SUPREME COURT OF QUEENSLAND CITATION: PARTIES: FILE NO: DIVISION: PROCEEDING: ORIGINATING COURT: DELIVERED ON: DELIVERED AT: HEARING DATE: JUDGE: ORDER: CATCHWORDS: Old Newspapers P/L v Acting Magistrate Stjernqvist cfc Ors [2006] QSC 200 QUEENSLAND NEWSPAPERS PTY LTD ACN 009 661 778 (applicant) v ACTING MAGISTRATE H STJERNQVIST (first respondent) and MAGISTRATE A G DEAN (second respondent) and DANIEL CRIS PHILLIPS (third respondent) BS5539/06 Trial Division Application Supreme Court, Brisbane 17 August 2006 Supreme Court, Brisbane 8 August 2006 Douglas J 1. Prerogative order quashing the order of the first respondent of 24 May 2006 to the following effect: Pursuant to sl2(l) Bail Act that details of this proceeding, judiciary evidence and informal submissions decision and reason shall not be published by any mean 2. Further order that the matter be remitted to the Magistrates Court for further consideration according to law within 30 days of the date of this order. 3. Further submissions as to costs invited. MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - JURISDICTION, POWERS AND DUTIES - ORDERS AND CONVICTIONS - ORDERS GENERALLY - where acting magistrate made nonpublication order pursuant to section 12(1) of the Bail Act 1980 - where terms of the order uncertain - whether acting
2 magistrate acted beyond the power conferred by section 12(1) ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS - where acting magistrate ordered non-publication of bail proceeding as a whole - where no time limit for publication prohibition given - whether acting magistrate made a jurisdictional error in making the order Bail Act 1980 (Qld), sl2(l) Justices Act 1886 (Qld), s98a, sl47, sl47a, s235, s265 Attorney-General v Leveller Magazine Ltd [1979] AC 440, cited Craig v South Australia (1995) 184 CLR 163, cited Dilworth v Stamps Commissioners [1899] AC 99, cited John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344, followed JvL&A Services Pty Ltd (No. 2) [1995] 2 Qd R 10, cited John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, cited Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, cited Re Application by the Chief Commissioner of Police (Victoria) (2005) 214 ALR 422, followed Scott v Scott [1913] AC 417, cited YZFinance Co Pty Ltd v Cummings (1964) 109 CLR 395, cited COUNSEL: SOLICITORS: RA Mullholland QC for the applicant AJ Glynn SC with him AAJ Homeman-Wren for the third respondent Thynne & McCartney for the applicant Robertson O Gorman for the third respondent [1] Douglas J: This is an application to quash an order of an acting magistrate who, when dealing with a bail application, made a non-publication order. The precise terms of the order made are doubtful. In the form certified by the clerk of the Magistrates Court at Brisbane, it reads as follows: Pursuant to sl2(l) Bail Act that details of this proceeding, judiciary evidence and informal submissions decision and reason shall not be published by any mean [2] Section 12(1) of the Bail Act 1980 permits a non-publication order to be made. It provides: (1) Where the complainant or prosecutor or a person appearing on behalf of the Crown opposes a defendant's release under this part or the Juvenile Justice Act 1992, part 5, the court, at any time during the hearing of the application for bail, may make an order directing that the evidence taken, the information furnished, the representations made by or on behalf of either party or the reasons given by the court for the grant or refusal of bail or release under section 11A or any part thereof or any of them shall not be published by any means -
3 (a) if an examination of witnesses in relation to an indictable offence is held - before the defendant is discharged; or (b) if the defendant is tried or committed for trial - before the trial is ended. (2) A person who fails without lawful excuse, the proof of which lies upon the person, to comply with an order made under subsection (1) commits an offence against this Act. 0 Maximum penalty -10 penalty units or imprisonment for 6 months. [3] The question here is whether the order made by the acting magistrate went beyond the power given in that section. Background [4] The acting magistrate, who is the first respondent to this application, had heard a bail application which related to charges of rape and deprivation of liberty brought against the third respondent. These incidents were alleged to have occurred on or about 21 and 22 May 2006. After the acting magistrate made the non-publication order attacked in this proceeding, the applicant approached the second respondent, another magistrate, seeking to review the first respondent s order. The second respondent appears to have been unconvinced as to whether he possessed such a jurisdiction except, perhaps, in the case of a clear or unambiguous error, but, in any event, he did not make a decision in favour of the applicant. His decision not to review the first respondent s decision is also challenged. [5] The third respondent had previously been convicted of a number of sexual offences including rape that were all heard at the one trial. The convictions were overturned by the High Court on appeal on the basis that the charges should not have been joined. He is now awaiting retrial in respect of those original charges. [6] He has been granted bail on those charges by Mullins J of this Court, after the decision of the High Court, on a number of conditions, including a non-publication order. It seems that publicity associated with his previous grants of bail had made it difficult for him to stay at a number of bail addresses. The non-publication order made by her Honour was in these terms: The name of the applicant and the town in which he will reside whilst on bail, the contents of the affidavit of Mr O Gorman filed by leave today, the representations made by and information provided by the Director of Public Prosecutions and the applicant s solicitors in connection with the application and the reasons given by the court for the grant of bail must not be published by any means until the trial or trials of the charges the subject of this grant of bail are completed. [7] It is notable that her Honour s order is more precise and confined than that of the Magistrate which is attacked in these proceedings. Standing [8] The applicant is the publisher of The Courier-Mail, a daily newspaper published in Queensland. It wishes to publish a story reporting that a man appeared in court on
4 sexual offence charges allegedly committed while he was on bail on other charges of a similar nature. Its standing to bring its application under s. 44 of the Judicial Review Act is not contested by the third respondent. The terms of the order [9] One of the first questions to resolve is the true terms of the order made. The applicant has proved an order signed and sealed with a Magistrates Court seal by the clerk of the Court at Brisbane dated 29 June 2006 in Form 31 under the Justices Act 1886 as a certificate of order which records the order set out above. [10] Mr O Gorman, the solicitor for the third respondent, has sworn, however, that the note of the order apparently made by the acting magistrate from the solicitor s inspection of the court file on 7 August 2006, subject to some problems in deciphering the acting magistrate s handwriting of the words including and information, appeared to be as follows: I order pursuant to Section 12(1) Bail Act the details of this proceeding including evidence, information, submissions, decision and reason shall not be published by any means. [11] Mr O Gorman was unable to obtain a photocopy of the handwritten order from the Magistrates Court. [12] A different version of that order written on the file was read over the telephone to a solicitor from the firm acting for the applicant on 24 May 2006. It was as follows: I order pursuant to si2(1) of the Bail Act that details of this proceeding including evidence and informal submissions, decision and reason shall not be published by any means. [13] The obviously unusual uses of language in the form certified by the clerk of the Magistrates Court, such as judiciary evidence and informal submissions and the use of the word mean instead of means suggest that it is unlikely to have been a correct record of the order actually made. There may have been errors in transcription caused by the difficulties in interpreting the acting magistrate s handwriting experienced by Mr O Gorman. [14] Normally I would rely on the certificate issued over the hand of the clerk of the Court as the proper record of the Magistrates Court. Section 98A of the Justices Act 1886 provides that the clerk of the Court shall have the custody of all records and proceedings of every Court of which he or she is clerk and the certificate of the order is in the form prescribed under s. 265 of that Act. [15] Assuming, however, that the handwritten record of the acting magistrate examined by the solicitor for the respondent has been recorded accurately by Mr O Gorman, in spite of his difficulties in reading his writing, that may also be a record made for the purposes of that Court. Rule 1 of the Rules of Court under the Justices Act provides that each bench charge sheet and each bench complaint sheet shall, in relation to the proceeding therein referred to, be a record made for the purposes of a Court. It seems likely that the record inspected by Mr O Gorman was either a bench charge sheet or a bench complaint sheet.
5 [16] Section 147A of the Justices Act allows the rectification of orders and s 235 also permits this Court to amend orders that include defects or errors that appear to be defects of form only, or mistakes not affecting the substantial merits of the proceedings before the justices. I would also expect that the order could have been amended within the inherent jurisdiction of the Magistrates Court by use of the slip rule. I was not invited to make such amendments and there was no appearance on behalf of the first respondent, the acting magistrate. I was asked by the third respondent, however, to operate on the basis that Mr O Gorman s note of the order reflected the real order that was made. [17] Because of the odd use of language in the form certified by the clerk of the court it seems likely that the order recorded by Mr O Gorman was the one actually made and that its form would dictate the terms of any order rectified either under the statutory powers to rectify or under the slip rule. I propose to examine whether its terms are within the jurisdiction of the acting Magistrate. If it should be quashed there is no doubt that the order certified by the clerk of the Court should also be quashed. Jurisdictional error [18] The applicant s contention was that the acting Magistrate erred by restraining publication of details of the proceeding and the decision and in failing to impose any time limit on the operation of the order. Section 12(1) permits nonpublication only of the evidence taken, the information furnished, the representations made by or on behalf of either party or the reasons given by the court for the grant or refusal of bail. [19] The reasons for a decision are separate from the decision itself and Mr Glynn SC conceded that the word decision should be excised from the order. [20] Mr Glynn SC submitted also, however, that the use of the word including in the phrase the details of this proceeding including evidence, information, submissions, decision and reason in the order recorded by Mr O Gorman sufficiently qualified the words details of this proceeding as to bring them within the statutory language. He wished to rely on that form of the order particularly because of its use of the word including. In my view the use of that word does not save that form of the order from the problem identified by the use of the general words details of the proceeding. [21] Include is a word used by lawyers sometimes to enlarge the meaning of words or phrases and less often as the equivalent of mean and include, to afford an exhaustive explanation of the meaning of the preceding words.1 Such ambiguity should not attach to an order purporting to give effect to s 12(1) of the Bail Act. [22] Details of this proceeding is a phrase contained in each of the versions of the order that were submitted to have been made and is much looser, and capable of meaning rather more, than the evidence taken, the information furnished, the representations made by or on behalf of either party or the reasons given by the court, to use the statutory language. Arguably a prohibition against publishing i Dilworth v Stamps Commissioners [1899] AC 99,105-106; YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395, 398-399.
6 details of this proceeding extends to publication even of the fact that a nonpublication order was sought and granted. [23] Section 12(1), in allowing an order preventing the publication of such evidence, information, representations and reasons, derogates from the fundamental principles that the administration of justice should be carried out in public,2 and that, as a corollary, nothing should be done to discourage the publication to a wider public of fair and accurate reports of proceedings that have taken place in court.3 Accordingly the section should be construed strictly.4 [24] The order prohibiting the publication of details of this proceeding goes significantly beyond what s 12(1) of the Bail Act allows and amounts to a jurisdictional error arising from a mistaken assertion of power or a misconception of the limits of the jurisdiction to make such orders, which allows me to quash the order made.5 It was not an error within the acting magistrate s jurisdiction and is also an error on the face of the record.6 [25] The failure to limit the temporal effect of the order is also erroneous. Mr Glynn SC argued that the order should be construed by reference to s 12(1) to be limited to terminate on any discharge of the defendant after an examination of witnesses or at the end of the trial. It seems to me that an order of this nature should preferably be expressed in a self-contained form. It is intended to apply to publishers who were not parties to the proceedings before the court and they should be in a position to know, from the terms of the order, the precise limits that are imposed on the powers to publish that they would otherwise possess.7 The section anticipates that such a temporal limitation should be included in the order made and it is my view that the failure to include one also amounts at least to an error on the face of the record and probably also a jurisdictional error. It makes what appears to be an open-ended order when the acting magistrate was statutorily empowered only to make an order limited to the end of any examination of witnesses or of a trial. Position of the second respondent [26] The applicant argued that the second respondent had an inherent power to amend or vacate an order made by another magistrate or such a power under s 24AA of the Acts Interpretation Act 1954 which provides that if an Act authorises the making of an instrument or decision the power includes power to amend or repeal the instrument or decision. I doubt that any such power could be used as a substitute for the appeal process or the power of review given by the Judicial Review Act 1990. There is, for example, a limited power /to set aside orders where matters arising after the order may be taken into account under r. 668 of the Uniform Civil Scott v Scott [1913] AC 417; JvL&A Services Pty Ltd (No. 2) [1995] 2 Qd R 10. Attorney-General v Leveller Magazine Ltd [1979] AC 440,450; Re Application by the Chief Commissioner of Police (Victoria) (2005) 214 ALR 422, 449 [119]. Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, 55; Re Application by the Chief Commissioner of Police (Victoria) (2005) 214 ALR 422, 448 fh 99. Craig v South Australia (1995) 184 CLR 163, 176-177. Craig v South Australia at 179-180 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 477 where McHugh JA said: Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice.
7 Procedure Rules 1999, but it may not be used in lieu of the appeal process where the argument is that the order was incorrect when it was made.8 [27] The third respondent also argued that the second respondent s decision was one made within his jurisdiction and that, in any event, any relief sought against him would be futile as, if I quashed the first respondent s decision, then there was no need to consider the validity of the second respondent s decision and, unless I also quashed the first respondent s decision, there was no point in simply quashing the decision of the second respondent. There seems to me to be a deal of merit in that argument that it would be futile to deal with the second respondent s decision. [28] It is unnecessary, therefore, for me to decide the issue whether the second respondent could review the first respondent s decision because of my views about the need to quash the order made by the first respondent. Disposition of the matter [29] The decision of the first respondent should be quashed for the reasons I have outlined. I do not think it appropriate merely to excise certain words from it, partly because of the uncertainty attaching to the form of the order, but also because there has been no evidence before me about the issues argued before the acting magistrate dealing with the merits of making the non-publication order. The transcript of the hearing was not available partly because of the form of the order that is challenged here and also because it had not been transcribed. [30] Mr Mulholland QC argued that the discretion to make a non-publication order appears to contemplate the need to suppress information that may frustrate the proper administration of justice at a committal hearing or trial. That seems to follow from the terms of the section. The information often relied on at a bail application may include a defendant s criminal history, opinion evidence or hearsay statements that would be inadmissible at a trial and detrimental to its fairness if published before the trial. The problem referred to by Mullins J in respect of the third respondent s ability to live at addresses nominated for his bail is another example of the sorts of problems that may arise. Mr Mulholland QC submitted that, if one had regard to the principle of open justice and the purpose of the section, an order would be justified only to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice (my emphasis), in reliance on a passage of a decision from the decision of Lord Diplock in Attorney-General v Leveller Magazine Ltd [1979] AC 440, 450. [31] In the recent decision of the New South Wales Court of Appeal in John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 Spigelman CJ embarked an a lengthy and useful analysis of the circumstances in which such orders were justified. He endorsed the application of the test of necessity both to the power to make a non-publication order under the inherent jurisdiction and to statutory powers; see, especially, at 356-358 [38]-[48]. At 356-357 in particular he had this to say: [38] Much of the relevant case law on non-publication orders is concerned with courts which have an inherent jurisdiction. In such a case a test of necessity is applied to the exercise of the power to make an order, as distinct from determining the existence of the See, e.g., Rockett v The Proprietors of "The Sands" BUP 82 [2002] 1 QdR 307, 311-312 [13]-[15],
8 power. In the context of an implied power, the two levels are analytically distinct but, as a practical matter, there will rarely be any need to differentiate between the two levels. Cases which apply a test of necessity to the exercise of an inherent jurisdiction or of an express statutory power will guide the determination of whether a power arises by way of implication for a statutory court. [39] Both the existence of, and the limitations upon, a power to make a non-publication order are set out in the principal authority on this subject in this State: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, an authority which has frequently been referred to with approval and which this Court should follow. [40] In that case, McHugh JA said (at 476-477): The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also 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. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is necessary to enable it to act effectively within its jurisdiction. (Emphasis added.) [41] The internal quote in the last sentence is a reference to the judgment of Lord Morris of Borth-y-Gest in Connelly v Director of Public Prosecutions (at 1301), quoted earlier by McHugh JA, and which I have set out above, in which his Lordship identified the powers necessarily implied as an incident of the conferral of jurisdiction on a court. [42] To the same effect are the observations of McPherson J, quoted with approval by McHugh JA in John Fairfax v Police Tribunal, in Ex parte Queensland Law Society [1984] 1 Qd R 166 at 170:... [T]he power of the court under general law to prohibit publication of proceedings conducted in open
9 court has been recognized and does exist as an aspect of the inherent power. That does not mean that it is an unlimited power. The only inherent power that a court possesses is power to regulate its own proceedings for the purpose of administering justice; and, apart from securing that purpose in proceedings before it, there is no power to prohibit publication of an accurate report of those proceedings if they are conducted in open court, as in all but exceptional cases they must be. [32] The High Court also had this to say recently in Re Application by the Chief Commissioner of Police (Victoria) (2005) 214 ALR 422, 448-449: [114] The clear authority of this court, of other final courts and of other Australian courts lays consistent emphasis on the fact that the principle of open justice is deeply entrenched in our law. It is not an absolute principle. Subject to the Constitution, it may be modified by legislation, such as that enacted in the form of the Supreme Court Act [Vic] ss 18 and 19. But the resolution of claims for the closure of courts during criminal trials (even the exclusion from part of them of counsel for the accused where the accused is also absent) and limitations imposed by judicial orders on reportage of proceedings conducted in open court remain wholly exceptional in this country. [119] It is not sufficient for the assurance of open justice in this country that the doors of a court should be unlocked. Fair and accurate reports of what occurs in courtrooms is an essential attribute of the administration of justice in Australia. To the extent that the Supreme Court Act ss 18 and 19 impinge upon these essential features of the Australian court system, the exercise of the powers there provided must take the principle of open justice into close account. [33] Although the power under s 12(1) is a statutory power influenced by the legislative context in which it appears, it seems to me that these general principles about the limited, necessary circumstances in which non-publication orders may be made should be kept in mind by any court exercising that jurisdiction. Orders [34] I shall make a prerogative order quashing the order of the first respondent of 24 May 2006 to the following effect: Pursuant to si2(1) Bail Act that details of this proceeding, judiciary evidence and informal submissions decision and reason shall not be published by any mean [35] I shall further order that the matter be remitted to the Magistrates Court for further consideration according to law within 30 days of the date of this order. I shall hear the parties further as to costs.