A procedural hearing on Tuesday hinted at Nettle J’s views on open justice in Victoria, an issue that has been recently debated in The Age. The matter concerns an effort by two police officers who are potentially facing criminal charges for misconduct to stop IBAC (Victoria’s anti-corruption commission) from publicly examining them about that misconduct. The pair’s argument, which rests on recent High Court decisions on whether Australian statutes allowing people to be compulsorily examined on matters that tend to incriminate them must give way to fundamental principles of accusatorial justice, failed in Victoria’s Court of Appeal late last month. The pair now wish to appeal to the High Court and Nettle J was asked to decide two urgent questions ahead of their application for special leave to appeal.

One issue was whether the pair could be named publicly ahead of the special leave application. Their counsel, David Grace QC, told Nettle J that five Victorian judges had readily prohibited publication of the pair’s names under Victoria’s Open Courts Act as their case preceded through the Victorian courts. Last week, an editorial in The Age, citing research by Melbourne Law School’s Jason Bosland, condemned the continuation of a ‘culture of suppression’ in those courts:

The Age believes too many suppressions are being issued on relatively weak grounds and this is occurring in the absence of a third-party contradictor, such as the media, who might argue for the matter to remain open. This is anathema to open courts.

This prompted an angry response by Victoria’s Chief Justice, Marilyn Warren:

Suppression orders are made to protect the administration of justice. To suggest, as The Age has, that courts make orders without justification, even casually, is wrong. It undermines confidence in, and respect for, the judiciary. No suppression order issued in Victoria’s Supreme Court is made without a valid reason.

But Nettle J on Tuesday seemed to have doubts about the grounds for the orders that had been made in the case before him and Grace, admitting that no-one (including IBAC) had opposed them below, was left to emphasise that ‘to date there have been six judges of the Supreme Court of Victoria – or perhaps it is five – who have determined that it is appropriate’ to make them. Justice Nettle ultimately granted the orders, but his views on whether or not his former colleagues in Victoria’s Supreme Court grant such orders too easily seem closer to The Age‘s than Warren CJ’s:

As it appears to me, a considerable period of time is likely to elapse before any decision is made whether either applicant should be charged with any offences arising out of the activities the subject of the respondent’s proposed examination of the applicants, and if either applicant is then charged there is likely then to be a very considerable further period of time before the matter comes to trial. In those circumstances, I was inclined to think that any unfavourable impression resulting from publication of the applicants’ names at this stage of the proceeding would be so much diminished by the time of trial as not substantially to prejudice either applicant’s right to a fair trial.
Senior counsel for the applicants, however, has urged on me the view that, if the identities of either applicant were published at this stage of the proceeding, it would then be open to the press to identify the applicants with the allegations detailed in the judge at first instance’s reasons for judgment and that the possible effects of that upon the minds of potential jurors would be such that, regardless of what might be done by a trial judge at a later time, the right to a fair trial would be prejudiced.
In the absence of any opposition to those submissions, and assuming as I do that the press do not regard the matter as sufficiently important or significant to warrant opposition, I am prepared to make a non-publication order until the hearing and determination of the special leave application or further order.

The other question before Nettle J was whether IBAC can go ahead with their planned public examination of the pair before their special leave application is heard (effectively rendering their appeal moot.) Last week, two Victorian judges refused  to bar IBAC from doing so, citing the matter’s lack of ‘significant prospects of success’ in the High Court. However, Nettle J revealed that the Court could accommodate an expedited special leave application as soon as next month and asked whether IBAC could wait until then. IBAC’s counsel Ted Woodward SC explained that his client  ‘has been a little bit more difficult, if I could put it that way, in accommodating the application’ to date because of the delays so far and the pair’s lack of success so far but added that the Commission ‘will arrange its affairs to enable the matter to be deferred’ again. Asked what this meant, Woodward said it was not an ‘undertaking’ but rather an ‘assurance’, prompting the police to drop their request for an injunction against IBAC. This exchange contrasts with a famous one before the Court fifty years ago, when Sir Henry Winneke for the Crown (and later Chief Justice of Victoria) advised Dixon CJ that he was unable to give an undertaking that the accused would not be executed pending his High Court appeal and instead asked Dixon CJ to order Victoria’s authorities not to kill him. Robert Tait’s death penalty was soon commuted and he died in prison 23 years later, with Ronald Ryan taking his place as the last Australian to be executed.