Wells v The Queen
[2017] VSCA 147
•21 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0093
| BARRY JOHN WELLS[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]As this was an interlocutory appeal, the publication of this judgment was previously restricted and anonymised under the name Marvin Soto (a pseudonym) v The Queen. It is now published without the adoption of pseudonyms.
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| JUDGES: | MAXWELL P, OSBORN and FERGUSON JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 29 May 2017 | |
| DATE OF JUDGMENT: | 21 June 2017 | |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 147 | First Revision: 5 February 2018 Pseudonyms removed |
| JUDGMENT APPEALED FROM: | [2017] VSC 199R (John Dixon J) | |
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CRIMINAL PROCEDURE — Application for leave to appeal — Interlocutory appeal — Application for permanent stay of proceedings refused by trial judge — Pre-trial publicity arising from pre-charge investigation by Independent Broad-based Anti-Corruption Commission — Admissions made by the accused under compulsory public examination — Extensive publicity about matters the subject of charges — Whether reasonably open to trial judge to conclude it was possible to put in place measures which would enable a fair trial despite adverse publicity — Dupas v The Queen (2010) 241 CLR 237 applied — Tuckiar v The King (1934) 52 CLR 335 distinguished – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Maidment SC with Mr M Thomas | Furstenberg Lawyers |
| For the Respondent | Ms L A Taylor QC with Mr K Armstrong and | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
OSBORN JA
FERGUSON JA:
Introduction
The applicant is facing one common law charge of conspiracy to defraud and ten charges of receiving a secret commission (contrary to s 176(1) of the Crimes Act 1958.) He is to stand trial on these charges on 17 July 2017. The charges were laid after the applicant had been both privately and publicly examined by the Independent Broad-Based Anti-corruption Commission (‘IBAC’).
The examinations were coercive and were part of IBAC’s investigation into allegations of corruption related to the award of contracts by the Victorian Department of Transport (‘DOT’) and Public Transport Victoria (‘PTV’) to entities associated with the applicant and an associate. At the relevant times, the applicant was a public servant in the DOT, later transferring to the PTV. The IBAC investigation was known as ‘Operation Fitzroy.’ The public examination of the applicant was the subject of publicity, including publicity about admissions he made that he had accepted cash and gifts in exchange for awarding multiple government contracts whilst in public office.
The applicant sought a permanent stay of the criminal proceeding against him. He contended that he cannot have a fair trial due to the publicity about his admissions. He also contended that it would be an abuse of process for the proceedings to continue, first because it would be unjustifiably and unfairly oppressive to him and, second, because it would bring the administration of justice into disrepute in light of what preceded the initiation of the criminal charges. Central to each of the applicant’s contentions was the coercive nature of the public examinations and the fact that details of his examination were widely published.
The trial judge refused the stay application.[2] The applicant seeks leave to appeal under s 295(2) of the Criminal Procedure Act 2009. The trial judge has certified that the decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal.[3]
[2]R v Wells [2017] VSC 199R (‘Reasons’).
[3]Criminal Procedure Act 2009 s 295(3)(b).
On the hearing of the appeal, senior counsel for the applicant abandoned the contention that the continuation of the proceeding would constitute an abuse of process. The contention that the applicant had suffered prejudicial disadvantage was also abandoned.
The sole issue for this Court thus becomes whether it was reasonably open to the trial judge to conclude that it was possible to put in place measures which would enable a fair trial despite the adverse publicity which the applicant has received.
For the reasons which follow we would refuse leave to appeal. In summary, we are not persuaded that the trial judge erred in his conclusion. The decision he made was necessarily one of fact and degree. In our respectful view, the judge’s conclusion was well open to him given, on the one hand, the nature of the publicity in issue, and, on the other, the lapse of time and the capacity of the trial judge to minimise the potential for unfair prejudice by way of appropriate jury directions.
The IBAC legislation
The Independent Broad-based Anti-corruption Commission Act 2011 (the ‘IBAC Act’) establishes, among other things, a regime for the identification, investigation and exposure of corrupt conduct,[4] prioritising the investigation and exposure of serious corrupt conduct.[5] ‘Corrupt conduct’ is defined to include conduct of a public officer that involves dishonest performance of the officer’s functions or that involves misuse of information acquired in the course of the performance of the officer’s functions as a public officer being conduct that would, if the facts were found proved beyond reasonable doubt at a trial, constitute a relevant offence.[6]
[4]IBAC Act s 8(a)(i), pts 3, 4, 6 and 7.
[5]Ibid s 8(aa).
[6]Ibid ss 4(1)(b), 4(1)(d).
IBAC’s functions include investigating corrupt conduct, holding examinations, and making referrals to other bodies, as well as other educational and preventative functions for the purpose of achieving the objects of the Act.[7] IBAC is permitted to disclose information it acquires to prosecutorial bodies.[8] IBAC may refer any matter which it considers is relevant to the performance of the prosecutorial duties and functions or the exercise of prosecutorial powers of such a body.[9]
[7]Ibid ss 15(2)(a), 15(3)(c), 15(3)(d), 15(5).
[8]Ibid s 41(1)(c).
[9]Ibid s 74.
Section 42 authorises IBAC to issue a confidentiality notice in respect of an investigation to a person, if, during the investigation, IBAC considers on reasonable grounds that the disclosure of a restricted matter would be likely to prejudice ‘the fair trial of a person who has been, or may be, charged with an offence’.[10]
[10]Ibid s 42(1)(c).
IBAC is empowered to hold an examination for the purposes of an investigation by it.[11] In this regard, IBAC may issue a witness summons to a person to give evidence at an examination and/or to produce documents or other things to the IBAC.[12]
[11]Ibid s 115.
[12]Ibid s 120(1)(a)–(c).
Section 117 provides that examinations are to be held in private unless IBAC considers on reasonable grounds that:
(1) …
(a) there are exceptional circumstances; and
(b) it is in the public interest to hold a public examination; and
(c)a public examination can be held without causing unreasonable damage to a person’s reputation, safety or wellbeing.
…
(4)For the purposes of subsection (1)(b), the factors the IBAC may take into account in determining whether or not it is in the public interest to hold a public examination include, but are not limited to—
(a)whether the corrupt conduct… being investigated is related to an individual and was an isolated incident or systemic in nature;
(b)the benefit of exposing to the public, and making it aware of, corrupt conduct….
The coercive nature of an examination is encapsulated in s 144(1). That section abrogates the privilege against self‑incrimination:
A person is not excused from answering a question or giving information or from producing a document or other thing in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty.
Section 144(2) circumscribes how the information obtained through an examination may be used. So far as is relevant here, it provides:
Any answer, information, document or thing that might tend to incriminate the person or make the person liable to a penalty is not admissible in evidence against the person before any court or person acting judicially, except in proceedings for
(a) perjury or giving false information; or
(b) an offence against this Act; or
...
(f) a disciplinary process or action.
IBAC may give directions as to who may be present during examinations.[13]
[13]Ibid s 119.
Either before or after an investigation is complete, IBAC may do a number of things, including referring the matter under investigation to a prosecutorial body[14] and providing or disclosing to that body information IBAC has in relation to the matter referred.[15]
[14]Ibid ss 164(1)(a), 74.
[15]Ibid ss 164(1)(a), 77.
IBAC has power to make reports.[16] IBAC is prohibited from including any information in its reports in relation to a matter or person which would prejudice any criminal investigation, criminal proceedings or other legal proceedings of which it is aware.[17] In addition, IBAC is prohibited from including in its reports a statement that a specified person is guilty of, or has committed, is committing, or is about to commit, any criminal offence or disciplinary offence, or a recommendation or opinion that a specified person be prosecuted for such an offence.[18]
[16]Ibid ss 15(7)(b), 162, 164.
[17]Ibid ss 162(5), 165(5).
[18]Ibid ss 162(6), 165(6).
The examinations of the applicant and publicity
As part of Operation Fitzroy, IBAC conducted a number of public examinations. It advertised the public hearings through its Twitter account and by notices published on 14 July 2014 in the Herald Sun and The Age.
The applicant was examined by IBAC at a public examination over a five week period starting on 21 July 2014.[19] He unsuccessfully objected to being publicly examined. He was also unsuccessful in seeking orders for a confidentiality notice;[20] orders restricting who could be present during his public examination;[21] and an order prohibiting the publication of the details of his public examination, including the evidence he would give.[22]
[19]He had been the subject of a private examination on 1 April 2014.
[20]IBAC Act s 42.
[21]Relying on ss 116 and/or 119 of the IBAC Act.
[22]Pursuant to s 19B of the Evidence (Miscellaneous Provisions) Act 1958 as it then was.
The applicant objected (but was compelled) to answer questions asked of him during the public examination. He made a number of admissions in relation to the allegations which are the subject of the criminal proceeding against him. By virtue of the limited use immunity provided by s 144(2) of the IBAC Act, the answers given may not be used against him in the criminal proceeding.
Following the public examination, however, some of the admissions he made were published in the mainstream media. For instance, The Age reported that the applicant ‘admitted he accepted cash and gifts in exchange for awarding multiple contracts and expressed surprise that he got away with the shonky deals he was making for so long’.[23] It also reported that he ‘made the unexpected admission while giving evidence … at the first public hearing of the state’s Independent Broad-Based Anti-Corruption Commission’.[24] ABC News reported that the applicant ‘admitted he awarded contracts to companies he was involved with, knowing he would make a profit from the deals’[25] and that he admitted ‘organising transport contracts for personal gain’.[26]
[23]Adam Carey, ‘Public Transport Victoria officer Barry Wells admits accepting cash for contracts’, The Age (online), 4 August 2014 <
[24]Ibid.
[25]Alison Savage, ‘IBAC: Former senior bureaucrat made personal profit from public contracts’, ABC News (online), 4 August 2014 <
[26]Alison Savage, ‘Barry Wells arrives for IBAC hearing’, ABC News (online), 4 August 2014 <
Through tweets, IBAC invited its followers on Twitter to read the transcripts of the public examinations which were published on its website. IBAC published its final report in relation to Operation Fitzroy in October 2014. The report was tabled in Parliament on 18 March 2015. Both the report and the examination transcripts were removed from IBAC’s website on 5 June 2015. The applicant was charged a week later, on 12 June 2015. He appeared in the Magistrates’ Court on 6 July 2015. This attracted further media attention, including further publication of what the applicant had said during the course of his public examination. IBAC’s October 2014 report remained accessible on the government website until at least 19 August 2015. A Magistrate made a non-publication order the following day. The applicant does not allege that there has been any fresh publication of information from his public examination since that order was made.
Mr Ooi, a co-accused, pleaded guilty and was sentenced on 6 April 2017. This attracted media attention. A search on the internet for information about Mr Ooi’s sentence produced results for earlier articles referring to the applicant and the admissions he had made during his public examination.
Principles for granting a stay
The general principles applicable to the granting of a stay in circumstances such as the present are well established. They may be summarised as follows:
(a) a permanent stay will only be ordered in an extreme case, because it effectively results in a refusal by the court to exercise jurisdiction with respect to the question of an accused’s guilt and the primary responsibility for deciding whether criminal proceedings should be maintained lies with the Executive and not with the court;[27]
[27]See, for example, Jago v District Court of New South Wales (1989) 168 CLR 23, 61 (Deane J), 76 (Gaudron J); R v FJL (2014) 41 VR 572, 575 [17] (Osborn JA, Redlich JA and Sifris AJA agreeing at 589 [90] and 589 [92] respectively).
(b) the governing principle is that there must be a fundamental defect confronting the trial such that nothing the trial judge can do in the conduct of the trial can relieve against its unfair consequences;[28]
[28]Jago v District Court of New South Wales (1989) 168 CLR 23, 34 (Mason CJ); Barton v The Queen (1980) 147 CLR 75, 111 (Wilson J); R v Glennon (1992) 173 CLR 592, 605–6 (Mason CJ & Toohey J) (‘Glennon’); Dupas v The Queen (2010) 241 CLR 237, 245 [18] (‘Dupas’).
(c) a prosecution may be stayed if it has been instituted and maintained for an improper purpose[29] or where its continuation would be unjustifiably and unfairly oppressive so as to amount to an abuse of process;[30]
[29]Williams v Spautz(1992) 174 CLR 509 (‘Williams’).
[30]R v Edwards(2009) 255 ALR 399 (‘Edwards’).
(d) an accused is entitled to be protected from an unacceptable and significant risk that the effect of prejudicial pre-trial publicity will preclude a fair trial;[31]
[31]Glennon (1992) 173 CLR 592, 623 (Deane, Gaudron and McHugh JJ).
(e) there is nothing remarkable or singular about extensive pre-trial publicity in itself, especially in notorious cases;[32]
[32]Dupas (2010) 241 CLR 237,250 [36] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
(f) it may ordinarily be assumed that jurors act conscientiously and, when properly directed by trial judges, only by reference to admissible evidence, relevant submissions and without the influence of extraneous considerations;[33]
(g) a relevant consideration is the substantial public interest of the community in having those who are charged with criminal offences brought to trial;[34]
(h) it is for the applicant to persuade a court that a stay should be granted.[35]
[33]Ibid 248–249 [29].
[34]Ibid 251 [37].
[35]Williams(1992) 174 CLR 509, 529 (Mason CJ, Dawson, Toohey, and McHugh JJ).
The applicant’s submissions and the trial judge’s decision
Before the trial judge the applicant contended that:
(i) he cannot have a fair trial, given the admissions that he made at the public examination and the publication of, and publicity that surrounded, those admissions; and
(j) it would be an abuse of process for the charges on the indictment to proceed to trial.
Only the first contention is now pursued.
The applicant submitted that there is a fundamental defect that goes to the root of his criminal trial — he was publicly examined; was compelled to give evidence; had no right to silence or privilege against self-incrimination at the public examination; he made substantial admissions both as to specific aspects of the conduct now charged and as to his dishonesty; those admissions were widely and prominently published as were the transcripts of his examination. He contended that the Court could not cure the defect by adopting particular empanelment procedures or by directions by the trial judge.
Moreover, he submitted, his public revelation of guilt was procured by IBAC and the unfair consequences of that cannot be remedied. In his submission, the pre-trial publicity means that there will always be a significant risk that the jury cannot be impartial and will know of inadmissible and prejudicial material such that there would be no protection against a miscarriage of justice.
The applicant contended that the prosecution has been assisted by publicity of his admissions during his public examination; that his right not to be compelled to testify against himself or to confess his guilt has been significantly undermined; and that he has been prejudiced in his defence of the charges against him. This is particularly so given that the admissions of guilt and dishonesty are from his own mouth rather than through his legal representative or speculation in the media.
The trial judge rejected each of the applicant’s contentions. The judge accepted that extensive pre-trial publicity may impact on the fair trial of an accused.[36] His Honour found, however, that the nature and extent of the pre-trial publicity in this case did not amount to a fundamental defect in the trial.[37] Moreover, his Honour was satisfied that the trial judge could take steps to ensure a fair trial. Those steps would include appropriate jury empanelment procedures to identify and excuse potential jurors with knowledge of the matter, and judicial directions not to undertake enquiries regarding the case or the accused persons and, in particular, to refrain from using the internet and to have regard only to the evidence in reaching their verdict.[38] In addition, the judge took into account that 23 months will have passed between the last publication and 17 July 2017 when empanelment of the jury for the trial is scheduled to take place.[39]
[36]Reasons [93].
[37]Ibid [96].
[38]Ibid [97].
[39]Ibid [98].
The judge distinguished Tuckiar v The King.[40] In that case, the accused was charged with the murder of a police officer in 1933. The trial took place in Darwin. After the jury returned a verdict of guilty, the accused’s counsel informed the judge in open court that the accused had confessed his guilt to him. That was published in the local press and was broadcast throughout the area from which any future jury pool would be drawn in the event a retrial were ordered. The High Court held (for other reasons) that the verdict should be set aside. The question then was whether a new trial should be ordered. The High Court held that it should not because it would be ‘practically impossible’ for any jury to put the confession out of their minds. A fair trial could not be held in Darwin and no other venue was practicable.
[40](1934) 52 CLR 335 (‘Tuckiar’).
In the decision under appeal before us, the judge observed that the circumstances in Tuckiar were remote from those in the present. Darwin in 1933 had a small population, a change of venue was not available and jury selection procedures would be futile in weeding out potential jurors who were unable to be, or appear impartial.[41] In addition, the judge noted that here the admissions by the applicant were obtained in a lawful public examination under a statutory regime that permitted his subsequent charging in relation to the matters examined.[42]
[41]Reasons [102].
[42]Ibid [104].
The judge accepted the Crown’s submission that the clear purpose of the IBAC Act would be frustrated if any coercive examination, of itself, was held to create such forensic constraints that a subsequent trial was oppressive.[43] The judge stated that the IBAC Act ‘provides for [IBAC] to control the conduct and procedure of coercive examinations and the lawful exercise of the statutory power to coercively examine the accused is neither unjustified nor oppressive.’[44] The judge distinguished the facts here, where the applicant was examined before he was charged, from circumstances where a charge was laid against a person who was later publicly and coercively examined.[45]
[43]Ibid [106].
[44]Ibid [107].
[45]Ibid [108].
The judge next considered the forensic constraints on the applicant in the criminal trial that arise as a result of the public examination. He stated:
If the accused might wish to conduct his defence of the forthcoming criminal proceedings differently to his explanation in the coercive examinations, the evidence that the accused gave in the examinations could impose a practical constraint on his legal representatives in suggesting a version of the facts different to that given by the accused in the examinations. Such practical constraint ought not to be regarded as the deprivation of a legitimate forensic choice.[46]
[46]Ibid [110].
The judge noted the applicant’s submission that other witnesses may be ‘infected’ because they had access to the transcripts of his examination.[47]
[47]Ibid [111].
The judge rejected the applicant’s arguments based on forensic disadvantage. He did so because only two witnesses at the committal said that they had read the transcript;[48] the applicant had not identified any forensic disadvantage with sufficient particularity that would enable the Court to consider what a judge could do to relieve against the unfair consequences of the fundamental defect;[49] and the Court could make rulings in relation to evidence, including rulings in exercise of the discretions to exclude relevant evidence in certain circumstances.[50]
[48]Ibid [113].
[49]Ibid [114]–[115].
[50]Ibid [116]–[121].
The judge dealt with the applicant’s submission about the conduct of IBAC in the following terms:
This submission is misconceived. The process being abused to which this contention must append is the process under the IBAC Act. The difficulty with the accused’s contention is that the IBAC Act permits IBAC to conduct a public coercive examination and to then lay charges concerning the subject matter of the examination. There is no abuse of process in that lawful exercise of statutory power. Moreover, the accused acknowledged, in the way the argument was put, that IBAC considered the risk of publicity prejudicing the prospect of a fair trial for the accused. To meet this difficulty, the accused alternatively submitted that by so acting in the circumstances, IBAC brought the administration of justice into disrepute. The short answer is that the alternative contention was never open because the administration of justice was yet to be engaged. It could not be brought into disrepute by abuse of its processes.[51]
[51]Ibid [127].
The judge stated that if, contrary to that finding, the conduct of the public examination constituted improper conduct, ‘IBAC’s conduct… was not sufficiently connected with the invocation of the court’s jurisdiction to permit characterisation of it as bringing the administration of justice into disrepute.’[52]
[52]Ibid [131].
The nature of the application for leave to appeal
The trial judge determined the stay application at the pre-trial stage. The interlocutory application for leave to appeal must be determined on the basis that the actual course of the evidence at trial, and the steps that may be taken to avoid unfair prejudice to the accused, are to some extent uncertain.
In turn, this Court must recognise the substantial powers of a trial judge to ensure a fair trial and direct jurors as to the proper approach to be adopted in assessing the evidence before them fairly and in accordance with law.
Whilst the criminal justice system assumes the efficacy of juries, that ‘does not involve the assumption that their decision-making is unaffected by matters of possible prejudice’.[53] In Glennon, Mason CJ and Toohey J recognised that ‘[t]he possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial’.[54] What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused.[55]
[53]Gilbert v The Queen (2000) 201 CLR 414, 420 [13] (Gleeson CJ and Gummow J).
[54]Glennon (1992) 173 CLR 592, 603. See also Murphy v The Queen (1989) 167 CLR 94, 99.
[55]Dupas (2010) 241 CLR 237, 248–9 [29] (citations in original).
This Court must also recognise that the ruling of the trial judge resulted from the weighing up of a series of questions of fact and degree. It is not sufficient for the applicant to postulate a possibility of unfairness. In Jago v District Court of New South Wales, Brennan J said:
Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes,[56] adverse revelations in a public inquiry,[57] absence of competent representation,[58] or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.[59]
[56]Murphy v The Queen (1989) 167 CLR 94.
[57]Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25.
[58]McInnis v The Queen (1979) 143 CLR 575; MacPherson v The Queen (1981) 147 CLR 512.
[59]Jago v District Court of New South Wales (1989) 168 CLR 23, 47 (citations in original).
A trial judge must thus weigh up not only the potential prejudice to the applicant from pre-trial publicity, but also the capacity of the judge to address such prejudice during the course of the trial. Again, as Brennan J said in Jago v District Court of New South Wales:
By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge’s responsibilities are heavy but they are not discharged by abdication of the court’s duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness. To take an obvious example, the administration of the criminal law in notorious cases could be brought to a halt by adverse media publicity. To admit a power to stay a case permanently for delay causing prejudice seems wrongly to undervalue the efficacy of the orders, rulings and directions of a trial judge in removing unfairness to an accused caused by delay or other misconduct by the prosecution.[60]
[60]Ibid 49.
The balancing exercise which a trial judge must undertake was described in Walton v Gardiner by Mason CJ, Deane and Dawson JJ:
As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.[61]
[61](1993) 177 CLR 378, 395–6 (emphasis added) (citation omitted).
In the present case, senior counsel for the applicant accepted that the applicant could not succeed unless this Court were persuaded that it was not reasonably open to the trial judge to come to the conclusion which he did.[62]
[62]See Jones (a pseudonym) v The Queen [2017] VSCA 111 [9].
The submissions on appeal
As the matter was put on appeal, the applicant’s argument involved a series of interrelated submissions.
First, it was submitted that newspaper headlines such as ‘PUBLIC TRANSPORT VICTORIA OFFICER BARRY WELLS ADMITS ACCEPTING CASH FROM CONTRACTS’ would inevitably have become embedded permanently in at least the subconscious memories of a significant proportion of potential jurors. Further, it was submitted, it was equally inevitable that the fact that the applicant had admitted fraudulent dishonesty before IBAC would be remembered by one or more jurors during the course of the trial and would influence their thinking.
Secondly, it was submitted that the applicant’s confessional statements remained readily accessible by internet search and that the freshness of the internet material was revived by the sentencing of the applicant’s co-offender, Mr Ooi, on 6 April 2017.
Thirdly, it was submitted that the nature and context of the applicant’s confessional statements were such that no effluxion of time was likely to dissipate community consciousness of the applicant’s public confessions of guilt.
Fourthly, it was submitted that the confessional statements were more prejudicial than those which were in issue in Tuckiar.[63]
[63](1934) 52 CLR 335.
Fifthly, it was submitted that the trial judge erred in regarding the publicity concerning the applicant as less likely to generate prejudice than the pre-trial publicity concerned with more notorious offenders such as Glennon, Dupas and Skaf[64].
[64]Skaf, Bilal v R; Skaf, Mohammed v R [2008] NSWCCA 303.
Sixthly, it was submitted that this was a case involving unique potential for prejudice because of the detailed and unmistakable confessional quality of the statements which were published.
Seventhly, it was submitted that the measures available to the trial judge to address potential prejudice to the applicant were not capable of guarding adequately against the probability that the subconscious memory of jurors would be adversely affected by the pre-trial publicity.
We will deal with each submission in turn.
First, we do not accept that the details of the applicant’s confessional statements are likely to have become fixed generally in the public mind. They did not relate to sensational or particularly noteworthy offending. On the other hand, we accept that the fundamental admission by the applicant, that he had acted dishonestly, was well publicised. We further accept that it is possible that some jurors may have a memory of this fact. As a result, the question arises whether the potential prejudice arising from this possibility can be adequately dealt with in the course of the trial process. We return to this question below.
Secondly, although confessional material may remain accessible upon the internet, the jury will be directed that they must not make their own investigation of matters in issue by way of internet searches and indeed that it is a criminal offence to do so.[65] We do not regard this consideration as adding materially to the first consideration.
[65]See Juries Act 2000 s 78A. See, eg, Martin v The Queen (2010) 28 VR 579; Benbrika v The Queen (2010) 29 VR 593.
Thirdly, in our view, the effluxion of time will have very substantially abated the impact of the publicity concerning the IBAC hearing upon the minds of potential jurors. His Honour was correct to recognise this fact. The lapse of 23 months between the last alleged publication of prejudicial material and the empanelment of the jury on 17 July 2017 does greatly reduce the risk that the publicity concerning the IBAC hearing will be in the jurors’ minds when the trial commences.
Fourthly, we do not accept that the circumstances of this case can be compared to the unique situation in Tuckiar.[66] First, the awareness amongst potential jurors of the prejudicial confessional statements is likely to be very materially less; and, secondly, the likelihood is materially less that no matter what directions the trial judge might give, a juror would regard the confessional statements as conclusive of guilt of the offences charged.
[66](1934) 52 CLR 335.
Fifthly, in our view, the trial judge was correct to regard the likelihood of continuing material prejudice as being much less than in the case of pre-trial publicity relating to notorious alleged offenders such as Glennon, Dupas and Skaf.
Sixthly, it is not sufficient for the applicant to persuade this Court that the facts of his case are unusual or indeed might be regarded as singular.
Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’.[67]
[67]Dupas (2010) 241 CLR 237, 250 [35] (citation omitted).
Seventhly, and most significantly, we are not persuaded that the trial judge was wrong to conclude that there were a series of steps open to him to guard against unfair prejudice arising from the pre-trial publicity. The most significant of these in the present case are set out below, although we stress that the appropriate response will be the subject of further submission and consideration during the course of the trial.
First, the judge may be expected to direct the jury that they must consider the evidence with respect to each of the charges in issue and be satisfied that the elements of each charge have been established beyond reasonable doubt. In other words, the jury will be directed to consider the evidence in a careful and detailed way, having regard to both the burden and standard of proof. Secondly, the jury will be instructed that they must act on the evidence placed before them and upon that evidence alone. Further, they will be instructed that to do otherwise would deny the applicant’s fundamental right to a fair trial, in which he and his counsel can respond to and address the case put against him. It is in no small part because trial judges explain to jurors why they must in fairness act on the evidence alone that this Court has confidence that the jury will abide by the judge’s directions.
In our view, the context in which the judge’s directions will fall to be applied also gives confidence that the jury will comply with them. The Crown opening which has been filed with the Court demonstrates that the Crown case is a detailed circumstantial case turning in large part upon documentary evidence. It is overwhelmingly likely that the trial process will supplant any pre-existing residual memories or adverse perceptions which jurors may have. The jury will be told that they must decide the case on the evidence and that evidence will be presented to them in a detailed sequential fashion which both explicitly and implicitly invites judgment on the basis of a matrix of facts and not upon any pre-existing prejudice.
In our view, the application for leave to appeal should be refused.
One further point should be made. Self-evidently, adverse publicity of the kind which followed the applicant’s public examination has very serious implications for the criminal justice system in a case where an examinee is subsequently charged. Not only is the publicity capable of working very great prejudice to the individual but it imposes additional burdens on the judge responsible for the conduct of the trial.
Doubtless this is one of the reasons why the IBAC Act provides that examinations should not be open to the public except in exceptional circumstances. Even then, it needs also to be established that it is in the public interest to hold a public examination and that this can be done ‘without causing unreasonable damage to a person’s reputation, safety or well-being’.[68]
[68]IBAC Act s 117(1).
For obvious reasons, it would not be appropriate for this Court to express a view on the decision of IBAC to examine the applicant publicly. Suffice it to say that what has occurred in this proceeding — both the seriousness of the issues ventilated before the judge and this Court, and the public time and expense which these applications have involved — should prompt the most careful consideration of the risks of public examination when that question next arises.[69]
[69]Lee v The Queen (2014) 253 CLR 455, 465–6 [28]; DPP (Cth) v Galloway (a pseudonym) [2017] VSCA 120 [59].
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