No.
1449
of
2001
- In this ruling, I am setting out my reasons for doing two
things. The first is that I am revoking a suppression order earlier made
by
me. The second is that I am instead requesting the media not to publish that
which the order was calculated to suppress. Making
a request not to publish
instead of continuing the order will have certain consequences. The most
obvious consequence is that, whereas
a publisher who publishes when facing an
order not to publish will potentially suffer sanctions, a publisher facing a
request not
to publish will not.
- On 8 November 2001, I made an order in these proceedings that
there be no publication in any report of these proceedings of first,
particulars likely to lead to the identification of the deceased or of
secondly, particulars of an aspect of the work of Robert Pomeroy.
I will not
set out now what that "work aspect" was, because of my concern not to have that
work aspect more widely known. I made
an initial order only after a brief
discussion with the prosecutor and defence counsel. I confirmed the order
after hearing submissions
from a representative for the media. I later
arranged to hear further argument from counsel. I indicated then that I would
provide
detailed reasons for my final ruling. These reasons are being handed
down immediately prior to my imposing sentence on Robert
Pomeroy.
- The order that I am now revoking was made during the hearing of
a pre-sentence plea. On 1 November 2001, Robert Pomeroy was arraigned
before
me on a charge of manslaughter. He was charged that on 26 August 2000 he
killed a 33 year old woman from East Doncaster.
He pleaded guilty. The
hearing of the plea was adjourned to 8 November 2001. On both days, Mr
Morgan-Payler QC appeared for the
Crown. Mr Brustman of counsel appeared for
Robert Pomeroy. Robert Pomeroy was a gigolo employed by an escort agency. The
deceased
was a client. On 26 August 2000, the two engaged in intense
drug-affected sexual activity at her home. She asked to have her enjoyment
heightened by his applying pressure autoerotically to her neck. The pressure
he applied was too great for too long and she was asphyxiated.
- When the hearing of the plea started, Mr Morgan-Payler sought a
order under s.18 of the Supreme Court Act 1986 suppressing publication of the
identity of the deceased. The application was made on the basis of the need to
avoid further undue
embarrassment to members of the family of the deceased. At
the same time, Mr Brustman sought an order suppressing publication of
the
aspect of Robert Pomeroy's work aspect that I have opted not to specify here.
The application was made on the basis that publication
of the aspect had the
potential to lead to Mr Pomeroy suffering injury in prison. At the time that
the applications were made, I
indicated that I had two reactions. The first
was an almost automatic inclination not to make a suppression order because of
"the
principle of open justice" articulated most memorably in Scott v Scott
[1913] AC 417. The second was a disposition to see that both
applications, albeit for quite different reasons, had merit. I saw that there
was
an experienced court reporter, Mr Norrie Ross, in court at that time. I
indicated to counsel before me, and to Mr Ross, that I was
disposed to follow a
particular course. It was to make the orders sought on a temporary basis, but
to permit Mr Ross the opportunity
to seek instructions to have the
appropriateness of making the orders argued later in the day.
- At 2.15 p.m. that day, Mr Justin Quill, a solicitor from Corrs
Chambers Westgarth, representing The Herald and Weekly Times Ltd,
appeared
before me. No issue was raised as to his client having standing. Mr Quill
presented briefly but comprehensively the case
for making no order suppressing
the identity of the deceased. That included his drawing my attention to a
number of authorities.
As to the other part of the order, relating to the work
aspect of Robert Pomeroy, he confined his argument to the matter of principle
involved. In short, he submitted that only in wholly exceptional circumstances
was it appropriate to depart from the open justice
principle. After hearing
from Mr Quill, and further from Mr Morgan-Payler, I ruled that I would continue
the order.
- On 11 December, at my request, Mr Morgan-Payler and Mr Brustman
again appeared before me. On that day, The Herald and Weekly Times
was
represented by Mr W Houghton QC and Mr D Bennett of counsel. I asked on that
occasion that argument be focused on matters of
particular concern to me. I
indicated that I was familiar with many cases in which the open justice
principle had been analysed.
I said that I wanted to hear argument directed to
the application of the Supreme Court Act suppression order provisions, and to
the significance in that context of recent legislation designed to enhance
significantly the
position of, and to increase the protection given to, victims
of crime.
- The open justice principle has been applied in many cases and
in many differing situations. It requires that courts must be open,
and that
what is said and done in the courts can be published with only such
restrictions as are necessary in the interests of justice.
The media is
vigilant to see that it continues to be applied. But the courts, and
particularly superior courts, are also vigilant
to see that it continues to be
applied, because the operation of the principle is an essential attribute of a
court. The leading
authority on the scope of, and the reasons for, the
principle is Scott v Scott [1913] AC 417. The application of the
principle has often been endorsed as in Dickason v Dickason (1913) CLR
50, and Russell v Russell (1976) 134 CLR 495. This is not the place for
a detailed exposition on the principle, or on the common law and statutory
exceptions to the principle,
which are considerable. A recent comprehensive
review of the position is to be found in Australian Media Law by Butler
and Rodrick.
- Depending on the circumstances, there can often be issues as to
the standing of an arm of the media to challenge what has been or
is about to
be done, and as to the power of the court or tribunal to do what has been or is
about to be done. Before me, there was
no issue as to standing. Further,
there was no issue as to my having the power to make a suppression order,
provided I acted within
Sections 18 and 19 of the Supreme Court Act. During
discussion, reference was made to the possibility of the use of inherent power.
The matter was not pressed.
- Because legislative provisions derogate from open justice, they
must be strictly construed. Raybos Australia Pty Ltd v Jones (1985) 2
NSWLR 47 at 55 by Kirby P. The relevant parts of Sections 18 and 19 are as
follows:
18 (1) The Court may in the circumstances mentioned in section
19 -
...
(c) make an order prohibiting the publication of a report of the whole or any
part of a proceeding or of any information derived
from a proceeding ...
19 The court may make an order under Section 18 if in its opinion it is
necessary to do so in order not to -
...
(b) prejudice the administration of justice; or
(c) endanger the physical safety of any person; or
(d) offend public decency or morality: or
(e) cause undue distress or embarrassment to the complainant in a proceeding
that relates to a charge or an offence under (various
sections) of the Crime
Act ... or for an attempt to commit such an offence ...
(f) cause undue distress or embarrassment to a witness under examination in a
proceeding of any kind relating to a charge for an
offence where the conduct
constituting the offence consists wholly or partly of taking part, or
attempting to take part, in an act
of sexual penetration as defined in section
35 of the Crimes Act 1958
- I was referred to two cases where Sections 18 and 19 had been
adverted to. They were: AAA v BBB 26 August 1994 Ashley J, unreported,
and Nixon v Random House Australia Pty Ltd and another [2000] VSC 405; [2000] 2 VR 523.
In neither case was a suppression order made. In AAA, paragraph 19(b)
was referred to without significant analysis. In Nixon, Hedigan J was
not prepared to stretch the meaning of paragraph 19(e). In The Herald and
Weekly Times Ltd v Jones, 25 March 1992, Nathan J was concerned with s. 126
of the Magistrates' Court Act, and specifically paragraphs (b) and (c). Those
provisions are substantially the same as paragraphs (b) and (c) of s.19 of the
Supreme Court Act. He posited that because of the requirement of necessity,
assertion, belief or notoriety as to the potential for endangerment were
not
adequate, and that there had to be cogent and admissible evidence of necessity
before an order would be made to protect the physical
integrity of an accused.
With due respect, I feel that puts the bar impossibly high.
- There can be no doubt that because of the word "necessary" in
Section 19, the bar must be very high. It will be reached only in wholly
exceptional circumstances. The requirement of necessity is an integral
part of
other exceptions to the open justice principle. In John Fairfax & Sons
Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, McHugh J said:
"The principle of open justice ... requires that nothing should be done to
discourage the making of fair and accurate
reports of what occurs in the
courtroom. Accordingly an order of a court prohibiting the publication of
evidence is only valid if
it is really necessary to secure the proper
administration of justice in proceedings before it." . In J v L & A
Services Pty Ltd (No. 2) (1995) 2 Qd. R 10, Fitzgerald P and Lee J said:
"No unnecessary restriction upon public access or publicity in respect of court
proceedings is permissible."
In Nationwide News v District Court of New
South Wales and others (1996) 40 NSWLR 486 at 495, Mahoney P expressed
concern as to the claimed benefits of the general rule that publication be not
restricted, but accepted
that there was no exception based upon the harm, hurt
and distress that may be caused.
- I turn first to the issue of whether it would be appropriate
to continue the suppression order as to the work aspect of Robert Pomeroy.
Mr
Brustman put to me that if there was publicity given to the aspect of Robert
Pomeroy's work that he sought to have suppressed,
there was a real danger of
Robert Pomeroy suffering injury in prison. In raising the matter at all, he
noted that he had had to
consider a troubling forensic dilemma. The "work
aspect" was a matter of relative insignificance in the scheme of the police
investigations.
It was a remote eventuality that a reporter would cull through
the detail of the depositions, note the brief reference to the aspect,
and
consider it newsworthy. Mr Brustman indicated that it was because he assessed
as unduly high the risk of danger to Robert Pomeroy
in prison, if the remote
eventuality eventuated, that he had raised it with me.
- I understand Mr Brustman's concern as to the danger of injury
to Robert Pomeroy in prison if the "work aspect" is the subject of
publicity.
Yet I am conscious of the strength of the comment by Nathan J in , The
Herald and Weekly Times Ltd v Jones that the court should act on evidence.
How is it possible to prove endangerment? I am mindful of the analogous
situation of proving
that there is a danger that a threat to kill might be
carried out. Such threats are commonly made. Too often, it is only the
carrying
out of the threat by a killing, or attempted killing, that proves that
there was a real danger in the particular case. My assessment
is that the
danger of physical injury to Robert Pomeroy if the work aspect is publicised is
more than a remote possibility. That
assessment is not based on evidence
referable to Robert Pomeroy. It is based in part on my experience of visiting
prisons regularly
for over eleven years on Parole Board duties. It is based in
part on reading research as to the incidence of rape in prison. However,
I am
troubled about accepting that there is a clear risk of significant extra
danger, given the inevitability of it being publicised
further, as already been
publicised, that Robert Pomeroy has worked as a gigolo. Given the required
height of the "necessity" bar,
and not without reservations, I have concluded
that I cannot justify leaving the order in place.
- I turn to the issue as to the suppression of the identity of
the deceased. On November 8, Mr Morgan-Payler argued that paragraphs
(d) and
(f) of Section 19 could be seen to apply. On December 10, he effectively
accepted that they could not apply. There is no doubt that many of the
activities engaged in by Robert Pomeroy and the deceased can be characterised
as indicating gross depravity. But the suppression
order is not sought as to
the activities, only as to the identity of a participant to save embarrassment
to her family. Paragraph
(d) could not be seen to apply. As to paragraph (f),
it is clearly designed to complement other provisions aimed at protecting
witnesses
in trials of sexual offences. The words of the paragraph cannot be
stretched to apply in these circumstances.
- I turn finally to what troubled me when I earlier made the
order on a temporary basis. It was the potential application of paragraph
(b)
in the light of recent legislation aimed at protecting the victims of crime.
In the last ten years, there has been a significant
change in the recognition
of the position of victims of crime, in a formal legislative way. My emphasis
is on the last few words.
The courts have long treated the position of victims
as a consideration in sentencing. See Dixon-Jenkins (1991) 55 A Crim R
308, and P [1992] FCA 626; (1992) 64 A Crim R 381 at 385. The main legislative change
has been, as from 1994, as to the receipt of victim impact statements. See
Sentencing Act 1991, Sections 95A to 95E. There have been other legislative
changes, including as to the role of the Director (and Office) of Public
Prosecutions relative to victims. See Sections 24 and 36 of the Public
Prosecutions Act 1994.
- The response of the courts to the legislative changes has been
spelt out in cases such as Miller [1995] VicRp 60; [1995] 2 VR 348 and Dowlan
[1998] 1 VR 123. The reception of victim impact statements is to be approached
with a degree of flexibility, and not confined by the sorts of procedural
rules
applicable to the treatment of witness statements in commercial cases. I can
outline what my practice is. I understand the
general practice is
substantially the same. In that regard, I have noted what was said by Coldrey
J in Mileham (1994) 83 A Crim R 449. A victim impact statement is
received and marked as an exhibit. There is a right to cross-examine the maker
of a statement. I am
unaware of any instance where the right has been
exercised. Counsel for the prisoner, given the opportunity to speak to the
contents,
usually declines to do so or speaks briefly inviting inadmissible
material to be ignored. The contents of the statements are not
revealed in
court. Reference to the contents, and sometimes extensive reference, may be
made by the sentencing judge at the time
of sentencing.
- One of the results of the adoption of the above practice is
that the media is effectively precluded from having any information
as to the
contents of any statement beyond what is said when the statement is tendered
and when sentence is handed down. How does
one reconcile such a practice which
shuts out the media with the principle of open justice? What justifies the
effective suppression
of victim impact statements? If a victim impact
statement is an exhibit, why is it not treated like any other exhibit? That
leads
into the question of how exhibits are to be treated. As to that
question, there appears to be little authority. Charles JA in
The Herald
and Weekly Times Ltd v Magistrates' Court [2000] VSCA 242; [2000] 2 VR 346 at paras 22 to 25
adverted to the question. He referred to American authority to the effect that
a decision as to whether to permit
access to exhibits was to be left to the
"sound discretion of the trial court". He also noted that Lawton J in R v
Waterfield (1975) 1 WLR 711 at 714 had stated that the members of the
public in court had no right to claim to be allowed to look at exhibits.
Charles JA did
not have to come to any conclusion on the issue as to the status
of exhibits, as that issue did not ultimately have to be
determined.
- Mr Houghton submitted that all victim impact statements should
be treated as coming within the open justice principle, and should
be provided
to the media. Mr Morgan-Payler submitted that this was not a proper occasion
to make a ruling on the issue of whether
victim impact statements ought to be
made public. He indicated that this was an area where the position of the
Director of Public
Prosecutions would need to be clarified. I have no doubt
that I should not make a ruling on this issue in the current circumstances.
But I will give the reasons why I propose to continue my present practice,
unless and until legislation or authority requires me
to do
otherwise.
- It seems to me that there are classes of exhibits, and that
different classes merit different treatment. My practice is to have
any media
requests to see any exhibit channelled to me through my associate. That is in
line with other media requests, such as
to use a tape recorder in court, or to
have access to transcript of the proceedings or of a police interview. As was
noted by Tadgell
J in Stefanovski v Murphy [1996] VicRp 78; [1996] 2 VR 442, at 443,
procedural control as to matters like permitting the use of a tape recorder
should be undertaken in a spirit of co-operation
by all those for whose benefit
it is exercisable. The desirability of the provision of reasonable access to
materials needed for
the provision of a fair and accurate report was also
supported by Charles JA in The Herald and Weekly Times Ltd v Magistrates'
Court. Many if not most exhibits are read or partly read or shown very
openly in court. As to those, the expectation of the media can be
that the
request to see the exhibit will be granted. As to other exhibits, the
expectation would have to be that the request would
not be granted. That is
likely to be so with exhibits tendered on a voir dire, and exhibits treated as
inaccessible for reasons
of high confidentiality. A document may come before
the court subject to an implied undertaking that it will not be used for a
collateral
purpose. See Riddick v Thames Board Mills Ltd. [1977] QB 881
at 896. Victim impact statements generally reveal considerable trauma
resulting from a crime. There is an obvious potential in
many cases for the
trauma to be increased if publicity is given to the detail of the trauma.
Considerations of natural justice would
have to mean that I would have to give
the maker of a statement the opportunity to seek suppression of the statement
or parts thereof
to avoid publicity, given the potential for further distress
and embarrassment. I would note that, in this case, one of the victim
impact
statements contains matters directed specifically to the additional adverse
impact of media publicity on one family member.
- The name of the deceased has already been published, and on
more than one occasion. Placed before me was evidence of reports published
in
The Age of August 28, 29 and 30, 2000 and in the Herald-Sun of August 29 and
30. In those reports the deceased was identified,
but there was no reference
made to the death occurring during intense sexual activity. The activity and
the identity were given in
a report in The Herald-Sun on 11 April 2001. That
is a consideration that seems to me to operate for and against restraining
further
publicity. On the one hand, real damage having been done in the
earlier rounds of publicity, can it really matter that there is
a further
round? On the other hand, repeating the publicity known to have caused damage
will surely cause further damage that could
be avoided, or at least reduced, by
not including the name of the deceased.
- The setting by common law and Supreme Court Act of the bar at
being "necessary" is, for understandable reasons, a high one. Having carefully
reviewed the authorities, I am satisfied
that the order that I earlier made was
not necessary and that it should not continue. I revoke it. I nevertheless
make a request
to the media that careful consideration be given to whether
there needs to be published that which had been the subject of the order.
By
the media, I mean the court reporter, the sub-editor, the editor or the
electronic media's equivalents. Those who make the calls
as to what news value
a story has, given the competing claims to space on a particular day. Those
who make the calls as to what
space is available, and what aspects are
published and what are cut. Those who decide whether it does make a difference
if the story
says the death was of a woman, 21 from Kew as against of Mary
Smith, 21 of Kew. In J v L & A Services Pty Ltd (No. 2) (1995) 2
Qd. R 10, Fitzgerald P and Lee J were not prepared to order suppression. But
they spoke of their expectation that the media would exhibit
a sensitive
consciousness to family interests and take care to minimise any harm from
publicity. In Nixon v Random House Australia Pty Ltd [2000] VSC 405; [2000] 2 VR 523,
Hedigan J, having declined to make a suppression order, expressed a hope that
the precepts of fairness, accuracy and good taste
would be observed by the
media. In making my request to the media in this case, I am following their
lead.
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