Criminal law and procedure - Application for bail - Court's power to prohibit publication of proceedings under s 20 Bail Act 1982 (WA) - Meaning of "published by any means" in s 20(2)(a) Bail Act - Application for leave to listen to and obtain transcript of electronic recording of bail proceedings under s 33 Magistrates Court Act 2004 (WA) - Whether access to electronic recording of proceedings by a party to a case constitutes publication - Whether Magistrate erred in refusing leave to access electronic recording of proceedings subject to a prohibition order

Magistrates - Appeals from and control over Magistrates - Application for a review order under s 36 Magistrates Court Act 2004 (WA) - Procedure on application

Bail Act 1982 (WA), s 20

Magistrates Court Act 2004 (WA), s 33, s 36

Roget v Flavel (1987) 47 SASR 402

Titelius v Public Service Appeal Board & Ors [1999] WASCA 19; (1999) 21 WAR 201

Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 214 ALR 56

1 This matter reduces to a short question of the proper construction of s 20 of the Bail Act 1982 (WA), and the proper approach to the exercise of the discretion to grant or withhold leave to permit a party to a case in the Magistrates Court access to any recording of the proceedings in the case under s 33 of the new Magistrates Court Act 2004 (WA).

2 The question of construction arises in this way. The accused was facing charges, and had applied for bail in the Magistrates Court before her Honour Magistrate Lane. The application for bail was heard on 12 August 2005. The learned Magistrate made orders, apparently under Bail Act, s 20, that no account of the proceedings on the application for bail be "published by any means" (s 20(2)(a)), and that the proceedings be held in camera (s 20(2)(b)).

3 In view of their importance in this matter, I set out Bail Act, s 20(2)(a) and (b), and the preceding s 20(1), as follows:

"20. Power to consider bail in camera and to prohibit publication

(1) On the consideration by a judicial officer of a case for bail of an accused who is charged with an offence triable by jury, the judicial officer may, to avoid prejudice to either party, exercise the powers described in subsection (2), but shall only exercise the power in paragraph (b) thereof if he considers that the exercise of the power in paragraph (a) is not, on its own, likely to be sufficient to avoid prejudice.

(2) The powers referred to in subsection (1) are to order -

(a) that no report, or summary, of any statement, or of any specified statement, made or furnished at the hearing shall be published by any means;

(b) that the bail application be heard in camera."

4 I have indicated that Magistrate Lane's orders were apparently made under these provisions, as I do not have the text of such orders before me. However, it is plain from her Honour's reasons for decision before me for review that her Honour saw her orders at the bail hearing as made under those provisions. In addition, the supporting affidavit for the proceedings before me of Jeremy David Birch sworn 10 October 2005 refers to a "prohibition order ... made pursuant to s 20(2)(a) of the Bail Act 1982". The paragraph in which this reference appears in that affidavit goes on to say, however, that "her Honour Magistrate Lane advised that the transcript was not to be available to any person except herself", apparently at the hearing on 12 August 2005. I return to this last aspect of the bail proceedings later in these reasons.

5 As well as making the prohibition and in camera orders referred to, her Honour granted the application for bail.

6 On 29 September 2005, Magistrate Lane heard and decided the applicant's application under Magistrates Court Act s 33(4) for leave to "listen to and obtain a copy of all of the electronic recording of the proceedings in the case, namely the bail hearing on 12 August 2005" (Application for Leave in Respect of Court Record, form 2, being annexure A to Mr Birch's affidavit). In view of their importance to these proceedings, I set out in full s 33(4) together with s 33(2). The significance of s 33(2) will be apparent shortly. The provisions read as follows:

"(2) This section is subject to any other written law that relates to the possession or publication of documents and other records or to the possession of any thing.

(4) With the leave of the Court, a party to a case may -

(i) any electronic recording tendered to the Court in the case; or

(ii) any electronic recording of the proceedings in the case,

and obtain a copy of all or a part of such a recording;

(b) inspect or obtain a copy of any document held by the Court in relation to the case;

(c) inspect any other thing tendered to the Court in the case and, if it is practicable for the Court to make a copy of such a thing, to obtain a copy of it."

7 The term "electronic recording" is defined in s 33(1) for the purposes of the section as "any electronic or magnetic recording of sounds or moving images or both".

8 It appears, from the transcript of the hearing of the application for leave before her Honour, that there was an "electronic recording" of the hearing of the application for bail on 12 August 2005. However, it also appears there was no transcript of the hearing of that bail application. Had there been a transcript, then the applicant would have had the entitlement to it in s 33(3)(c), as follows:

"(3) A party to a case is entitled, on request, to inspect or obtain a copy of the following documents -

...

(c) if an electronic recording has been made of the proceedings and a transcript of it has been prepared, a copy of the transcript;"

9 It is evident from a comparison of s 33(3)(c) with s 33(4) that the entitlement in the former is different from the facility in the latter.

10 The applicant for leave under s 33(4) was the applicant before me, and was a member of the Western Australian Police Service who was the prosecutor on the charge or charges against the accused. I accept that this made him "a party to a case" for the purposes of s 33(4): see Criminal Procedure Act 2004 (WA), s 20(3).

11 Her Honour Magistrate Lane refused the application for leave made on 29 September 2005. She referred to the order she had made prohibiting an account of the bail proceeding, and in substantial reasons rested her decision to refuse leave on that order in the following way.

12 The Bail Act, s 20(2)(a) would "conflict" with Magistrates Court Act, s 33(4), and the provision of the Bail Act has "precedence", because of Magistrates Court Act, s 33(2) above. In her Honour's view, the words of s 20(2)(a) capable of producing such a "conflict" were "published by any means". Those words were capable of a range of meanings, from a "broader" one to a less broad one. Her Honour identified a less broad one with the dictionary meanings of "publication", such as that in the Shorter Oxford English Dictionary quoted in Roget v Flavel (1987) 47 SASR 402, Cox J 406 as follows:

"The action of publishing or that which is published. 1. The action of making publicly known; public notification or announcement; promulgation. b. spec. in Law. Notification or communication to those concerned, or to a limited number regarded as representing the public ...."

13 Her Honour made extensive reference to Roget, in this respect and others, as will become apparent.

14 Her Honour rejected the less broad meaning referred to. In this connection she acknowledged from Roget the view of Cox J that the dictionary definition quoted gave the "general sense" (Roget (supra) at 406) of what "publication" meant in s 69A of the Evidence Act 1929 (SA). That provision authorised the making of suppression orders "forbidding the publication" of evidence of names in judicial proceedings. His Honour indicated, however, in words that the learned Magistrate invoked, that the "precise meaning" of "publication" in the statutory provision in South Australia "must depend, in my view, upon the context in which it is used, the mischief that the legislation is designed to overcome, and the need to construe the scheme created by s 69a [sic s 69A] in a way that will make it workable" (at 405).

15 The learned Magistrate pointed to the context as Bail Act, s 20(2), which (unlike s 69A of the Evidence Act 1929 (SA)) is concerned only with the parties to proceedings and prejudice to them. This was reinforced, it seems, by her Honour's view of the provision in s 20(2)(b) for hearings in camera. In her Honour's view, so far as I can determine it, her understanding of the meaning to be given to s 20(2) was still further reinforced by the use of the words "by any means" after "published" in that provision.

16 By contrast, s 69A of the Evidence Act (SA) indicated that the court, in considering whether to make a suppression order other than an interim suppression order, could only make the order if satisfied that "prejudice to the proper administration of justice or undue hardship [to an alleged victim of crime, a witness or potential witness not a party to civil or criminal proceedings, or to a child]" if the order were not made should receive greater weight than the "public interest in the publication of information related to court proceedings, and the consequential right of news media to publish information" (Evidence Act (SA), s 69A(2)(b), read with s 69A(2)(a) and (1)(b)). In addition, there was, under s 69A but not under Bail Act, s 20, a right for news media to intervene in proceedings for a suppression order, and to appeal or intervene in an appeal against the grant of the order (Evidence Act (SA), s 69A(5)(a)(iii) and s 69A(9)(c)).

17 As to the "mischief" at which s 20 of the Bail Act was addressed, her Honour appears to have identified this with the passage in the Law Reform Commission of Western Australia, Project No 64, Bail, (1979) at par 5.15, which reads as follows:

"5.15 The view was expressed in the Working Paper, and has recently been expressed by the Chief Justice, that, on many occasions, the publication of bail hearings could prejudice the defendant at his trial. This applies particularly to evidence of the likelihood of the defendant's conviction, or evidence of his criminal record. There may also be other reasons for non-publication. For example, if bail is refused where the police wish to make further inquiries, it may prejudice those inquiries if they must be revealed in open court."

18 Her Honour also appears to refer in this connection to the Second Reading Speech by the Hon I G Medcalf, Attorney General (Hansard, 12 May 1982) as follows:

"There are some particular procedural provisions in the Bill and the most noteworthy of them are designed to ensure that no prejudice is suffered by [sic a] defendant from publicity of bail hearings, no prejudice is suffered by him as a result of information he provides for the purpose of the consideration of bail, and provisions designed to ensure that the court has [a] capacity to elicit relevant facts, without being bound by strict rules of evidence, in cases where such rules might impede the proper consideration of relevant factors."

19 The learned Magistrate does not, however, appear to consider the criterion of workability from the dicta of Cox J in Roget. This is a matter which, with the other two aspects of the approach to which his Honour directs attention, will be returned to below.

20 The learned Magistrate does not clearly indicate the meaning of "published by any means" she favoured, other than to associate it with a "broader" meaning, it would appear. However, it appears to me what she had in view was the meaning pressed on Cox J in Roget, which he rejected. That meaning, of "publication", is the meaning of published in defamation law, of "any communication ..., by one person to another" (at 405).

21 The applicant sought by originating motion a review order pursuant to s 36 of the Magistrates Court Act. This was sought in respect of the learned Magistrate's refusal to make the order granting leave under s 33(4).

22 It would seem that this is at least an application under Magistrates Court Act, s 36(1)(c), as the relief sought included an order to set the decision aside. However, it may also be an application under Magistrates Court Act, s 36(1)(a), as the relief sought also included "as consequential" to the setting aside, that the original application be granted.

23 The provisions of s 36(1)(a) and (c) are as follows:

"36. Supreme Court's powers to control Court

(1) If a person is or would be aggrieved by one or more of the following -

(a) the failure of a Court officer to do any act or make any order or direction -

(i) on the ground that the officer is under a duty to do the act or make the order or direction; or

(ii) on any ground that might have justified an order of mandamus;

...

(c) an act, order or direction done or made by a Court officer -

(i) on the ground that it was done or made without jurisdiction or power or is an abuse of process; or

(ii) on any ground that might have justified an order of certiorari,

the person may apply to the Supreme Court for an order (a 'review order') that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires."

24 I return below to a modification by the applicant of the relief originally sought, to change the mandatory order to a declaratory one.

25 The procedure under s 36, Magistrates Court Act, is new, and I have not been able to find any decisions concerning it. The provision takes the place that might otherwise have been occupied by the prerogative writs, whose availability is excluded by s 35. Instead, there is provision for an order, called a "review order", requiring a court officer, by whose decision or failure to make a decision the applicant is aggrieved, as well as requiring any person who will be affected by the decision or the failure, to satisfy the court the order should not have been or should be made: s 36(1), closing words above. The procedure for such orders is as prescribed by the rules of this Court: s 36(2). Under the rules applications must be made ex parte (O 56A, r 2) and the court is permitted, in making a review order, to include an order as to who, apart from the court officer, must be served with the review order (O 56A, r 3(a)).

26 At the time the present application first came before me, I was provided with a notice from her Honour Magistrate Lane that she did not intend to appear by counsel, and would abide by the Court's decision, save as to costs. In view of the basis I have described for her Honour's decision in respect of which review was sought, and the terms of Bail Act, s 20(1), referring to the prejudice to the parties from the failure to make orders under s 20(2), I ordered that the accused be served with a copy of the application papers and my review order. At the hearing of the review order before me, senior counsel for the applicant provided me with a copy of a letter from the solicitor for the accused. This letter confirmed his instructions to accept service of all documentation on the accused's behalf, that the solicitor had taken his client's instructions in relation to the matter, and that his client did not wish to make any submissions in relation to the review order proceedings before me. As a consequence, I heard only from senior counsel for the applicant.

27 I turn now to consider the applicant's submissions, and the merits of the application.

28 I have already referred to the general meaning of "publication" taken from the Shorter Oxford English Dictionary quoted by Cox J in Roget (supra). Senior counsel for the applicant submitted to me that the context to orders under s 20(2)(a), rather than pointing to another meaning, reinforced that general meaning. While there was no context like that in s 69A of the Evidence Act (SA), referring to publication through the media, there was a corresponding indication, it was said, that the general meaning should be followed in the context of s 20(2).

29 That contextual indication was s 20(1)'s reference to the interests to be served by a s 20(2)(a) order, avoidance of prejudice to either party. It was hard to see what prejudice would be caused by communication other than that within the general meaning referred to.

30 I agree. This submission, in my view, derives further support from the concerns about prejudice to a fair trial under the prosecution's investigations referred to in the Law Reform Commission Bail Report quoted from above. That reference appears to capture the form of prejudice of concern. While it is possible to envisage broader forms of prejudice, of the sort that a report by a party to another associated with that party might involve, I do not consider that this is "prejudice" within s 20(1). I further note the use of the word "publicity" in the Second Reading Speech of the Hon I G Metcalfe quoted above.

31 It is important to note, however, that the concerns referred to in the Law Reform Commission Report, and in the Second Reading Speech referred to, could be engaged by communications other than to or through the media. Cox J in Roget (supra) referred to possibilities caught by publication that went beyond communication to or through the mass media. He said this (at 406):

"The typical publication prohibited by s 69a [sic s 69A] will be publication by means of a newspaper or a television or wireless broadcast. However, there are other ways in which the communication of information may be made with the necessary public element - an announcement at a public meeting, for instance, or a statement uttered to the world at large on a street corner. Perhaps there could be cases in which, in accordance with the dictionary definition, notification to a relatively small group of people could be regarded, by reason of their random, or in some circumstances their representative, character, as a publication under s 69a. Obviously there will be borderline cases. There is no need to explore the matter exhaustively now."

32 In my view, the general meaning does indeed extend beyond communication to or through the media, without it being necessary for me to determine the full extent of such extension.

33 However far the general meaning does extend beyond the situations of communication to or through the media, that general meaning does not extend, in my view, to communication to either of the parties to the bail application. As I was reminded, they or their representatives at least would be present in proceedings ordered to be held in camera pursuant to s 20(2)(b). This is the most severe restriction on public access to the proceedings that is possible under s 20(2). Orders under s 20(2)(a) and (b) would seem to be directed to displacing the strong common law principle that the public have a right of access to court hearings and information about them. This is because the provision would on its face qualify the application of what has been referred to as "the fundamental principle that, generally, court proceedings shall be conducted publicly and in open view" (Titelius v Public Service Appeal Board & Ors [1999] WASCA 19; (1999) 21 WAR 201, per Ipp J at [96]). However, it would seem to be inconsistent with Bail Act, s 20(1)'s reference to the avoidance of prejudice to the parties to have an order made under s 20(2)(a) deny them access to records of their proceedings, whether under the entitlement in s 33(3)(c), or by leave under s 33(4) of the Magistrates Court Act.

34 Communications by the parties to others in circumstances constituting "published by any means" would indeed be caught by an order under s 20(2)(a). Such communications are not, however, reached by s 33 of the Magistrates Court Act, in my view. That provision is about, so far as parties to the proceedings are concerned, their entitlement to access, or obtain a copy of, certain court documents, recordings or records, and to seek leave to access, or obtain a copy of, other court documents or recordings.

35 Indeed, it seems to me that a view of "published by any means" in s 20(2)(a) of the Bail Act wide enough to catch any communications to anyone would create difficulties of a workability kind. Considerations of workability were, as I have indicated, referred to by Cox J in Roget (supra) as relevant to a consideration of the scope of a word like "published". It is not clear from the terms of s 20(2)(a) that an order may be made otherwise than in its terms. While it is possible to confine the order by reference to a "specified statement" that was "made or furnished at the hearing", it is not clear to me that the order could be made subject to qualifications for communications to such persons or in such situations as the maker of the order might specify. It surely cannot be the case that the order would prevent communication of the proceedings by release of the record of them to such as the presiding judicial officer. Just such access was, as I have already indicated, understood by the learned Magistrate to be available to her in this case.

36 This is not to say that a written law relating to possession or publication of documents and other records, or possession of any thing, might not, as s 33(2) provides, qualify a party's entitlements under s 33 of the Magistrates Court Act. It was put to me that s 33(2) was intended to affirm that such satisfaction of such entitlements was not "publication" for the purpose of a provision like s 20(2) of the Bail Act. I do not agree. The meaning of "publication" has to be drawn from the written law concerned, in my view. To that extent, I agree with the approach of the learned Magistrate. It might be, for example, that a written law preventing copying of a document or other record, as a result of s 33(2), would qualify a party's entitlements under s 33 to a copy of the document, although it would be necessary to attend carefully to the scope of the copying prohibition. Or it might be a written law prohibiting access to certain information would, as a result of s 33(2), qualify a party's entitlements under s 33 to access a document or other record containing that information, although again it would be necessary before reaching that conclusion to attend carefully to the scope of the access prohibition. To this extent, I consider "publication" in s 33(2) of the Magistrates Court Act would take the broader meaning that commended itself to the learned Magistrate in respect of s 20(2) of the Bail Act. However, in my view, I do not need to finally resolve this.

37 Accordingly, it seems to me that it was an error of law for the learned Magistrate to refuse leave to the applicant under s 33(4) of the Magistrates Court Act to listen to and obtain a copy of the "electronic recording" of the proceedings on the application for bail on 12 August 2005. The error lay in her determination that there was no question of granting leave because of the prohibition order she had made in relation to that bail hearing under the Bail Act, s 20(2)(a). This is an error of law that might have justified an order of certiorari (Magistrates Court Act, s 33(1)(c)(ii)): see Seaman's "Civil Procedure in Western Australia" at [56.11.2A]).

38 The applicant filed, for the purpose of the review order hearing before me, a minute of proposed orders. This minute sought two principal orders. One was to set aside the decision the subject of the review order. The other was, as described to me by senior counsel for the applicant, a declaration that the applicant is entitled to listen to and obtain a copy of all of the electronic recording of the proceedings in the bail hearing on 12 August 2005, and a transcript thereof. The minute also states that no order as to costs should be made.

39 There are some matters requiring consideration in respect of the orders sought.

40 Under s 36(4)(a), Magistrates Court Act I have authority to set aside the decision of the learned Magistrate on 29 September 2005, and would do so in this case.

41 The applicant might also on a writ of certiorari have sought a mandatory order directed to the inferior body to have it hear and to determine the matter again, according to law: Seaman (supra) at [56.11.4]. Relief of that sort might then be given under Magistrates Court Act, s 36(4)(b). However, here the applicant, as I have said, seeks a declaration that would have the effect that the relevant judicial officer of the Magistrates Court would have to grant the leave requested.

42 Declaratory relief would not be available by way of one of the prerogative writs, but in the exercise of a separate jurisdiction: Law Reform Commission of Western Australia, Project No 95, Report on Judicial Review of Administrative Decisions (2002), at 3. However, apart from any possible relevance to these proceedings of the inherent jurisdiction of the court to order declaratory relief (Seaman (supra) at [56.0.8]), declaratory relief might be ordered under s 36(4)(c) in a suitable case as, in the words of that paragraph, a "necessary consequential" order.

43 There appears to be no reason not to grant the leave to listen to and obtain a copy of the electronic recording that is evident to me from the transcript of the proceedings before the learned Magistrate. Indeed, I note the learned Magistrate's view that, on the "normal meaning" of s 33, "parties to the proceedings would be entitled" under s 33(4) to "come and listen to the tapes" (TS 24). While I am not convinced there is a general entitlement in the sense of that in s 33(3)(c), it seems to me this indicates her Honour's view that she saw no reason not to grant the leave requested, except for the prohibition order under Bail Act, s 20(2)(a).

44 Further, there would seem to be no barrier to granting declaratory relief represented by the fact it is sought in relation to a matter arising out of criminal proceedings. There is a principle that declaratory relief should not be granted which would "impinge directly upon the course of proceedings in a criminal matter" (Halsbury's Laws of Australia, [10-2500]), absent exceptional circumstances. However, that principle would seem to have no application to a matter that is collateral to criminal proceedings in the way in which the leave sought was collateral to them.

45 In these circumstances, it would seem to me to be appropriate to view the declaratory relief sought as a "necessary consequential" order on the setting aside of the refusal of the leave applied for. Indeed, it seems to me that the applicant could have sought a mandatory order for the grant of leave in those circumstances, under s 36(4)(a), read with s 36(1)(c)(ii), as indeed the original application for a review order appears to have done. The original application was modified in that respect by the minute of proposed orders.

46 However, I should note one further matter. The applicant also seeks relief in declaratory form in respect of a copy of the transcript of the bail proceedings of 12 August 2005. It does not seem to me that s 33(4) allows for leave to obtain a copy of a transcript. As I have indicated, there is separate provision of that sort, by way of an entitlement to, if a transcript has been prepared, "a copy of the transcript", under s 33(3)(c). In the face of that provision, it seems to me that s 33(4) is not to be read as a means of requiring the production of the transcript. I also note that the original application for leave in respect of the court record in this matter, annexure A to Mr Birch's affidavit, made no reference to any copy of the transcript. Nor was any request for such a copy made at the hearing of the application for leave before her Honour on 29 September 2005.

47 However, I further note that her Honour does indicate, at the hearing on 29 September 2005 (TS 25) that in a suitable case she was prepared to order the production of a transcript. However, it is not clear if she meant by this to indicate that a suitable case might be (absent s 33(2)) the hearing of the leave application, at least where no further action was proposed to be taken in respect of the decision to grant bail. The matter of whether a transcript would be ordered is a decision, it seems to me, for the learned Magistrate, and is not within my jurisdiction in these proceedings.

48 I will hear from the applicant as to the appropriate form of orders to make in these circumstances.