The Queen v Davis, G.D. [1995] FCA 529

CATCHWORDS CRIMINAL LAW - Application for permanent stay of committal proceedings - Fourteen charges of indecent assault against medical practitioner - Assault said to have occurred during the course of medical examinations - Charges relate to consultations that occurred in period 1960 to 1974 inclusive - Accused now retired from practice - Patient records destroyed - Relevance of fact that Court has declined to stay Medical Board investigation - Likelihood of prosecution failing to negative consent in some cases - Special prejudice caused by loss of medical records - Stay order upheld. PRACTICE AND PROCEDURE - Application to restrain publicity - Importance of public hearing of matters before the Court - Whether a special case for a restriction on reporting was shown. THE QUEEN v. GEOFFREY DAVID DAVIS No. ACT G18 of 1995 CORAM: WILCOX, BURCHETT & HILL JJ PLACE: CANBERRA DATE: 23 JUNE 1995

IN THE FEDERAL COURT OF AUSTRALIA) No. ACT G18 OF 1995 AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: THE QUEEN Appellant AND: GEOFFREY DAVID DAVIS Respondent CORAM: WILCOX, BURCHETT & HILL JJ PLACE: CANBERRA DATE: 23 JUNE 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) No. ACT G18 OF 1995 AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: THE QUEEN Appellant AND: GEOFFREY DAVID DAVIS Respondent CORAM: WILCOX, BURCHETT & HILL JJ PLACE: CANBERRA DATE: 23 JUNE 1995 REASONS FOR JUDGMENT THE COURT: Geoffrey David Davis, the respondent to this appeal, applied to the Supreme Court of the Australian Capital Territory for an order permanently staying 14 charges brought against him by the Director of Public Prosecutions in the Magistrates Court of the Territory. The application was heard by Gallop J and granted. The Director now appeals against that order. The course of the proceedings The appeal came before Lockhart J at a call-over on 17 March 1995. His Honour was informed that a confidentiality order had been made in the Supreme Court, precluding publication of Dr Davis' name and also of the names of the complainants. He was asked to make a similar order in respect of the proceedings in this Court and did so. When the matter was called for hearing before us on Monday last, a journalist employed by ABC Radio applied to the Court for a variation of Lockhart J's order, so as to enable the publication of Dr Davis' name, but not that of the complainants. Mr G J D Richardson SC, counsel for the Director of Public Prosecutions, expressed neutrality on the application but it was opposed by Mr K Horler QC, counsel for Dr Davis. Mr Horler referred to the likelihood that, if the variation were allowed, there would be media publicity about the case in which his client was named. He said that this publicity could have a prejudicial effect upon a jury if the appeal succeeded and his client was put on trial. He submitted that if, contrary to his primary argument, the Court was disposed to interfere with Lockhart J's order at all, it ought to abrogate it entirely, thus allowing publication of the complainants' names as well. At the conclusion of argument on the application, we indicated our opinion that it should be granted and we made an order in the terms sought; that is, we varied the order of Lockhart J so as to permit publication of Dr Davis' name but not those of the complainants. We said we would give reasons later. We now do so. It seems that, even without disclosure of the respondent's name, this case has attracted media interest. Especially under those circumstances, we accepted the virtual certainty that, if we granted the application, Dr Davis' name would be reported in the media. The Canberra community is relatively small and we accepted the probability that some of the jurors (if not all of them) who were eventually empanelled to try these charges, if any went to trial, would read or hear any fresh media report and remember Dr Davis' name. Under those circumstances, there would be a possibility of one or more jurors being influenced by the report. However, that statement may be made in relation to any case. In Canberra as elsewhere, the media habitually report pre-trial proceedings, including evidence given in committal proceedings. Whatever their motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them. This includes the names of the parties to proceedings, which are ordinarily known to everyone in court. There are a few exceptions to this general principle. One exception concerns people claimed to be victims of crime; particularly sexual offences. Most, if not all, Australian legislatures have enacted legislation providing anonymity to some such people. They did so, presumably, because their members felt that publication of those peoples' complaints or evidence might seriously affect their lives, whatever the outcome of the proceedings. The legislatures apparently made the judgment that, notwithstanding the public interest in freedom to report court proceedings, this consideration justifies suppression of complainants' names in many sexual assault cases. We felt we should take this community attitude into account in determining whether to allow the complainants' names to be published. There being no special circumstances requiring a departure from the general rule, there was no justification for permitting publication of the complainants' names in this case. However, the position is different in relation to the names of persons charged with criminal offences. In that area there is no general rule or practice in favour of suppression. In some jurisdictions, there is some legislation to this effect; but in most Australian jurisdictions, including the Australian Capital Territory, names may be reported. Of course, this situation comes at a price. In the case of an innocent person, that price may be great. At the same time, publicity has occasionally caused undiscovered witnesses to come forward, a matter which should not be overlooked where names are suppressed, whether of an accused or, indeed, of complainants. In a case where a jury trial follows publicity, nobody could doubt that jurors sometimes come to court with a recollection of a media report naming the accused and a preconceived idea about the case, even about the accused person's guilt or innocence. This is why judges routinely instruct jurors to put media reports out of their minds and to decide the case only on the basis of what they hear and see in court. We cannot know to what extent jurors heed this instruction; but the system assumes that they do. Whether or not there should be a general change in the rules regarding pre-trial publicity is not for us to determine. Momentous issues are involved. If there is to be a change, this should occur only after widespread public debate. Mr Horler assumed the existence of the normal rule but argued this was a special case. We did not think it was. Even if Mr Horler was correct about the manner in which this proceeding will be reported by the media, and about the possibility of jurors remembering any reports, we felt there was nothing special about those facts. Accordingly, there was no warrant for departing from the general rule that an accused person's name may be published. A second application was made, this time by Mr Richardson on behalf of the appellant. He asked us to admit into evidence an affidavit that had been tendered to Gallop J but rejected by him. The affidavit was made by Dr Patricia Easteal of the Australian Institute of Criminology. It detailed results of a national survey on sexual assault conducted by the Institute in 1992; in particular, it highlighted the high proportion of sexual assaults that are not reported to police, or not reported for a very long time. We did not immediately rule on the tender but, having given the matter consideration, we now indicate that we are not prepared to use it as evidence. There are problems about this type of survey material being used as evidence of the facts. However, our decision to reject the affidavit is of no practical importance. We are aware of Dr Easteal's point. Indeed Wilcox J made the same point in a judgment delivered just before the hearing of this case, The Queen v Lane (19 June 1995, Wilcox, Ryan and Higgins JJ) when he said: "Both the everyday experience of criminal courts and the reported cases demonstrate that it is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child. Without saying anything about the facts of this case, which have not been investigated, it seems that many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delay simpliciter justifies a stay of criminal proceedings would be to exclude many offences, particularly offences against children, from the sanctions of the criminal law." We have approached the present case on that basis.