AW v Rayney [2011] HCATrans 86 (8 April 2011)

Last Updated: 11 April 2011

[2011] HCATrans 086

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P2 of 2011

B e t w e e n -

AW

Applicant

and

LLOYD PATRICK RAYNEY

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 8 APRIL 2011, AT 10.59 AM

Copyright in the High Court of Australia

MR G.T.W. TANNIN, SC: May it please the Court, I appear with my learned friend, MR H.D. LEITH, for the applicant. (instructed by State Solicitor (WA))

MR C.P. SHANAHAN, SC: May it please the Court, I appear on behalf of the respondent. (instructed by D.G. Price & Co)

HAYNE J: Yes. Now, we have your summons, Mr Shanahan, and we have, of course, read the material that has been filed by both sides in respect of that summons. Is there anything you wish to add to what is in those papers?

MR SHANAHAN: Two points, your Honour. The first one is that in the course of the two applications to cancel or vary the Court of Appeal’s orders there were orders made by Justice Buss, and the first one appears at application book page 231, line 10. Your Honours will see that effectively what Justice Buss did was to make a provisional non-publication order which covered the hearing of that application to cancel or vary. As the respondent understands it, that order remains in force, and indeed the reasons that were given on the subsequent day, 24 September 2010, by the Court of Appeal remain suppressed. There is a further order, your Honours, in respect of the second application to cancel or vary and that appears in much the same terms at page 272 of the application book, also at line 10.

HAYNE J: Well, then, why should we not treat the orders as eventually taken out and as appearing in the application book as the record of the extant orders?

MR SHANAHAN: No reason at all, your Honour, except that the point that I am making is my friends have filed a written outline that says that in the court below the matter was dealt with in open court, and they suggest at paragraph 2 that:

This Honourable Court should not restrict public access to its proceedings by means that the Court of Appeal did not itself adopt.

The point that the respondent makes is what is asked for in the summons of 1 April is simply the same protection that was afforded the respondent in the Court of Appeal below.

HAYNE J: Yes.

MR SHANAHAN: Your Honour, the only other matter that I wanted to raise was the emphasis that my friends put in their submissions on the fact that there is focus on internet publication. The only point that the

respondent makes in that regard is to say that any publication ultimately these days results in internet publication; that is simply the most powerful mechanism by which publication occurs, and the respondent’s concern is for any type of publication because that is ultimately where it leads. Your Honour, they are the matters that I wanted to raise.

HAYNE J: Yes, thank you. Mr Tannin, is there anything you wish to add?

MR TANNIN: Not to my written submissions.

HAYNE J: Yes, thank you.

On 6 August 2010, the Court of Appeal of the Supreme Court of Western Australia allowed an appeal to that court brought by AW, the applicant in this Court, against the respondent. The Court of Appeal ordered, among other things, that subject to certain limited exceptions:

No person or entity is to communicate or publish to any other person or entity any of the reasons for decision of this court in appeals –

in which the orders were made or in a related appeal –

until further order.

On 24 September 2010, the Court of Appeal varied these orders by extending the exceptions to the general prohibition, and further ordered that:

No person or entity is to communicate or publish to any other person or entity anything said or done at the hearing –

giving rise to that variation of the orders of 6 August. Again, the latter prohibition was subject to a limited exception. On 14 December 2010, the Court of Appeal further varied its orders of 6 August 2010 by further extending the exceptions to it. Again, subject to a limited exception, the court ordered that:

No person or entity is to communicate or publish to any other person or entity anything said or done at the hearing –

at which this further extension was ordered. On 24 December 2010, the Court of Appeal made yet further variations to the order of 6 August by introducing still further categories of exception, and it varied its order of 14 December 2010 in a manner that facilitated the making of the present application for special leave to appeal.

On 22 February 2011, the orders of 6 August 2010 as varied on 24 September, 14 December and 24 December 2010, were varied still further, and the orders made on 24 September 2010 and 14 December 2010 as varied on 24 December of that year were also varied still further.

The applicant now seeks special leave to appeal to this Court against the orders made on 10 December 2010 to contend that some additional exceptions should have been made to the general prohibition orders which have been described.

The respondent to the application for special leave to appeal rightly points out that disclosure in the course of the hearing of the application for special leave to appeal of matters that the orders of the Court of Appeal prohibit being disclosed would deprive the respondent of the benefit of the orders as they presently stand. Accordingly, the respondent applies for orders, in effect, that the application for special leave to appeal proceed in closed court and that this Court prohibit publication of anything that is said in the course of the hearing.

The applicant does not oppose the making of those orders, saying that it is not possible to predict whether oral submissions on behalf of the applicant may have to refer to matters which are the subject of the prohibition orders made by the Court of Appeal.

We are not persuaded that we should take the highly unusual step of conducting this Court’s business otherwise than in public. In particular, we should not do that simply to preserve the possibility that a party may wish to refer orally to some matter which is the subject of the prohibition orders. The courts and counsel are not unused to dealing with confidential information in the course of hearings in open court. In an application for special leave to appeal to this Court the parties’ arguments have been reduced to writing. There is presently no reason to think that argument of the matter cannot proceed satisfactorily without making any special order of the kind which the respondent now seeks.

It is important to emphasise, however, that counsel must conduct the application on the footing that the orders of the Court of Appeal remain in full force and effect. It is the responsibility of counsel to ensure that their oral submissions do not disclose material whose disclosure is forbidden by the orders of the Court of Appeal as they now stand. Accordingly, the summons is dismissed.

Mr Tannin, in light of that ruling, do you need time to adjust your submissions so that there is no disclosure in open court to any matter that is the subject of the prohibition orders?

MR TANNIN: I do not need time, your Honour, I think I can do that on my feet.

HAYNE J: Very well, but may I emphasise, lest there be the slightest doubt about it, Mr Tannin, it is your responsibility to ensure the result.

MR TANNIN: I understand that, thank you.

HAYNE J: Yes, Mr Tannin.

MR TANNIN: Your Honours, I rely on the written submissions in that regard, heavily. This case raises a question of real significance to the administration of justice; that is, in what circumstances may a superior appellate court, exercising its inherent powers, suppress a final judgment? The High Court of Australia has not ruled in any case that we have seen on giving guidance as to what test is to be applied in those circumstances. The contest in this case is between the fundamental principle of open justice and the respondent’s claim that publication of the Court of Appeal’s judgment would cause unfairness.

Now, the proceedings in the Court of Appeal are concluded. The court heard all of the evidence, it made its determinations, three judges have given reasoned final determinations, there has been no application for special leave and there was time given for that, the judgment is authoritative on a series of areas of law. Just for the sake of caution I can simply point out that those areas of law concern two particular Western Australian Acts and they are detailed in our written submissions at paragraph 12 at page 306, and particularly you will see a summary of the findings at paragraph 12, which I will not read out, and you will see the commentary at paragraph 13 on one of the areas of law referred to. I will not mention the names of the Acts, but there are important statements of principle within the judgment on those Acts which give rise to live issues daily in this State.

Now, the rules are that before a final judgment is rendered there may be a risk of prejudice in later proceedings which could conceivably come from the publication of incomplete parts of the proceedings, and we have noted in the footnotes at paragraphs 30 to 34 that suppression can be justified in those circumstances because publication can lead to a distorted impression. Final judgments, in our submission, are the accumulation and reconciliation of facts and points of view by an impartial and responsible authority. They are by definition accurate and free from distortion. They are the public record of justice, and in our submission, justice should be open.

Now, publication, in our submission, of the Court of Appeal’s judgment here would not be unfair. The judgment comes at the end of a very long process that was necessary to resolve the claims that he made. The claims were resolved against him. There may be – and we note some extreme cases where publication of a judgment, a final judgment, might be unfair, and we have cited the case of R v Garde-Wilson; that is No 4 in the bundle of indexed cases I have provided. That is the only suppressed final judgment in the inherent power that we could find. The circumstances there were quite exceptional. Publication would have clearly prejudiced the ongoing trial of one Carl Williams that was reaching its most delicate final stages, and so the prejudice was palpable. It was unavoidable, it could not be controlled. That is not this case; the elements of unavoidable and uncontrollable prejudice are absent.

Your Honours when assessing the concept of unfairness and prejudice the Court should bear in mind what many Judges of this Court have referred to, and that is a fundamental truth about jury trials. Jurors are conscientious and they are taken not to be stupid. If your Honours can go to the index of cases, particularly case No 2, John Fairfax v District Court, at page 96, at paragraphs 107 onwards, the judgment of his Honour Chief Justice Spigelman, as he then was, with various quotes from their Honours Chief Justice Gleeson in R v VPH and Justice McHugh in Gilbert v The Queen. The quotations that appear at paragraphs 108 and 109 I will allow you to read; they put pithily our point.

BELL J: Can I just inquire, Mr Tannin? According to the submissions, there was to be a disclosure committal hearing on 30 March 2011 and a date was expected to be set at that time for trial. Has that occurred?

MR TANNIN: There was a hearing; a trial date has not been set. There has been a dispute about whether there has been complete disclosure, so there is no trial date set as yet. Now, our submission is that, for the reasons we have indicated referencing VPH and Gilbert, it is a fair thing to assume that jurors will do as instructed. There is a big time lag between the publication of this judgment and any trial and there are no analogous circumstances between the judgment and the trial. For that reason we say the publication would not be unfair.

HAYNE J: Well, you say there is a long time lag; that presupposes that trial will not occur in the near future, does it?

MR TANNIN: I cannot say accurately what will occur, your Honour. From what I can see of the judgment in the bail application concerning the respondent, there was provisionally some time set aside later this year, but there are obviously issues of disclosure. It is a circumstantial evidence case. There will be questions dealing with the availability of things for testing forensically by the respondent, so things may occur to extend the time; I do not know.

The second major point we make is in relation to the question of suppression itself. It has to be necessary in the circumstances, and the Court of Appeal did not actually rely on any test of necessity. The respondent notes in their submissions that the Court of Appeal found that the order was necessary, then they cited judgment of his Honour Justice Buss at application book 288 where his Honour in that passage referred to “the necessity to guard against the” risk of prejudicing a fair trial. In the earlier judgment his Honour went no further than to say there was a public interest in a fair trial without mentioning necessity. That is at appeal book 261.

In our submission, the court has never actually described suppression as necessary. The court also misstated the idea of the principle of the test of necessity. They found in effect that limited publication was not necessary or desirable. That inverts the test. The test is whether suppression is necessary rather than publication. The respondent repeats that mistake in its submissions and asks why, for example, communication of the reasons to the Legal Practice Board would not be necessary.

Now, I am not going to go into the findings, but communication of reasons to professional regulatory bodies – we have set this out in the reply – or indeed, unrestricted communication to other judges in other proceedings, could never on any conception prejudice a trial. There are different kinds of suppression that operate by reason of these orders. There is the general prohibition against publication to the world and then there is the prohibition to the publication to regulatory bodies and a restricted prohibition to publication to other judges who might be facing similar issues, not in respect to this respondent but with others.

Now, courts, in our submission, considering suppression orders must do several things beyond making a bare finding of a likely or possible prejudice to negate the open justice principle. First, they must consider the well-established alternative to suppression. Second, consider as far as practicable the gravity of the potential prejudice. Third, consider the time over which suppression would operate.

BELL J: Mr Tannin, could I take this up with you? The respondent at paragraph 25 of its submissions at application book 319 refers to the circumstances which I infer led his Honour Justice Buss in the third of his judgments to speak of the necessity to guard against the potential prejudice of pre-trial publicity. There could be little doubt about the factual basis of that assertion, as I would understand it - that is, the assertion in paragraph 25 of the respondent’s submissions.

MR TANNIN: There is not, but I would add one thing, that the nature of the exchange of information, if I can put it so, that is described in that paragraph, was in both directions. I am speaking in code, your Honour, but I am conscious that – I hope that that conveys clearly what I understand.

BELL J: The matter I was going to take up with you, Mr Tannin, was the Court of Appeal of Western Australia might be peculiarly well suited, or well situated, to make the assessment that is reflected in his Honour’s finding of necessity in the circumstances that are outlined there and that would be so regardless of whether or not the information was coming, as it were, from both sides of the record, the information at paragraph 25.

MR TANNIN: Undoubtedly, that is correct, your Honour. Our submission is that the court did not actually explain anywhere in the judgments why the prejudice that they identified was so serious as to require suppression. The court basically adopted its earlier reasoning and did that in relation to the timetable for the telecommunications charges. Our submission is that the wilful murder charge really – all of the timing overtook that – and the timing is now such that a judgment which was delivered in December is going to be effectively suppressed for a very long time, there is no reason to do that.

Now, I have I think only to address a couple of issues that my friend raises. The first is it is put that this is an interlocutory order. Well, suppression orders are interlocutory. We respond to that by saying the reluctance of courts to disturb interlocutory orders is due to the risk of potentially fragmenting trials. Here, the matters before the Court of Appeal are finalised. The Court of Appeal’s approach itself, in our respectful submission, creates a risk of fragmentation. For example, if the trial judge were to make a determination that any aspect of this judgment were to be referred to witnesses, or for jurors, and I am not going to go into the circumstances of how that might - - -

HAYNE J: How could that be, Mr Tannin? How could that possibly be, that the judgment is put before a witness or a juror? Facts discussed in the judgment may or may not be proved, but how is the piece of paper going to be put before a witness?

MR TANNIN: Well, in terms of – I am just conscious that I do not want to articulate that other than by reference to our submissions. Can I take you to page 312 of the appeal book?

HAYNE J: Well, you develop it at paragraph 47 at 311 over to 312, do you not?

MR TANNIN: That is correct, and I do not want to say anything beyond that. Whether we are correct or not, the process by which that issue is to be resolved on the current restriction requires the parties in the criminal trial to go back to the Court of Appeal, reconvene to have the suppression order changed and that, with respect, is a form of fragmentation. That was the only point I make. The question is whether this is an appropriate vehicle. I have said at the outset this Court has not previously given guidance on the test to be applied in suppressing final judgments. There is, at most, persuasive authority in the Court. The question of principle arises directly, and I will not go into what the Court of Appeal’s judgments deal with but they are of importance, and there are no factual questions that are outstanding, and the matter can be dealt with. They are my submissions.

HAYNE J: Yes, thank you, Mr Tannin. We will not trouble you, Mr Shanahan.

Although no date has yet been fixed for trial of criminal charges pending against the respondent, a grant of special leave in this matter would likely delay the fixing of a trial date and the commencement of that trial. It is not shown in these circumstances to be in the interests of justice generally or in the particular case that there be a grant of special leave to appeal. In saying that, we need not and do not express any view about the correctness of the course taken by the Court of Appeal in this matter. Special leave to appeal is refused. The Court will adjourn to reconstitute.

MR SHANAHAN: I wonder, your Honour, if I might just interrupt?

HAYNE J: Just one moment. Yes, Mr Shanahan?

MR SHANAHAN: Has your Honour dealt with the question of costs?

HAYNE J: What do you say as to costs?

MR SHANAHAN: We seek an order for costs to follow the event, your Honour, that the respondent have the costs of this application, including the interlocutory application.

HAYNE J: Do you oppose that, Mr Tannin?

MR TANNIN: Not costs on the application for special leave, but we are puzzled why they would get costs on the interlocutory application.

HAYNE J: Mr Shanahan, you may take an order for costs of the application for leave, but the costs of the summons will lie where they fall.

MR SHANAHAN: I am obliged to your Honour.

HAYNE J: Yes. We will adjourn to reconstitute.

AT 11.26 AM THE MATTER WAS CONCLUDED