury on a trial, however, counsel submitted that the members of the jury would be warned and directed about the proper use of that material before its tender.  It was contended that if this material were readily accessible before trial, potential jurors may be exposed to the material, leading to prejudice that would be difficult for a judge to address in appropriate statements to members of a jury.

3. A difficulty confronting this submission is that there had been no prior application for Mr Walkuski’s name to be suppressed.  It is evident that the proceeding has already attracted a press interest both in this State and elsewhere.  No explanation was offered as to why there had not been any earlier application to suppress Mr Walkuski’s name.  As discussed above, it was accepted that a straightforward google search of Mr Walkuski’s name would lead to the sentencing remarks. 

4. Counsel contended that the danger of a juror becoming aware of the remarks was that this would disclose the nature of the offences and the offending conduct and that, as such, there was a risk of propensity reasoning. 

5. Counsel for the Director and counsel for the media contended that the details of Mr Walkuski’s previous offending were already readily ascertainable.  Though the Director reserved his position as to the use of the information at trial, it was accepted that the evidence of Mr Walkuski’s previous conviction would in all probability be before the Court, at least in broad terms, as relevant to the question of motive.  Counsel submitted that the earlier offending was of a wholly different nature to the present alleged offending of a conspiracy to commit murder and conspiracy to endanger life.  Any possible misuse of the information could be readily addressed by the giving of the clear and firm warnings. 

   Consideration

6. In my view, the defendant has failed to establish that publication of his or the sentencing Judge’s identity would create a sufficiently serious risk that he would not receive a fair trial.  The offences for which Mr Walkuski was previously convicted form part of the background to this alleged offending.  However, they are of an entirely different character to the offences with which he is presently charged.  It does not follow that a jury would presume guilt once aware of his prior offending.  The risk identified by Mr Walkuski in my view is properly characterised as theoretical. 

7. As at the date of the hearing of the appeal, the public is able to search for Mr Walkuski’s name in publicly accessible databases and review news articles which may well disclose his prior offending.  The public have also been able to access the judgments and sentencing remarks which address this offending.  The utility of suppressing the identity of Mr Walkuski or continuing to suppress the identity of the sentencing Judge is therefore severely diminished. 

8. If the matter proceeds to trial, the trial Judge, being fully aware of the evidence and any publicity surrounding the case, will direct the jury as to the manner in which they must conduct their deliberations.  This is the purpose of jury directions.  The nature of the information in question is not so complex or prejudicial that it could not be addressed by an appropriate jury direction.  Counsel for Mr Walkuski did not develop the submission that the evidence of Mr Walkuski’s prior offending would be prejudicial insofar that it suggests he is generally “of bad character”.  In any event, should such a concern arise, it may also be addressed by a jury direction.  It is also open to counsel for Mr Walkuski and the Director to take steps to ensure that an unprejudiced jury is selected at the time of trial.

   Conclusion

9. I am not satisfied that a suppression order should be made to prevent prejudice to the proper administration of justice or to prevent undue hardship.  Further, and having regard to the importance of safeguarding the public interest in open justice, I do not consider that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship, to justify the making of the order in this particular case.

10. For the foregoing reasons, I dismissed the appeal and Mr Walkuski’s application to have his name suppressed.