Yesterday, the High Court allowed an appeal by four criminal defendants against a unanimous judgment of the Victorian Court of Appeal and set aside two orders made by that court. According to the judgment summary of the High Court ruling, a majority of the Court ‘ordered that prosecutions of the appellants for offences against the Criminal Code (Cth) and the Crimes Act 1958 (Vic) be permanently stayed.’ This means that the prosecution of the four defendants, whoever they are, for a number of federal and state offences, whatever they are, is over, for ever. The summary explains that all seven High Court justices found that one of Australia’s peak crime investigating bodies, the Australian Crime Commission, illegally allowed its extraordinary coercive powers to be used by another peak investigative body, the Australian Federal Police, to overcome the four defendants’ legitimate refusal to explain the possibly illegal activities of a (pseudonymous) company, XYZ Limited. According to the summary, a majority of the seven judges held that ‘in the circumstances of the case, to allow the prosecutions to proceed would bring the administration of justice into disrepute.’
This is an extraordinary ruling. The Court’s findings, especially if it turns out that the allleged crimes or criminals are high profile, would ordinarily be big news, both for the legal community and to the wider public. However, for now, suppression orders made somewhere – it’s a Victorian case – are preventing not only the naming of the defendants but also the release of the High Court’s reasons for judgment. As Kiefel CJ explained when yesterday’s reasons were (meant to be) handed down:
The Court has been advised by the parties that there remain in place suppression orders respecting certain of the material which may appear in the reasons for judgment of the Court. To prevent prejudice to the proper administration of justice the Court makes orders to enable identification by the parties of material which may be the subject of ongoing suppression orders before the full, unredacted reasons of the Court are made publicly available.
While it is understandable that the Court would not wish to breach existing suppression orders, it is not immediately clear why it was unable to ensure in advance that its reasons for judgment were not in breach of any suppression orders. Alternatively, it is surprising that the parties could not be consulted in advance to clarify any uncertainty about what could or could not be said consistently with those orders. The Chief Justice’s orders nominate next Wednesday as the date for sorting out these issues, but it is possible that the date could be changed by further orders, and she also gave ‘liberty to apply’ for applications to continue to prohibit publication of parts of the Court’s reasons. The orders do not specify what will happen if the Court later determines that parts of its reasons can not be published.
Chief Justice Kiefel’s introductory remarks concluded: “In the interim, reasons of the Court in a redacted form are to be made available to the public.” However, surprisingly, the precise terms of her order give effect to this in a very narrow way:
Subject to Orders 4 and 5, the reasons for judgment of the Court be made available from the High Court Registry only in their redacted form and by request, subject to payment of the prescribed fee.
This explains why the redacted reasons for judgment are not, at the moment, available on online repositories such as Austlii, Jade and the High Court’s own website. According to the Court’s Melbourne registry, anyone who wants to see the redacted judgment will need to attend one of the registries of the High Court in person and pay a fee of $60. Again, it is not clear to me why the redacted judgment could not simply be placed on the regular online repositories or simply posted on the Court’s own webpage, perhaps in a pdf form. After all, the Court’s own suppression order only applies to the ‘full, unredacted reasons for judgment of the Court’ and it seems clear that the redacted version does not contain anything that breaches any other court’s suppression orders.