Citation: Gonzalez v Director of Public Prosecutions & Ors [2003] NSWSC 449 revised - 27/05/2003
Court: Supreme Court of New South Wales, Common Law Division
Date: 23 May 2003
Judge(s): Michael Grove J
Background
The plaintiff was accused of three murders and had brought proceedings in the Supreme Court relating to suppression orders. At a hearing on 13 May 2003, the plaintiff's counsel invited the Crown to outline its allegations. In response, the Crown produced a lengthy document entitled "An Outline of Crown Allegations," which contained detailed summaries of anticipated witness evidence, including material relating to an alleged false alibi and statements from witnesses described as vulnerable.
At that earlier hearing, counsel for the second and third defendants (two media organisations) received a copy of the document and gave an undertaking not to distribute it further. The Crown had expressed concern at the time about the document's sensitivity.
By 23 May 2003, both the Crown and the plaintiff brought a motion seeking the return of the document (Exhibit A) and, if necessary, an order preventing further publication of its contents. The media defendants opposed the application.
Legal Issues
- Whether the court had jurisdiction to order the return of a document that had been tendered in evidence and, on one view, entered the public domain
- Whether the possibility (rather than imminence) of prejudice to the criminal trial was sufficient to justify the order
- Whether the limited original purpose of the tender was a relevant factor in determining whether the document should remain in the public domain
Decision
The media defendants relied on the principle stated by Mason CJ in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, that material adduced in evidence in court proceedings generally becomes part of the public domain unless the court restrains publication. Grove J acknowledged the principle but found it did not prevent the court from acting in the present circumstances.
His Honour drew on Attorney General v Mirror Newspapers (1981) 1 NSWLR 374, a contempt case recognising the risks that publication of evidence can pose to witnesses. Those risks include witnesses giving evidence of greater or lesser cogency, or entirely different evidence, after being exposed to published material. Grove J held that the court's jurisdiction in these circumstances extends to avoiding a possibility of harm, not merely responding to an imminent or specific risk.
Grove J also placed weight on the original purpose of the tender. The document had been produced solely to provide background for a discrete issue concerning identity suppression. A much shorter document would have sufficed for that purpose. The fact that a fuller document was tendered, whether as a matter of error or tactics, did not justify leaving detailed witness statements in the public domain as a consequence.
Balancing these factors, the court was satisfied that the need to avoid the possibility of inappropriate use of the material, whether deliberate or inadvertent, outweighed any interest in the document remaining accessible to the media defendants.
Orders Made
- Exhibit A (the "Outline of Crown Allegations") directed to be returned to the Crown
- The copy held by counsel for the second and third defendants returned to the Crown
- Counsel for the second and third defendants released from his earlier undertaking upon return of the copy
Key Takeaways
- The Supreme Court confirmed that its jurisdiction to restrain publication or order the return of tendered material is not limited to situations of imminent or specific risk; the possibility of prejudice to a fair trial is capable of supporting such an order.
- A document entering the public domain through tender does not automatically remain there: the court may intervene where the content poses a realistic, even if not immediate, risk of affecting witness evidence in ongoing criminal proceedings.
- The original and limited purpose for which material was tendered is a relevant consideration in determining whether it should remain accessible after proceedings; a document admitted for a narrow background purpose does not necessarily acquire permanent public domain status on that account.
- Attorney General v Mirror Newspapers (1981) 1 NSWLR 374 was applied to support the proposition that pre-publication of witness statement content carries recognised risks, including that witnesses may subsequently alter, moderate, or depart from evidence they would otherwise have given.
- Where a tender of an overly detailed document could have been avoided, that circumstance does not itself justify the document remaining in the public domain as a consequence of the error.
Legislation and Cases Referenced
Cases:
- Attorney General v Mirror Newspapers (1981) 1 NSWLR 374
- Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Legislation: No specific legislation was cited in the judgment.