DPP v Williams [2004] VSC 209

Supreme Court of Victoria|2004-06-01|Before: Cummins J

Courts - Administration of justice - Prohibition of publication of material said to prejudice fair trial - Criminal proceedings - Jury trials - Sections 18 and 19 Supreme Court Act 1986 - Inherent power of court to secure fair trial - Considerations applicable - Application for prohibition of publication refused.

The power under s. 18(1)(c) is that the Court in circumstances stated in s.19, to which I shall shortly come, may

".... 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."

The ground which would activate such power is contained in s.19(b) which provides that the Court may make an order under s.18

"if in its opinion it is necessary to do so in order not to ... prejudice the administration of justice."

Mr Morgan-Payler submitted that as the relevant persons, Mr Carl Antony Williams, Mr George Leslie Williams and Ms Roberta Williams, as well as three other persons not relevant primarily to this proceeding, have been committed for trial the category in s.18(1)(c) of "information derived from a proceeding" is activated. I am not persuaded that that is the true ground for this proceeding. It is a technical argument and, in my view, the substantive basis for the application is the inherent power of this Court to secure its own processes including a fair trial.

The authorities, which I shall come to in a moment, clearly establish that the Court does have plenary power, as indeed it should have, to secure the administration of justice, including securing the fair trial of persons: fairness being relevant of course to the accused persons, relevant to the prosecution, relevant to the trial process itself and, most fundamentally of all, relevant to the community. Essentially the test, to which again I shall shortly come, is whether there is a real risk of serious interference with the administration of justice.

I announced yesterday, because I considered the parties were entitled to know at the conclusion of submissions what was the result, that I refused the Orders sought, essentially because I do not consider there is a real risk of serious interference with the administration of justice. I now give my reasons more fully.

Mr Carl Williams is charged with trafficking in a commercial quantity of amphetamine on 20 November 1999, possession of amphetamine on that date, and possession of substances for manufacturing a drug of dependence on that date. His father, Mr George Williams, is charged with the same offences. The committal of those matters was on 20 July 2001 and the trial in this Court is imminent, being listed to commence on 5 July 2004.

In a separate matter, Mr Carl Williams is charged with trafficking in ecstasy between 23 March 2001 and 19 May 2001, possession of ecstasy on 19 May 2001 and conspiring to traffic ecstasy between 12 April 2001 and 19 May 2001. His wife, Ms Roberta Williams, is charged with trafficking ecstasy between 23 March 2001 and 19 May 2001, conspiracy to traffic ecstasy between 3 May 2001 and 19 May 2001, possessing proceeds of crime and possession of ecstasy on 19 May 2001. The committal in these matters occurred on 20 February 2002, and the trial is listed in this Court to commence on 26 July 2004. It is proposed that the trials be heard sequentially.

Essentially what Mr Morgan-Payler sought were Orders preventing any further publicity which might prejudice a fair trial of those matters between now and the respective trial dates.

Initially, Mr Morgan-Payler sought Orders that "No material be published in the print or electronic media that might imply that the accused, Carl Anton Williams,(1), is involved in drug trafficking, (2), is in receipt of unexplained wealth or income, (3), associates with criminals, (4) has committed other offences."

After discussion last Friday when the matter came before me as an urgent matter, Mr Morgan-Payler narrowed the Orders sought, sensibly in my view, to an application that the media not publish in print or electronically any material

"which alleges that Mr Carl Williams, Mr George Williams or Ms Roberta Williams (a) is involved in drug trafficking, (b) is in receipt of unexplained wealth or income, (c) associates with criminals, (d) has committed other offences"

and further that the media not publish in print or electronically any material

"that could identify directly or indirectly Mr Carl Williams, Mr George Williams or Ms Roberta Williams as (a) being involved in drug trafficking, (b) being in receipt of unexplained wealth or income, (c) associated with criminals, (d) having committed other offences."

I made temporary Orders at about noon on Friday, 28 May to operate until 5 p.m. on Monday, 31 May 2004, essentially to hold the position until I had had the opportunity over the weekend of reading the substantial amount of exhibited material which was placed before me. The matter had come before me on Friday without notice because of its urgency, and all the material was fresh to me. I might add that I am not the judge allocated to hear the two trials. That is Justice Kellam.

The application was eloquently supported by Mr Faris, Q.C. with Mr Grant, for Mr Carl Williams, and Mr Grant for Mr George Williams. Mrs Roberta Williams was not separately represented, but she is the wife of Mr Carl Williams and was notionally included in the representation, although not formally so. Mr Gilbertson, for numerous media organisations, opposed the Orders sought.

As I say, I consider that the true basis for the seeking of the Orders is the inherent power of the Court to protect its own processes and that the test is the real risk of serious interference with the administration of justice.

The authorities giving analogous guidance to this matter can be found in part in the contempt authorities and in part in authorities on the civil side, neither of which are precisely analogous to the juristic basis of the present application but which, as I say, shed light upon the true principles involved. Mason C.J. in Hinch v. Attorney-General for the State of Victoria[1], a contempt case and referring to another contempt case (Re Truth and Sportsman which I cite below) stated that in relation to the law of contempt of court a balance needs to be struck between two competing public interests which he identified as

"... one, the need to protect the integrity of the administration of justice, and the other, the protection of freedom of expression, especially when that freedom of expression is exercised in relation to a topic which is, or should be, of concern to the public or a section of the public."

In R v. Glennon[2], Brennan J (as then he was) quoted with approval a passage by Jordan CJ (which was also quoted with approval by Lord Reid in Attorney-General v. Times Newspapers Ltd[3] where Lord Reid said: "I know of no better statement of the law than that contained in the judgment of Jordan C.J.") namely:

"It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant".[4]

In Ex parte Telegraph PLC and other appeals[5], Lord Taylor CJ, in giving the judgment of the Court, stated:

"In determining whether publication of matter would cause a substantial risk of prejudice to a future trial, a court should credit the jury with the will and ability to abide by the judge's direction to decide the case only on the evidence before them. The court should also bear in mind that the staying power and detail of publicity, even in cases of notoriety, are limited and that the nature of a trial is to focus the jury's minds on the evidence put before them rather than on matters outside the courtroom ..."

Relevant authority there was cited. A like principle was stated in Friedrich v Herald Weekly Times, Ltd & Anor[6] where the Court said:

"Thirdly, as has been said before, it is easy but wrong to underestimate the intelligence of a jury in a trial: cf National Mutual Life Association of Australasia Ltd and G.T.V. Corporation, Pty Ltd [1989] VicRp 66; (1989) V.R. 747 at 762."

"We think that the intelligence of Australian jurors and witnesses is frequently underrated, especially by counsel in arguments on appeal".

Essentially, the relevant principles come to this. First, that the Court has power to protect its own processes, primarily that of a fair trial and to ensure that accused persons are given a fair trial and that they are seen to be given a fair trial. That is, as I have said, in the interests of accused persons, in the interests of the prosecution, and in the interests of the court process and in the interests of the public at large. That is a fundamental and powerful function of court process, which will be activated if there is a real risk of serious interference with the administration of justice.

Second, the Court will not interfere with matters of legitimate public concern or legitimate public discussion, and the Court will not stifle that public discussion, and will not muzzle the media in the fulfilment of that public discussion, subject to the avoidance of the risk of serious interference with the administration of justice.

Third, long experience in the law, and my limited experience in the law, confirms that juries are robust and are responsible. Of course, one must not ask psychological impossibilities of juries, and one must always be astute to prevent prejudice creeping into the jury trial from extraneous sources. But juries, time and again, come to court in cases of great notoriety and publicity and demonstrate by their evident application of mind that they act according to their oath or affirmation to give a true verdict according to the evidence led before them in Court. Juries also see the effort which all counsel put into cases, they see the attention to evidence, they see the testing of evidence and often the destruction of apparently persuasive evidence by cross-examination, they hear the directions of the trial judge and they are in law bound by them. Juries by direction, observation and osmosis assume a proper and responsible role as the judges of the facts, judging the case solely on the evidence led in court.

I do not propose to recite in this judgment the numerous matters of fact which are set forth in the affidavit material before me. The material is on the Court file. The primary affidavit is the affidavit of the learned instructing solicitor, Mr H.S. Thomas, for the Director, sworn on 27 May 2004, with exhibits thereto. There is a further affidavit of his sworn 31 May 2004. The material exhibited reveals a theme of expression in various publications such as "accused drug dealer", "accused drug boss", "prominent figure in the underworld killings probe", and like expressions in relation to Mr Carl Williams. Categorical references such as "alleged criminals such as Mr Williams" and "accused criminals such as Mr Williams" appear. Although not specifically relied upon by counsel but included in the exhibited material is reference to Mr Carl Williams (and another accused person not the subject of these proceedings) being declared (presumably pursuant to s.20(1) Summary Offences Act 1966) for purposes of not entering certain licensed premises as "of notoriously bad character". There are numerous photographs of Mr Carl Williams. There is much attention in the media to the possession of apparently substantial wealth by Mr Williams of an apparently unexplained sort. In support also of the application are two affidavits filed by Mr Magazis, learned instructing solicitor to Mr Faris, being of 28 May and 31 May 2004, which exhibit substantial material and comprehend an extensive period of time. I have examined all the material exhibited before me. In assessing the material the matters to be taken into account are its nature, quantity, extensiveness, cumulation and timing.

A number of things are evident from the material. The first is that plainly there is significant media interest and prurient and public interest in the persons the subject of those reports and of these proceedings. Second, the reports are in the context of significant public issues as to serious drug trafficking in this State. Third, the reports are in the context of serious community concern and interest as to so-called underworld killings and as to police corruption, all of which must be viewed holistically and not merely segmentally and I do so.

However having considered all of the factual material, I am entirely unsatisfied that a real risk of serious interference with the administration of justice, namely the fair trial of the two trials about to be heard, has been made out. It is plain, of course, unlike for example the Friedrich matter, the trials are imminent and not some distance down the track, a factor which is often relied upon by courts in relation to controversy dying down over time. That limiting factor does not apply in this case. However, the material, in my view, is not such as to render likely that a fair trial of the accused persons, or the appearance of a fair trial of the accused persons, is at risk. As I have said, the experience of the Courts is that juries are both responsible and robust and are well able to judge cases solely on the evidence led in court. There is nothing in the exhibited material, in my view, of such a character or substance as to render that jury function likely to be overborne or at substantial risk, or to give the appearance of such. Further and importantly, there are presently in Victoria matters of real and legitimate public interest and concern as to the proper functioning of the state as to matters concerning drug dealing, underworld killings and police corruption. The Court will not stifle or impede legitimate public debate on, or dissemination of information bearing on, those matters. The public interest requires no less. Nor should the Court make an Order which will render that debate or dissemination logistically impossible, or which will impede that debate or dissemination, save for the necessary securing of fair trials.

However, I do add this that I said yesterday. This is the first of a number of very high profile cases I would expect that will come before the Court in the next couple of years arising from investigations into drug trafficking and other related matters, including underworld killings and police corruption. It is essential that the media exercise care and good judgment in publishing material which relates to any accused person including, of course, in this case, Mr Carl Williams and his father and wife. The Court will not stand in the way of proper public debate about matters of high importance. However the Court will not permit a campaign of vilification in the media about individual persons who are the subject of trial proceedings. And, as I am sure all persons know, the Court has far-reaching powers in relation to contempt, as well as powers in relation to prospective prohibition.

26 It appears from the material, particularly exhibited on behalf of Mr Carl Williams going back over some time, that Mr Carl Williams himself is a person who has spoken to the media on a number of occasions. I am sure Mr Williams understands that no trial of his will be adjourned because he, himself, creates publicity by dealing with the media.

Finally, as I said yesterday, the naming of accused persons who are under charge and awaiting trial must be dealt with with real prudence and judgment, and not loosely or in an unconsidered way.

I am not satisfied that there is a real risk of serious interference with the administration of justice. I have full confidence in the responsibility and capacity of Australian juries to judge cases solely on the evidence led before them in court.

Accordingly I refuse the prohibition Orders sought.

I conclude where I began, that I consider the bringing of the proceedings by the Director and ably represented by Mr Morgan-Payler was a responsible exercise of judgment.

[4] Ex parte Bread Manufacturers Ltd; re Truth and Sportsman Limited & Anor (1937) 37 S.R. (N.S.W.) 242 at 249-250.

[6] [1990] VicRp 87; (1990) V.R. 995 per curiam at 1006.

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