West Australian Newspapers Ltd & Anor v Hogan

[2010] HCATrans 191

[2010] HCATrans 191

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P3 of 2010

B e t w e e n -

WEST AUSTRALIAN NEWSPAPERS LTD

First Applicant

CHANNEL SEVEN PERTH PTY LTD

Second Applicant

and

PAMELA HOGAN MAGISTRATE OF THE MAGISTRATES COURT AT PERTH

Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON FRIDAY, 30 JULY 2010, AT 12.58 PM

Copyright in the High Court of Australia

CRENNAN J:   Perhaps before you announce your appearance, Mr Reynolds, I should just indicate it needs to be noted that the respondent, Pamela Hogan, filed a submitting appearance on 14 January 2010.

MR REYNOLDS:   I am grateful for that, your Honour.

MR G. O’L REYNOLDS, QC:   May it please the Court, I appear with my learned friend, MR R.J. ANDERSON for the applicants.  (instructed by Edwards Wallace Lawyers)

CRENNAN J:   Yes, Mr Reynolds.

MR REYNOLDS:   If the Court pleases, in my submission this case raises important questions relating to the principles of open justice.  Those questions arises in the context of the construction of rule 41 of the Magistrates Court Rules (WA) which are to be found conveniently at page 33 of the application book.  Your Honours of course know the terms of that provision.  That provision uses the expression “as is just”.  That formula is very similar to the formula used in the related provision of section 171(4) which is also on page 33 of the application book.  At the bottom of the page your Honours will see that the expression used there is “in the interests of justice”.  So there are two very broad formulae that are used there.

CRENNAN J:   The latter expression deriving from the common law.

MR REYNOLDS:   I would submit and, indeed, I would submit that this provision in section 171 and, for that matter, the provision in rule 41 should be read in light of the very, very well‑established principles at common law about open justice.  Your Honours will have seen that in relation to both of these provisions the courts below, both the Court of Appeal and the magistrate and, for that matter, two primary judges also have held that these two provisions create a very broad discretion indeed to a judicial officer.

If I may take your Honours briefly to pages 40 to 41 of the application book, at the bottom of page 40 your Honours will see it is stated there that the exceptions to the principle of open justice are “based on the balancing of competing public interests”.  Then at page 41 about line 25, paragraph 35:

I can now return to the issue of the ‘correct test’ under r 41.  There is no warrant for adding to or embellishing the statutory language.  The expression ‘as is just’ simply requires that regard be had to all relevant circumstances, both factual and legal.

Justice Owen took a similar view at application book pages 44 to 45.  He referred at the bottom of page 44 to the “principle of open justice”, noted that the exceptions to that principle were “narrowly confined”, but then at page 45 agreed with Justice McLure, who had said that this involved “a balancing of myriad factors”.  At the bottom of paragraph 51:

and the extent to which the underlying rationale for the open justice principle may be adversely affected.

At paragraph 52:

The magistrate embarked on the exercise of balancing the competing factors.

This is an articulation in relation to these two provisions of a very, very broad discretion, I would submit, with respect, hitherto unknown in the authorities and in marked distinction, if I may submit, to the approach taken by this Court recently in the Paul Hogan Case.

BELL J:   The provisions of section 50 of the Federal Court of Australia Act are notably different in that respect.

MR REYNOLDS:   At least arguably so.  They use, as your Honour is well aware –and this is at our authorities book page 3 – the expression “necessary in order to prevent prejudice”.  Your Honour is quite right, with respect, that there would no doubt be an argument, if leave were granted in this case, that that expression is a more narrow one than the one that arises here.  But importantly, the Paul Hogan Case is not determinative of the construction of these types of broad provisions which, as your Honours will have noted from our submissions, arise – this is at page 59 at about line 40 – all round the country in various forms that are similar to this.

BELL J:   Accepting that there may be force to aspects of the submissions that you advance concerning the principles, Mr Reynolds, if I may cut to the chase, in a circumstance where the order is made in relation to the suppression of publication of infant victims of a criminal offence it might be thought this is hardly the vehicle to agitate those larger issues.

MR REYNOLDS:   I submit it is a very good vehicle to agitate those issues, and can I indicate why?

BELL J:   Yes.

MR REYNOLDS:   The traditional view by the common law and the interpretation of these provisions has been to look at these provisions and say is the restriction necessary in the interests of justice?  That has generally been narrowly interpreted by reference to satisfied exceptions.  Those exceptions – this is my answer to your Honour’s question – do not include the particular circumstance with which this case deals.

CRENNAN J:   I think in Scott v Scott Viscount Haldane dealt with the three then well‑recognised exceptions which included wards of court.

MR REYNOLDS:   Quite.

CRENNAN J:   Not children generally, but suggesting anyway that proceedings involving children may be a special category in terms of the principle of open justice.

MR REYNOLDS:   Indeed.  Where I would submit this case is probably going to end up being argued if leave is granted is on whether that exception should be expanded to include the circumstances of this case because that parens patriae jurisdiction is part of the inherent jurisdiction which this Magistrates Court does not have.

BELL J:   But Mr Reynolds, are we conflating concepts here?  It is one thing to talk about the traditional categories of case in which the principles of open justice in terms of a court sitting to hear evidence in open may be departed from and another circumstance to look at statutory provisions which confer a discretion on a judge or magistrate not to either grant access to exhibits or, in the event that access is granted, to place limitations on them.  That seems to me to not, as it were, in terms of the result in this case, raise the larger questions that you speak of.

MR REYNOLDS:   Is your Honour, with respect, saying that the principles of open justice do not apply to the provision of exhibits to non‑parties?

BELL J:   I am saying, Mr Reynolds, that to refer to the principles of open justice as they are set out in cases dealing with the circumstances in which a court might hear evidence in camera may raise different considerations to the considerations that are raised in terms of the exercise of a discretion conferred by statute to place limitations on the publication of an exhibit.  That is the proposition I am taking up with you in terms of the result in this case.

MR REYNOLDS:   Thank you.  We submit that the authorities are, with respect, uniform on that point, and they are to treat these various aspects of the principles of open justice uniformly whether one is talking about any of the following:  one, closing the court; two, placing restrictions on publication; three, pseudonyms; four, access to evidence - whatever one talks about the cases treat the principle – those aspects – as manifestations of the one principle and where they have considered them have talked about the overriding principle of “necessary in the interests of justice” and then certain defined exceptions which do not include this particular case, which is talking about a situation which does not identify the children but simply has publication of the evidence of them in situ in relation to this particular offence.

CRENNAN J:   Just picking up and taking a little further Justice Bell’s point, I wanted to ask you about the Victims of Crime Act which you have helpfully provided at tab 9.  It contains a schedule of guidelines as to how victims should be treated - 216, Mr Reynolds, if you have that.

MR REYNOLDS:   Yes, I do.

CRENNAN J:   I was interested to try to understand how your client’s position of wishing to publish the videotape could be reconciled with points 1 and 5 of the guidelines in relation to that statute.

MR REYNOLDS:   First of all, they do not want to identify them, they only want to publish the tape in pixelated form so their faces are not represented.  That is the first thing.  The second thing is that we would submit in relation to the Victims of Crime Act that it is at least doubtful whether or not the magistrate has applied this provision.  It is referred to, not as part of the relevant considerations from paragraphs 17 through to 31, but rather more obliquely in the conclusion at paragraph 34 where it is simply said that:

Parliament has modified the principle of open justice with respect to victims via both the Victims of Crime Act –

and because the children are victims that –

authorises the court to apply the guidelines -

Now, it is one thing to say the court is authorised to apply them.  It is another thing to actually apply them in a particular way, vis‑à‑vis the formulations of principle in relation to open justice and in particular to the construction of rule 41.

CRENNAN J:   There is no error, is there, in paragraph 31 where it is said that:

Once published, modern technology enables any member of the public (whether well‑intentioned or not) to possess the images captured on the videotape.

MR REYNOLDS:   That may well be right, your Honour, but again this is in pixelated form.  That is an important part ‑ ‑ ‑

CRENNAN J:   Pixelated face.

MR REYNOLDS:   Yes, so that their faces are not seen.  We have not challenged the bit about identifying these children or publishing their names.  It is an important aspect of why we say leave should be granted.  Importantly, in relation to this Victims of Crime Act, your Honours will see – if I can take you to page 213, section 3(1), which talks about these guidelines and says that although:

Public officers and bodies are authorised to have regard to and apply the guidelines . . . they should do so to the extent that it is –

(a)      within or relevant to their functions to do so; and

(b)      practicable for them to do so.

I submit that that would not apply to a judicial officer determining a question of this kind, in short where there is an exercise of judicial power.  More importantly, subsection (3) on that page notes that:

Nothing in this Act provides . . . a legally enforceable right or entitlement, and a failure to apply this Act, or have regard to a guideline . . . does not –

in paragraph (b), provide any grounds for appeal or review.  It is a rather queer provision to be using to - if that is what has happened, and we submit it has not – for the magistrate to be using to alter the common law principles.  It is almost, if it were to be applied, like a bill of rights, those two guidelines, and the magistrate does not indicate how the principles are altered and, indeed, in the light of these guidelines, and the Court of Appeal does not frame its expression of principle by reference to these guidelines.  In this and a subsequent case the formulation of this broad discretion has been adopted not only in relation to rule 41 generally, but also in relation to section 171.  So I hope I have answered your Honour the presiding judge’s question.

CRENNAN J:   Yes.

MR REYNOLDS:   We submit that one can put to one side the question of the Victims of Crime Act.  I am conscious of the time.  Can I try and trot out very briefly some of the key points that are going to arise here?

BELL J:   Just before you do that, can I raise one issue?  It concerns whether – in your application for special leave to appeal – this is at application book 48, paragraph 2(h) – you take as a ground error:

in finding that it was in the ‘interests of justice’ to suppress the names of the children -

Is that pressed?

MR REYNOLDS:   I did not press that in the submissions.  I hope I have made that clear.

BELL J:   I see.

CRENNAN J:   You have narrowed this down to the condition in relation to republication.

MR REYNOLDS:   Yes, absolutely.  That is, as I said before, an important part of the reason why I say leave should be granted.  If one is talking simply about a pixelated form with no identification and no names, that is a different situation from the sort of situation that ‑ ‑ ‑

BELL J:   I suppose it is a situation that could stay on the internet and when the children are 15 or 16 and know that it is a picture of them could cause some distress.

MR REYNOLDS:   Well, possibly, but again we would need to come back to these fundamental principles and, if leave is granted, talk about the principle necessary in the administration of justice, the fact that it is not within one of the standard exceptions.  Your Honours will have seen that Justice Hodgson talked, in one of the cases on our list – I probably do not have time to go to it – about, first of all what is the meaning of “necessary in the administration of justice”?  There are two very split views on this.  This led to a grant of leave in the case of J v L&A Services, but that was discontinued because the case was settled.  The two views are basically these:  first of all, the strict view of what is necessary in the interests of justice articulated, among others, by Justice McHugh; the second is a more liberal test, on one view of things, as to whether consequences are unacceptable, so I would ‑ ‑ ‑

BELL J:   You have dealt with this to some extent in paragraph 25, I think.

MR REYNOLDS:   I have, but that is an issue that really – I would submit with the very greatest of respect this case in the Court of Appeal and below has been wrenched off its axis a bit.  Instead of the case being argued on this test of “necessary in the interests of justice” and whether that includes acceptable or unacceptable circumstances, which is Justice Mahoney’s test, Justice Hodgson’s test ‑ ‑ ‑

CRENNAN J:   Would it be an unacceptable circumstance if this videotape on the internet became of interest to child pornographers, for argument’s sake?

MR REYNOLDS:   There is nothing, as I understand it, on the tape that would arouse the prurient interest of pornographers.  There is nothing lurid about it.

CRENNAN J:   But there are legs tied up, are there not, Mr Reynolds?

MR REYNOLDS:   There are, but there is nothing, if I may put it this way, at all sexual about it.  Not only that - that assumes that that is the test.

CRENNAN J:   You have a very positive understanding of human nature, I think.

MR REYNOLDS:   Perhaps, your Honour.  That assumes that the test as to whether the circumstances are acceptable is the test.  The other view which I will be espousing on in any appeal is that it should be construed more narrowly.  The other interesting thing, I would submit as a matter of principle, is there is a big split between Justice Spigelman in one case and Justice Hodgson in another, both of the two judges agreeing on two things.  First of all, are these exceptions as defined, are they closed?  Justice Spigelman says they are.  So he would hold, I would submit, in this case ‑ ‑ ‑

CRENNAN J:   These are the Viscount Haldane exceptions?

MR REYNOLDS:   That is right.  It is not within the standard exceptions and the courts below did not suggest it was.  There are none that would apply in terms to this case.  The second interesting thing and important matter of principle which Justice Hodgson raises is by what criterion does the court look to create exceptions if exceptions can be created?  Justice Hodgson says new exceptions can be created – and he suggests that it is either by analogy with established exceptions or by reference to the principle necessary in the administration of justice.  We then go back to what does that mean?

BELL J:   Or by reference to the terms of the statutory derogation from the principle?

MR REYNOLDS:   Quite.  The Chief Justice in K‑Generation gives me a lead in here because he talks about the importance of reading these statutory

provisions very narrowly by reference to the fundamental nature of the right to report court proceedings.  That is another issue that arises here – the relevant principles of statutory construction.  Again, that has been picked up in other cases – in Raybos v Jones by Justice Kirby and also by the Victorian Court of Appeal also agreeing with the Chief Justice on that point.

So the relevant principles of construction; what is the meaning of necessary in the interests of justice; whether exceptions can be added; how one determines whether further exceptions are included in the principle; whether one can have a very broad discretion of this kind, they are the issues which I submit are raised.  Can I say this?  These issues have been around for some time and they have not yet been resolved.  They are going to have to be resolved unless – your Honours may have seen the paper today.  There is a suggestion of a uniform statute possibly coming in here.  But if that does not arise then these issues are going to have to be determined.  This case provides a very good vehicle for determining (a) what is the general law on these points; and, (b) how does that interlock with principles of statutory construction relating to fairly broad provisions of this kind.  I think I have said all that I can say.

CRENNAN J:   Thank you, Mr Reynolds.

Whilst important issues of principle have been referred to in the course of argument, we are of the view that there are insufficient reasons to doubt the correctness of the results reached in the courts below, such as to warrant a grant of special leave to appeal.  Accordingly, special leave to appeal is refused.

MR REYNOLDS:   If the Court pleases.

AT 1.19 PM THE MATTER WAS CONCLUDED