. ,5OR CATCHWORDS PRACTICE AND PROCEDURE - application by Director of Public Prosecutions for order forbidding publication of name of applicant and of evidence or particulars of proceedings which might identify the applicant - contention that publicity may have etfect prejudicial to trial of three others - whether prejudice to the administration of justice ~ whether wide enough to 1nclude the possibility of prejudice to other proceedings. - Federal Court of Australia Act 1976 ss.17, 50. Lloyd v. Costigan (1983) 48 A.L.R. 241. Australian Broadcasting Commission v. Parish (1980) 29 A.L.R. 228. Neil Harry Mark FORSYTH v. Philip John RODDA & Anor. No. VG 297 of 1986 John Michele VEREKER & Ors. v. Philip John RODDA & Anor. No. VG 296 of 1986 Jackson J. Melbourne 10 November 1986 IN THE FEDER COURT OF AUSTRALI VICTORIA DISTRICT REGISTRY GENERAL DIVISION BETWEEN : No. VG297 of 1986 NEIL HARRY MARK FORSYTH Applicant PHILIP JOHN RODDA BETWEEN : and RICHARD DENIS O'DONOVAN Respondents No. VG296 of 1986 JOHN MICHELE VEREKER, JACKSON J. 10th November 1986 Melbourne IAN DOUGLAS SWANSSON, JOHN TERRENCE BROWN, LESLIE EDWARD LITHGOW and STEPHEN GERARD CONNELL Applicants and PHILIP JOHN RODDA and RICHARD DENTS ©' DONOVAN Respondents rom So rence as " |. a we eT MINUTES OF ORDER THE COURT ORDERS THAT: l. NOTE: The application be refused. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION ~ eevee No. VG297 of 1986 NEIL HARRY MARK FORSYTH Applicant PHILIP JOHN RODDA BETWEEN : AND: ' BETWEEN : CORAM: JACKSON J. DATE: 10th November 1986 PLACE: Melbourne and RICHARD DENIS 0' DONOVAN Respondents No. VG296 of 1986 JOHN MICHELE VEREKER, TAN DOUGLAS SWANSSON, JOHN TERRENCE BROWN, LESLIE EDWARD LITHGOW and STEPHEN GERARD CONNELL Applicants and PHILIP JOHN RODDA and RICHARD DENIS 0' DONOVAN Respondents sarees St et ie balan a ee er eee 4 ve ~ moe ' ye a a Z oe . Bye peo -2- REASONS FOR JUDGMENT §.17(1) of the Federal Court of Australia Act 1976 states the general proposition that the jurisdiction of the Federal Court shall be exercised in open court but provisions of the Act also make 1t apparent that there may be statutory exceptions to the generality of that proposition. One of the exceptions 1s that contemplated by s.50 of the Act, which provides that:- "50. The Court may, at any time during or after the hearing of a proceeding in the Court. make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth." I am asked in the present cases by counsel for the Director of Public Prosecutions to make orders:- "L, That publication of the name of Mr. Neil Harry Mark Forsyth, the Applicant herein be forbidden. 2. That the publication of any evidence or of any particulars of the proceedings herein which might identity Mr. Neil Harry Mark Forsyth as a party to the application or as a person in any way involved in the matters which are the subject of the applications be forbidden. 3. That there be such further Orders as the Court deems meet." and the essential ground on which the application is based 1s that the publicity arising trom the present proceedings and which may be given to the charge against Mr Forsyth, may have --*, Ege pe eer eros tag vd . . me or iaeet om 3 Ds cercetee ge ene ' Spree ee . ff . . ~3- an erfect prejudicial to the trial of three persons, Collie, Edwards and Grant, whose trial 1s listed to commence in the Supreme Court of Victoria 1n mid January 1987. The accused are charged with offences of conspiracy to defraud the Commonwealth and conspiracy to evade the enforcement of a Law of the Commonwealth. The trial of the same three persons had earlier commenced 1n the Supreme Court of Victoria on 3rd April 1986. On the next day and during the opening of the case for the prosecution, there appeared in the "Age" an article reporting some of the submissions of senior counsel for Mr Forsyth at committal proceedings which are the subject of the application for review before me. In consequence ot the publication of that matter, the Judge presiding at the time thought it appropriate to discharge the jury, Mr Forsyth's role in giving an opinion, or opinions, being said by counsel to have made him in some ways "a very central figure in this trial". The contention before me is that in terms of s.50, it 1s necessary "in order to prevent prejudice to the administration of justice"=namely prejudice to the conduct of that trial~to make orders of the nature presently sought. I accept, as did Toohey J. in Lloyd v. Costigan (1983) 48 A.L.R. 241 at 243-244 that the expression "prejudice to the administration of justice" is sutficrently wide to 77> ; , woe < mor TRS TO es prc or ye ee eee Pr + cm -4- 1nclude the possibility of prejudice arising in relation to proceedings other than those immediately before the Court. Nonetheless I take the view that the present applications should be refused. I am not satisf1red that there 1s a real possibility of prejudice to the trial of the three accused in question by declining to make an order of the nature sought. It 1S commonplace in the administration of criminal justice that juries are told that they must decide cases on the basis of the evidence before them, and that they must not take into account what they may have read about cases elsewhere. I see no reason, in the material now before me, why the case could not be dealt with in the same way. The circumstances in the earlier trial in the Supreme Court no doubt gave rise toa different result because of the particular circumstances with which the Judge was then faced, including the time at which the publication occurred. As Bowen C.J. said in Australian Broadcasting Commission v. Parish (1980) 29 A.L.R. 228 at 234, the underlying assumption upon which s.50 1s based 1s that of open justice. That assumption may not be capable of being carried into execution in some cases but, as matters stand, this does not appear to me to be a case where 1t is not capable of being carried into execution. I refuse the application. a -5- e , I certify that the 4 preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Jackson. Associate: Diwherclhrtery . nia Date: 1O November 1986 No. VG 297 of 1986 Counsel for the applicant Solicitor for the applicant. Counsel for the respondent/ applicant: Solicitors for the respondent/ applicant: No. VG 296 of 1986 Counsel for the applicant: Solicitor for the applicant: Counsel for the respondents/ applicants: Solicitors for the respondents/ applicants: Date of hearing: R. Richter Q.C. & J. Rapke Director of Public Prosecutions P.d. O'Callaghan, R. Finkelstein & A.J. Howard Messrs Arthur, Robinson & Hedderwicks R. Richter Q.C. & J. Rapke Director of Public Prosecutions J.G. Judd Messrs Phillips Fox 10 November 1986 ITE Iw woe