State of Queensland v Nuttall[2007] QSC 79

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MOYNIHAN J

No 527 of 2007

BRISBANE

..DATE 20/02/2007

ORDER

HIS HONOUR:  In this case I have initialled the draft restraining order under Section 28 of the Criminal Proceeds Confiscation Act (2002).  I am satisfied that the statutory requirements for the granting of such an order have been satisfied - it was not in fact in contention as to that aspect - I am satisfied that the order should be made.

Counsel for Mr Nuttall seeks an order under Section 285 of the Criminal Proceeds Confiscation Act (2002) suppressing publication of the evidence on which the order was made.  The basis on which the suppression order is sought is that publication of the evidence will or may be detrimental to a fair trial by jury of Mr Nuttall.  It is to be noted that there is the potential for another individual who is the subject of charges, to be effected in a similar way.

It is important to emphasise that the material - the evidence - is unchallenged and untested.  Much of it would be inadmissible at a trial for criminal offences, although it is properly taken into account in course of these proceedings. 

Mr Nuttall has been charged with an indictable offence in relation to the matters canvassed in the evidence it is sought to suppress.  There is, as yet, no committal proceedings.  Taking into account the complexity and volume of evidence as appears from the material here, it is likely that the matter, if it is to go to trial, will not do so for some months or longer.

Evidence put forward on Mr Nuttall's behalf shows that his affairs in respect of the matters the subject of the charges and canvassed by the evidence it is sought to suppress, have been subjected to widespread interest, comment and speculation, in some respects not favourable to him, in the print and electronic media and on the web on a number of blog sites.  It is clear that the evidence the subject of the application is at least capable of being prejudicial to Mr Nuttall.  It is, as I have said, sufficient to found the making of the restraining order and its publication is likely to generate further interest and comment which may again give rise to further adverse speculation, comment and views being formed.

The order which is sought arises from the tensions between what is commonly referred to as the principle of open justice on the one hand and on the other, the potential prejudice of a fair trial by jurors being influenced by material which is not in evidence.  An example of discussion of these consideration is to be found in the Law Commission of New South Wales Discussion Paper 43, particularly paragraphs 10.47 to 10.49.  I will return to those considerations shortly.

Counsel sought leave to intervene on behalf of Queensland Newspapers to oppose the making of the order.  The question of standing necessarily arises in such situations. 

Section 258 of the Criminal Proceeds Confiscation Act allows the Court to make orders in quite general untrammelled terms.  Such suppression orders which had been made under the Section have been on the basis of protecting ongoing operational activities or not to allow the frustration of law enforcement or to protect informants.  Those issues do not arise here.

It may be accepted that Queensland Newspapers is the publisher of a newspaper in Queensland and has an interest in being able to report and publish Court proceedings.  Such an interest has been found sufficient to provide standing in an application such as this; see for example, John Fairfax & Sons Pty Ltd -v- Police Tribunal of New South Wales (1996) 5 NSWLR 465; Re: Bromfield, Stipendiary Magistrate; Ex parte West Australian Newspapers Ltd [1991] 6 WAR 153 and in the High Court in the Australian Conservation Foundation Inc -v- The National Companies and Securities Commission (1989) 85 ALR 475.

Given the untrammelled terms of the section, the considerations canvassed in those cases and what I have said about the applicant and its role it seems to me appropriate to find that there is standing. 

It is a fundamental premise that Court proceedings should be conducted in public although there may be exceptional circumstances to which I will turn in a moment.  The general principle is examined and expounded in a range of cases, I do not propose in ociting them all here but of particular note are Scott -v- Scott [1913] AC 417; Russell -v- Russell (1976) 134 CLR 495; and J -v- L & A Services Pty Ltd (No. 2) [1995] 2 Qd R 10 (Court of Appeal) and in John Fairfax & Sons -v- Police Tribunal of New South Wales (1986) 5 NSWLR 465.

No doubt there are, as I have said, exceptions to the general rule.  Some of them are statutory, that does not arise here.  It is recognised in terms of the general law that a departure may be justified in circumstances where adherence to the rule of openness of proceedings would frustrate or render futile or  impede the administration of justice.  The cases which I have already referred are sufficient authority for that. 

Any exception to this rule is to be in terms which are necessary to avoid frustration, futility or impediment. 

It is, as I have said, an issue here that jurors might take into account information acquired outside the trial as to the matters canvassed in the evidence which is being used to justify the order under s 258.  That it might be inferred for purposes of the argument, could predispose a juror to a view or lead to a juror acting on material which was not in evidence at the trial.

The potential for jurors to acquire and act on information in this way is well recognised; there is for example provision to challenge for cause.  Jurors are instructed that they are to be impartial and to act only on the evidence received in the course of the trial.  They are prohibited from making their own enquiries or acting on material outside the evidence and the fairness of these requirements is explained to them.  Absent evidence to the contrary it is to be assumed that jurors act impartially and act on the evidence.

It is also relevant to note that as yet there have been no committal proceedings and that any trial by jury is some distance in the future. 

I note also that contempt proceedings may be available against those who might in the future jeopardise a fair trial.  If the circumstances at the time justify it there may be a stay of proceedings based on such considerations. 

It seems to me however that given the situation as it presently stands a departure from the general rule of the openness of proceedings is not justified and I therefore refuse the application for suppression.