It is important that police officers and others working within the criminal justice system are not perceived as receiving preferential treatment in the application of the principle of open justice or exempt from the rationales that underpin it.WA Police officers Gareth Hopley and Leigh Jezewski had applied for an extension of suppression orders pending the hearing of appeals from the 12 November 2013 decision of Eaton DCJ refusing to extend suppression orders made in criminal proceedings against Hopley. Jezewski was a witness for the prosecution in those proceedings, which concerned a charge of dangerous driving causing death. Hopley was driving a police car in the course of his duties; Jezewski was a passenger. Both were members of the police 'gang crime squad' at the time.
In May 2012 Hopley appeared in the Magistrates Court, entering a plea of not guilty and gaining a suppression order to the effect that there be no disclosure or publication of his name or of other matters likely to lead members of the public to identify him until further order.In April 2013 the Chief Judge directed that the order made by Magistrate Mignacca-Randazzo remain in force unless set aside by the District Court.Six months later Schoombee DCJ, on Jezewski's application (unsupported by affidavit) made a suppression order in the witness' favour. West Australian Newspapers and Channel Seven Perth indicated prior to Hopley's trial beginning 4 November 2013 that they wished to be heard in relation to the suppression orders. Eaton DCJ, the trial judge, varied both suppression orders to extend until 13 November 2013.
Importantly, Hopley's trial proceeded in open court.
On the morning of 5 November 2013 the first appellant filed an application under s 171(4) of the Criminal Procedure Act 2004 (WA) (the CPA) supported by an affidavit sworn by him on 4 November 2013, for orders that: 1. Except where otherwise ordered all persons not associated with the matter be excluded from the court during the hearing of this application; 2. The name and any image of the accused be prohibited from publication outside of court; and 3. Any matter likely to lead to the accused's identification be prohibited from publication outside the court.
Also on the morning of 5 November 2013, counsel for the State handed up an application by the second appellant seeking orders in the same terms as the first appellant. However, there was no affidavit in support of that application. The trial judge adjourned both applications until 9.15 am on 6 November 2013.
On the morning of 6 November 2013 counsel for the Commissioner of Police (Mr J Bennett) handed up an application by the Commissioner seeking broader suppression orders than that sought by the first appellant. That application was supported by an affidavit sworn by the second appellant on 6 November 2013. Both applications were heard by the trial judge on that date. He reserved his decision.
After the hearing on 6 November 2013, the second appellant filed an application for suppression in substitution for the application made by the Commissioner of Police and sought narrower relief. The second appellant sought an order prohibiting the publication of any part of the evidence at trial relating to the identity and images of the second appellant and any information which would reveal his identity, rank, origin and present location within the West Australian police force and the grounds on which the court made the orders.Eaton DCJ handed down his decisions on 12 November 2013. He was not satisfied that it was in the interests of justice to grant either application, both of which were dismissed. He proposed to order that the existing suppression orders be cancelled forthwith. Hopley and Jezewski foreshadowed an appeal to the WA Supreme Court and indicated that they would seek an interlocutory extension of the suppression orders pending the determination of the appeal.
McLure P notes that
the trial judge inferred that the work of the appellants on a day-to-day basis as members of the gang crime squad brought them regularly into face-to-face contact with members of motorcycle gangs. He said it was clear that the appellants knew gang members in the sense that they readily recognised those known to them and it was equally clear that they would, as officers of the gang crime squad, have been known by gang members and readily recognised by them as being police officers and members of the gang crime squad at the relevant time.
Based on the second appellant's affidavit the trial judge said it was clear that the second appellant had been recognised as a member of the gang crime squad even when socialising with other squad members. He and other squad members had left licensed premises because they were being heckled by gang members. The trial judge inferred that the gang crime squad was not a covert squad and that the relationship between the gang crime squad and gang members was a tense one. The trial judge observed that it would not be unusual for police officers to be threatened by people in the course of their duty and there was no evidence that the second appellant or police authorities had taken any steps to minimise any perceived risk to him arising from his involvement in the criminal proceedings, he having been aware for the previous 18 months that it was likely he would be required to give evidence at trial.Not much secrecy, in other words.
McLure went on to note that
The first appellant's affidavit sworn on 4 November 2013 in support of his application was, according to the trial judge, in almost identical terms to his affidavit in support of his application for a suppression order in the Magistrates Court in May 2012. The trial judge was very critical of its scope. It offered very little about the first appellant's work circumstances after he was charged with dangerous driving causing death and contained no information as to the organisation or constitution of the gang crime squad. The court was not provided with affidavit evidence as to how and why the first appellant's duties were reallocated after he was charged with the offence. ... The trial judge noted from the first appellant's affidavit that his involvement in the incident giving rise to the criminal charge was known to motorcycle gang members since early May 2012. The trial judge continued:
Being in close proximity to gang members is part of the [gang crime squad's] modus operandi. Tension between the squad and the gangs is likely to be inevitable. It cannot be the case that mere membership of the squad would lead to the making of a suppression order in every case involved in the evidence of a squad member. Equally, it cannot be the case that mere membership of the [TRG] would lead to the making of a suppression order in every case involving the evidence of a group member.
There was also evidence that from time to time, members of the gang crime squad were removed from the squad for their safety by those in the force responsible for the deployment of police officers. No such action had been taken in relation to the appellants.
The trial judge concluded:
In referring to West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10 McLure P quoted the statement by Owen JA thatI am far from satisfied that the publication of [the second appellant's] name will endanger State or national security or will compromise any operation currently being undertaken by the [TRG]. I am far from satisfied as to the quality of the evidence offered in support of both applications by reason of the various matters already mentioned by me. I am not satisfied that it is in the interests of justice to grant either application.
The principle of open justice is a significant element within the proper functioning of the justice system. It promotes veracity of testimony by encouraging attention among those involved in a case to the seriousness of the judicial process. Publicity may cause (or encourage) others with relevant information to come forward. It increases the community's appreciation of the methods of government and confidence in judicial remedies. It also ensures that the fairness, integrity and efficiency of the courts, and its administrators, are subject to public scrutinyOn that basis it is only in exceptional circumstances that courts depart from the principle of open justice by prohibiting publication of the name or identity of a witness in criminal and other proceedings. "Mere embarrassment, distress, loss of privacy or shame if the identity of the witness were revealed is not sufficient".
Procedure matters. McLure P states that
As in WAN v WA, the second appellant was named and gave evidence in open court. The first appellant was named and present in open court. In the circumstances of this case, those factors told against the appellants' claim that suppression orders were necessary to protect the appellants against the risk of physical harm from motorcycle gang members. Any gang member with malign intent would have had little difficulty in obtaining the identifying details of both appellants.
However, there is a more fundamental objection. The evidence before the trial judge and this court fell well short of establishing that failure to make a suppression order would result in any realistic risk of physical harm to the appellants or their families over and above any risk flowing solely from their position as a member of the gang crime squad. The criminal proceedings did not involve any claim against or involving any gang member. In short, I agree with the trial judge's evaluation of the affidavit evidence.
As to the second appellant's recent move to the TRG, the covert work is identified as including the protection of undercover officers involved in drug transactions, arresting the 'target' once a drug transaction is complete, and assisting in witness protection. The work is covert in the sense that officers do not wear or use equipment that identifies them as a police officer. In essence, the claim is that mere membership of the TRG justifies the making of a suppression order. The second appellant swore that if his identity was made public 'then this may compromise my involvement in any current undercover operation as I am more likely to be identified as a police officer'. Having regard to his very short time in the TRG, I am not persuaded that his assessment of what may or may not happen is reliable. Further, the second appellant had been a uniformed police officer with face-to-face contact with motorcycle gang members which did not seem to be an impediment to his covert operations. In any event, any exposure resulting from the criminal proceedings would have a time limited effect. The second appellant's circumstances do not justify a departure from the principle of open justice.
