PORTER v WALLER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, MAHONEY and PRIESTLEY JJA 13 July 1989 [1989] NSWCA 168 Gleeson CJ and Mahoney JA It is alleged that on 24 April 1989 John Albert Porter, the appellant in these proceedings, shot a police officer, Constable McQueen who subsequently died. On 27 April 1989 police officers searching for Mr Porter forced entry to the residence of the late Mr Gundy and, shortly thereafterwards, Mr Gundy was fatally wounded. On 3 May Mr Porter was arrested in Queensland and was charged with the murder of Constable McQueen. At about the same time an inquest into the death of Mr Gundy was formally commenced. This Court has been informed that a jury has been empanelled for the purpose of that inquest and that the hearing will commence following the termination of proceedings in this Court. On 3 July Mr Porter was committed for trial. In the ordinary course - and in the absence of the making of any order for expedition - the trial of Mr Porter would commence in late 1989 or early 1990. The inquest is expected to last for a period between four and six weeks. On 10 July application was made to Smart J in this Court for an order prohibiting the Coroner, Mr Waller, from embarking upon the Coronial Inquest into the death of the late Mr Gundy or, alternatively, for an order that the Coroner and the Director of Public Prosecutions be restrained from adducing and receiving any evidence concerning the appellant or the police perception of the appellant during such inquest. The basis of the application was that it was apprehended that there would emerge during the inquest material relating to the appellant which would not normally be admissible at his trial for murder and that such material would prevent, or at least substantially impede, his fair trial. Further it was contended that the proceedings at the inquest were likely to receive a great deal of media coverage and that such coverage was likely to extend over the whole of the period of the inquest. No attempt was made, either by evidence led before Smart J or in this Court, to measure the extent of publicity which has already been given to matters concerning the appellant or the deaths of Constable McQueen and Mr Gundy; nor has any attempt been made to quantify the extent to which any material likely to be led in the Coronial Inquest will add to whatever information, possibly prejudicial to the appellant, might already be abroad in the community. Smart J declined to make an order to the effect that the inquest should not proceed at this stage, although his Honour did give the appellant leave to apply on one hour's notice for further relief and to reapply if a substantial risk of grave injustice to the appellant should emerge. His Honour did not have before him all parties who are represented before this Court and indeed one of the orders made was that certain persons now represented should be added as parties to the proceedings. That tends to emphasise the somewhat interim nature of certain of the orders made by his Honour. 2 UNREPORTED JUDGMENTS Notwithstanding that his Honour was not prepared to make the orders sought by the appellant, he did make certain orders apparently designed to give a measure of protection to the appellant and they were in the following terms: "(3) As to the application in this court the name of the plaintiff shall not be published and further in relation to this application no material be published whereby the plaintiff can be identified. (4) When reporting this judgment the media should not identify the plaintiff as the man who shot Constables McQueen and Donnelly but simply as a man committed for trial on serious offences. (5) The police brief on the plaintiff's committal hearing and the brief of senior counsel at the Inquest not be published." Nobody has been able to explain to this Court the origin of O.5. How it might come about that briefs should ever be available to be published is far from clear. No party before this Court desires to support that order. As to orders (3) and (4), in my opinion they should be discharged. It is no light matter for the Court to make an order suppressing the identity of parties to proceedings before it. There is no evidence before the Court to support the proposition that the appellant is not already widely known as the person who is alleged to have shot Constables McQueen and Donnelly. The public has an interest in the free flow of information concerning court proceedings and concerning matters of the seriousness of the events surrounding the deaths of Constable McQueen and Mr Gundy. In my view the orders made in pars 3 and 4, to which I have referred, were not warranted and should be discharged. Iam content to deal with the main issue in the case upon the assumption that this Court has jurisdiction to intervene in the manner contended for by counsel for the appellant. That jurisdiction includes, but is by no means limited to, the Court's supervisory jurisdiction over coroners. In addition the Court has a wider jurisdiction to take steps necessary to secure the due administration of justice and in particular, to secure the right to a fair trial of a person who has been committed for trial in this Court. At the same time it is important to bear in mind that both public and private interests are involved in the due and expeditious conduct of the inquest into the death of Mr Gundy. This was recognised by Smart J and I have nothing to add to his Honour's reasons for judgment on that point. It is also important to bear in mind that the power of the Court to take appropriate measures to secure Mr Porter's right to a fair trial subsists and can be invoked at any time. In addition, the Coroner himself will have power under s44(1)(b) of the Coroners Act to make an order that any evidence given at the inquiry or inquiry being held by him be not published. No application has so far been made to the Coroner to exercise that power and these proceedings are not brought because of any complaint about any decision of the Coroner in relation to that section. If an application is made to the Coroner under that section it will be for him to decide, having regard to all relevant considerations, how he exercises his power. There is no occasion for this Court to anticipate the manner in which he may make that decision. A part from any other considerations this Court does not have available to it the facts which will be before the Coroner when he comes to perform his functions. There is certainly no reason to assume that the Coroner will not exercise his powers with complete propriety. There is another aspect of the matter which needs to be mentioned. It is almost inevitable that the inquest will be accompanied by widespread publicity. This is a case in which there is a legitimate public interest in the publication of matter relevant to the death of the late Mr Gundy. The word "interest" is not to be URJ PORTER v WALLER (Gleeson CJ and Mahoney JA) 3 equated with the word "curiosity". Interest of that kind is legally relevant. This, as I have said, is a case in which there is a legitimate public interest in the free flow of information concerning matters of the kind which will be ventilated at the inquest. Nevertheless the Coroner would have power, as he sees appropriate, under s44 to take steps, if necessary, to protect the position of the appellant and others. It is not infrequent that cases arise where people accused of serious crime come for trial after there has been widespread publicity concerning matters connected with them or the events the subject of the trial. Whilst the courts are astute to protect the right to a fair trial of an individual, and have available to them a variety of mechanisms to enable that end to be achieved, it must nevertheless be recognised that it will sometimes be impossible for people to be brought to trial without there having been publicity of the kind to which I have referred. This problem was recently adverted to by the High Court of Australia in the case of Murphy v The Queen in which the Court delivered judgment on 30 May 1989. In their joint reasons for judgment in that case, Mason CJ and Toohey J said: "Tt is fundamental that, for an accused to have a fair trial, the jury should reach its verdict by reference only to the evidence admitted at trial and not by reference to facts or alleged facts gathered from the media or some outside source. However, the might of media publicity in 'sensational' cases makes such a pristine approach virtually impossible. Recognising this, the Courts have used various remedies such as adjournment, change of venue, severance of the trial of one co-accused from that of the others, express directions to the jury to exclude from their minds anything they may have heard outside the courtroom and the machinery of challenge for cause. It may be that in a particular case none of these remedies will be fully effective. But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appealing The Queen v Hubbert: "In this area of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select twelve jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict ac cording to the evidence.' It is now just over a hundred years since Waite CJ commented in Reynolds v United States: "In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely anyone can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect of its merits.'" Those passages, which were quoted with approval by the Chief Justice and Toohey J are, in my view, apposite to the circumstances of the present case. Smart J apparently regarded it as appropriate to make a certain recommendation to the Magistrate which was to the effect that should the Coroner propose to allow the name of the plaintiff to be published then, prior to allowing such publication, he should afford the plaintiff an opportunity to apply to this Court on three hours notice. I would not support the making of a 4 UNREPORTED JUDGMENTS recommendation of that kind. As I have already indicated there is no reason to believe that the Coroner will not conduct his proceedings with complete regularity and due regard to the interests of the appellant. For my part, I have no doubt that the Coroner will take whatever steps are necessary and appropriate to protect the appellant's position and I see no reason why that recommendation should go forward with him. Accordingly, I would propose that the orders numbered (3), (4) and (5) made by Smart J be discharged. Otherwise the appeal should be dismissed with costs. Priestley JA I agree with what the Chief Justice has said. The power that is invoked is, I think, properly to be seen as the power of this Court to prevent an interference with the course of justice in the pending murder trial. The allegation is that the inquest will interfere with the course of justice by making that murder trial either unfair or less fair. It is not every interference with the course of justice which will produce an intervention by this Court. It is necessary that the interference which, in the result, occurs is of such moment as to produce intervention by this Court. What will happen in the present matter cannot, I think, be known or known with sufficient certainty. It will, as the Chief Justice has said, depend upon what the Coroner will do in relation to the matter here in question when, as it may be, an application is made to him on behalf of the present appellant. It will depend upon what this Court may do before or during the course of the murder trial and it may be affected by what those outside the court system may see fit to do in reporting the material at the inquest. I am not satisfied that it has been shown in this case that what will happen or is apt to happen will interfere with the course of justice at least to an extent that would warrant the serious course of interfering at this stage with what can be done either by the Coroner at the inquest or those outside the Court in relation to the discussion of it. I agree with the orders which the Chief Justice has proposed. The orders numbered (3), (4) and (5) made by Smart J should be discharged. Otherwise the appeal should be dismissed with costs.