Gonzalez v Director of Public Prosecutions & Ors [2003] NSWSC 449

New South Wales Supreme Court

CITATION : Gonzalez v Director of Public Prosecutions & Ors [2003] NSWSC 449 revised - 27/05/2003 HEARING DATE(S) : Friday 23 May 2003 JUDGMENT DATE : 23 May 2003 JURISDICTION: Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : Exhibit A returned to the Crown.

CATCHWORDS : EVIDENCE - CURRENT PROSECUTION - POSSIBLE EFFECT OF PRE-PUBLICATION OF CONTENT OF WITNESS STATEMENTS - ORIGINAL LIMITED PURPOSE OF TENDER CASES CITED : Attorney General v Mirror Newspapers 1981 NSWLR 374 Esso Australia Resources Ltd v Plowman 1995 183 CLR 10 PARTIES : Sef Gonzalez v Director of Public Prosecutions, John Fairfax Publications and Nationwide News Pty Limited FILE NUMBER(S) : SC 12955/02 P. Kintominas (Plaintiff) COUNSEL : G. Smith (First Defendant) D. Sibtain (Second and Third Defendants) Benjamin & Khoury (Plaintiff) SOLICITORS : S.E. O'Connor (First Defendant) Freehills (Second and Third Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Friday 23 May 2003

12955/02 - SEF GONZALEZ v DIRECTOR OF PUBLIC PROSECUTIONS & ORS

JUDGMENT (Re application for return of Exhibit A)

1 HIS HONOUR: The background of the matter presently before the court is to be found in proceedings on the 13th of this month in respect of which judgment has already been delivered. 2 At the hearing there was an invitation by counsel for the Plaintiff for the Crown to outline the Crown allegations against the Plaintiff, who is accused of committing three murders. In response to that invitation a very substantial document was produced. It is entitled "An Outline of Crown Allegations" but it obviously conveys far greater detail than would have been necessary for determination of any issue before the court as background information relevant to certain suppression orders. 3 The transcript of the 13th May shows that the Crown expressed some concern about the sensitivity of the document and its content, and what occurred was that counsel for the Second and Third Defendants gave an undertaking not to further distribute a copy which was given to him on that occasion for the purposes of the litigation. 4 There is now before the court a motion by both the Crown and the Plaintiff seeking that Exhibit A be returned and if necessary, an order be made to ensure that there is no further publication of its content. I accept, of course, the assurance of Mr Sibtain of counsel for the Second and Third Defendants that he has not in fact copied the document and there is in his possession only the single copy provided to him on 13th May. 5 The Second and Third Defendants opposed the order and draw attention to the statement by Mason CJ in Esso Australia Resources Limited v Plowman 1995 183 CLR 10 @ 32-33, where his Honour observed that once material is adduced in evidence in court proceedings it becomes part of the public domain unless the court restrains publication of it. The concern expressed on the part of the moving parties relates to what, in general terms, has been called sensitivity. 6 I do not think it necessary for present purposes to detail all of the lengthy content of the document. There is considerable detail of the anticipated evidence of a large number of witnesses. In particular, there are descriptions of the acquisition of material and statements from persons relating to what the Crown apparently will allege are attempts to construct a false alibi. There are also other matters which again might be anticipated to be given by witnesses whose situation is such that it is a fair comment to describe them as persons of some vulnerability. 7 In support of the application, my attention is drawn to the decision in Attorney General v Mirror Newspapers 1981 NSWLR 374. On other aspects, this was a decision referred to in the judgment already delivered. Obviously that was a case in which contempt was being dealt with but it seems to me that a consideration which ought be undertaken at present is whether or not the possibility of contempt, by a publication having the effect upon potential witnesses, should be avoided. 8 Mr Sibtain has argued that there is no evidence of serious threat, nor any question of what parts of the document might be the subject of general publication by his client in the event that no special order was made. Therefore, he argues, there is no imminent risk that should be found by the court. It seems to me, however, that the jurisdiction in these particular circumstances can be exercised to avoid possibility as well as to meet imminent risk. Attorney General v Mirror Newspapers points to the recognition of the effects of publication upon witnesses. The Bench in a joint judgment made many observations of the risks, some of which I would categorise as potential or possible risks in the present. They include the circumstance that witnesses, having read any publication, might give evidence of greater or lesser cogency or completely different from evidence which they otherwise would have given. That is but one example of the practical matters that their Honours refer to, particularly at pages 387 and 388 of the report. 9 Taking those matters into account, I am also of a view that it is appropriate to weigh in the balance the circumstance that the only purpose of the tender was to provide the court with an appropriate sketch of the background facts, so as to enable judgment to be delivered upon the issue (already determined) concerning what I might call total suppression of identity in relation to a particular charge. In the course of argument it was pointed out that, had the current matter been ventilated at the time, it would have been entirely appropriate for the Crown to refrain from this tender and tender an abbreviated document which, if I might say, would have been far more suitable to the occasion. I do not think that a conclusion that there may have been some error, even of a tactical nature if I may so describe it, in tendering this very full document, provides a reason for leaving it in the public domain. As with all such matters, a question of balance is involved. 10 Even in the absence of specific or imminent risk, the need to avoid the possibility of inappropriate use of the material contained in the document, whether deliberately or inadvertently, is such that the order sought on the current motion should be granted. Accordingly, I direct that Exhibit A be returned to the Crown. 11 I note that the copy held by Mr Sibtain is returned to the Crown and he is accordingly released from his undertaking. **********