Director of Public Prosecutions v Connell (No 3)

[2024] ACTSC 259

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Connell (No 3)

Citation: 

[2024] ACTSC 259

Hearing Dates:

14 and 21 August 2024

Decision Date: 

21 August 2024

Before:

Mossop ACJ

Decision: 

See [23]

Catchwords: 

PRACTICE AND PROCEDURE – JURISDICTION – Federal jurisdiction exercisable by Territory court – whether ACT Supreme Court has power to make orders binding upon Commonwealth or Commonwealth officer – consideration of s 48A of Australian Capital Territory (Self-Government) Act 1988 (Cth) – question inappropriate to resolve on interlocutory application without contradictor

CRIMINAL LAW – EVIDENCE – Evidentiary matters relating to witnesses and accused persons – application for nondisclosure orders in relation to identity information of witness and protection of identity of witness while giving evidence – power to make orders on national security or defence grounds – application allowed

Legislation Cited: 

A.C.T. Supreme Court (Transfer) Act 1992 (Cth)

Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 23(1)(c), 27, 48A

Australian Capital Territory Supreme Court Act 1933 (Cth), s 11(a)

Australian Federal Police Act 1979 (Cth), s 8(1A)

Crimes Act 1900 (ACT)

Criminal Code (Cth), s 93.2

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 32, 111

Judiciary Act 1903 (Cth), s 68(2)

Cases Cited: 

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) [2024] ACTSC 194

Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157

Ezekiel-Hart v ACT DPP [2023] ACTSC 373; 184 ACTR 1

Faull v Commissioner for Social Housing for the ACT [2013] ACTSC 121; 277 FLR 61

Glavinic v Commonwealth [2023] ACTSC 361

North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; 218 CLR 146

R v Bersinic [2007] ACTSC 46

Sankey v Whitlam (1978) 142 CLR 1

Zhang v The Age Company Pty Ltd [2023] ACTCA 10; 375 FLR 165

Texts Cited:

Commonwealth House of Representatives, Parliamentary Debates (Hansard), 6 May 1992

Commonwealth House of Representatives, Parliamentary Debates (Hansard), 28 May 1992

Commonwealth Senate, Parliamentary Debates (Hansard), 1 June 1992

Commonwealth Senate, Parliamentary Debates (Hansard), 6 June 1992

Explanatory Memorandum, A.C.T. Supreme Court (Transfer) Bill 1992 (Cth)

Parties: 

Director of Public Prosecutions

John Connell ( Accused)

Commonwealth of Australia (Applicant)

Representation: 

Counsel

T Hickey ( DPP)

S Whybrow SC (14 August 2024) ( Accused)

A Berger KC (Applicant)

Solicitors

Director of Public Prosecutions

David Healey Solicitors ( Accused)

Australian Government Solicitor (Applicant)

File Number:

SCC 342 of 2022

MOSSOP ACJ:

1․These proceedings involve allegations of historical sexual offences. Each of the charges relates to an offence under the Crimes Act 1900 (ACT) alleged to have occurred prior to self-government (1989). They allege Territory, rather than federal, offences.

2․By application in proceeding dated 14 August 2024, the Commonwealth sought certain nondisclosure orders in relation to the upcoming trial. Unusually, it sought to be granted leave to be heard as amicus curiae, impliedly disavowing that it was, in fact, an interested party seeking to invoke the powers of the court. On the one hand, it sought to invoke the power of the court so as to make orders, yet, on the other, it sought to avoid being a moving party by seeking leave to appear only as amicus.

3․The reason that it adopted this unusual approach is because it contended that the Supreme Court of the Australian Capital Territory had no power to make any order binding upon the Commonwealth in a case involving the allegation of Territory offences, even where the orders sought arose, or might be supported by, a Commonwealth statute.

4․When the matter was first before me, I declined to grant leave to the Commonwealth to appear as amicus. I was not satisfied that it was either possible, or appropriate, for the Commonwealth to make an application invoking the powers of the court, notionally as an amicus, in circumstances where it contended that the court had no power to bind it.

5․The written submissions prepared by counsel for the Commonwealth advanced submissions, principally based upon s 27 of the Australian Capital Territory (Self‑Government) Act 1988 (Cth) (Self-Government Act), to the effect that the court could not bind the Crown in right of the Commonwealth in a case like this, where there was no investiture of federal jurisdiction by a Commonwealth statute. That contrasts with the position in relation to federal offences, where s 68(2) of the Judiciary Act 1903 (Cth) invests federal jurisdiction in Territory courts.

6․I raised with counsel for the Commonwealth the operation of s 48A of the Self‑Government Act, which was not addressed in the written submissions that he had then provided. It seemed to me that, prior to the transfer of the Supreme Court from Commonwealth to Territory control by the A.C.T. Supreme Court (Transfer) Act 1992 (Cth), the court had jurisdiction to bind the Commonwealth, as that was part of the original jurisdiction of the New South Wales Supreme Court in 1911 (see Australian Capital Territory Supreme Court Act 1933 (Cth), s 11(a)) and, notwithstanding the broad but vague language of s 48A, there was nothing in the extrinsic material relating to that change which indicated any intention to reduce the power of the court to bind the Commonwealth following the transfer. On the contrary, the stated intention of the government was that “The purpose of the legislation is to ensure that the current jurisdiction of the Court remains with it”, and “The Court’s present jurisdiction is guaranteed by both clause 48A(1) and proposed subsection 11(1) of the Supreme Court Act”: see Commonwealth Senate, Parliamentary Debates (Hansard), 4 June 1992 at 3582. Had the Attorney-General told the Parliament that the effect of the legislation was to remove from the Supreme Court the power to make orders binding upon the Commonwealth or a Commonwealth officer, the outcome of the parliamentary process would have been different (the government of the day having a minority in the Senate).

7․It is important to recognise that, as at the transfer of the Supreme Court to the Territory, the accepted doctrine was that there was no need for an “investiture” of federal jurisdiction. The notion that an investiture of federal jurisdiction was required only emerged following the decision in 2004 of the High Court in North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; 218 CLR 146, in particular, at [28]. As a consequence, the question was what jurisdiction was given to the court rather than whether or not federal jurisdiction was invested in it.

8․Whatever the scope of s 48A might be in relation to jurisdiction over proceedings where the Commonwealth is a party, the power to make ancillary orders necessary for the proper administration of justice in proceedings where otherwise there was no doubt that there was jurisdiction, such as a Territory criminal case, was a good candidate for the operation of s 48A in relation to the Commonwealth.

9․It is difficult to imagine that Parliament contemplated the enactment of s 48A and yet intended that the court, being a superior court sitting in the seat of government, could not make orders binding the Commonwealth where those were necessary for the proper administration of justice. There is certainly no suggestion to that effect in the Explanatory Memorandum for the A.C.T. Supreme Court (Transfer) Act or the second reading debates: see Explanatory Memorandum, A.C.T. Supreme Court (Transfer) Bill 1992 (Cth); Commonwealth House of Representatives, Parliamentary Debates (Hansard), 6 May 1992 at 2508-2510, and 28 May 1992 at 3121-3126; Commonwealth Senate, Parliamentary Debates (Hansard), 1 June 1992 at 3141-3147, and 6 June 1992 at 3580‑3584. As pointed out earlier, those debates indicated to the contrary.

10․That fact is reinforced by the parameters of self-government established by the Self‑Government Act, in particular, the fact that it was contemplated in the Act that the Australian Federal Police would remain the policing service for the Territory government: Self-Government Act, s 23(1)(c); Australian Federal Police Act 1979 (Cth), s 8(1A). Because police services are provided by officers of the Commonwealth, it is an essential requirement of the administration of justice in Territory criminal proceedings that those officers must be able to be compellable by subpoena and otherwise subject to the jurisdiction of the court.

11․The Commonwealth, in written submissions provided this morning, advanced reasons to the contrary of what I have just said. Those submissions sought to confine s 48A to a provision which would entrench the jurisdiction of the court, vis-a-vis the Territory legislature, but not empower it to make orders binding upon the Commonwealth, even where that was necessary for the administration of justice.

12․Different aspects of the jurisdiction of this court in relation to the Commonwealth have been raised but not determined in recent cases: Glavinic v Commonwealth [2023] ACTSC 361 at [288]-[290]; Ezekiel-Hart v ACT DPP [2023] ACTSC 373; 184 ACTR 1 at [32]-[40]; Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) [2024] ACTSC 194 at [12]-[19]. Similarly, the scope of s 48A of the Self-Government Act has been a difficult issue considered in a variety of contexts: see, for example, Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157 at [40]-[58]; Faull v Commissioner for Social Housing for the ACT [2013] ACTSC 121; 277 FLR 61 at [109].

13․It appeared to me that the operation of s 48A in relation to the Commonwealth was an issue inappropriate to attempt to resolve on an interlocutory application where there was no contradictor. When the matter was before me on 14 August 2024, I suggested to counsel for the Commonwealth that the question would be avoided if the ACT Director of Public Prosecutions, who is prosecuting the substantive criminal case, was persuaded to make the application in proceeding. The proceedings were then adjourned until 21 August 2024, and today the Commonwealth filed in court a new application in proceeding in which it did not seek to maintain the status of amicus but simply sought leave to be heard in order to make the application. That, in my view, is an appropriate course and allows the substance of the application to be dealt with.

14․That brings me to the substance of the application. The application seeks a pseudonym order, orders relating to nondisclosure of certain identity information to persons other than those essential for the conduct of the criminal proceedings, orders relating to the closure of the court, and orders relating to the protection of the identity of a witness while that person is giving evidence.

15․Two affidavits of a single deponent were read in support of the application. Those affidavits were dated 4 August 2023 and 14 August 2024.

16․The power to make orders preventing the publication of certain matters on grounds that it would adversely affect the public interest because of its effect upon national security or defence is well-established and includes statutory powers as well as the inherent power of the court: R v Bersinic [2007] ACTSC 46 at [4]; Sankey v Whitlam (1978) 142 CLR 1 at 44. The statutory provisions include those specifically targeted at national security (Criminal Code (Cth), s 93.2), as well as more general powers exercisable where it is in the interests of the administration of justice (Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111).

17․In exercising such powers, it is necessary to have regard to the importance of open justice, the need for both parties to have a fair trial, and the issues of security and safety that provide the foundation for the application. The entitlement for both parties to have a fair trial includes the entitlement of the prosecutor to be able to lead relevant evidence in the case.

18․The orders of the court sought in the present case are of a variety of different types. I am satisfied that each of the orders sought is within the power of the court to make, pursuant to s 93.2 of the Criminal Code, s 111 of the Evidence (Miscellaneous Provisions) Act, the court’s inherent powers, or a combination of one or more of those powers. Although there may be doubt as to the operation of s 111 of the Evidence (Miscellaneous Provisions) Act to bind the Commonwealth, there can be no doubt about the operation of s 93.2 of the Criminal Code in that regard. The use of audiovisual links to give evidence is now routine and is authorised by s 32 of the Evidence (Miscellaneous Provisions) Act. I am satisfied that the necessary facilities can reasonably be made available.

19․I accept the evidence of the deponent of the two affidavits which explain the reasons for seeking the orders. For reasons which are obvious, it is not appropriate to describe in detail the content of those affidavits and the opinions there expressed. Put generally, I accept that there is a significant public interest in making the orders sought.

20․The making of the orders is not opposed by counsel for the accused nor counsel for the prosecution. Neither contends that it would affect their capacity to have a fair trial in the proceedings. Both will be able to make full use of all evidence within the proceedings.

21․If the orders are made, the public interest in open justice will be somewhat affected. However, it will not be affected to a greater extent than is necessary in order to protect the identified public interest. When regard is had to the purposes of the open justice principle (as to which see Zhang v The Age Company Pty Ltd [2023] ACTCA 10; 375 FLR 165 at [43]) the detriment that would be caused by the making of the orders will not be great.

22․In those circumstances, it is appropriate to make orders largely to the effect of those which were sought. There will be some minor variations which have been discussed with counsel appearing today.

Orders

23․The orders of the Court are:

Leave to be heard

1.The Commonwealth of Australia is granted leave to be heard in relation to matters concerning certain evidence to be tendered in connection with the accused, John Patrick Connell.

Pseudonym orders

2.The witness named at paragraph 15 of the confidential supplementary affidavit of Kieran Sulwood affirmed on 14 August 2024 (the Further Protected Witness) shall be identified by a pseudonym.

Non-disclosure

3.There be no disclosure other than to the persons listed in order 5, by publication or otherwise, of:

3.1Any information tending to identify the nature of the prior employment within the Commonwealth (including the identity of the employer, the dates of employment and the duties and activities forming part of that employment) of the persons named at paragraph 13 of the confidential supplementary affidavit of Kieran Sulwood affirmed on 14 August 2024.

3.2Any information communicated in the proceeding that reveals, or tends to reveal:

3.2.1the identity of the Further Protected Witness

3.2.2any remote location from which the Further Protected Witness gives evidence from via AVL pursuant to order 10 below.

3.3For the purposes of order 3.2 above:

3.3.1information that tends to reveal the identity of the Further Protected Witness includes, but is not limited to, any:

3.3.1.1biographical information about the witness;

3.3.1.2details about the witness’ current or prior employment;

3.3.1.3image of the witness; or

3.3.1.4description of the physical appearance of the witness;

3.3.2information is taken not to have this tendency if it is evidence over which the Commonwealth has indicated that it does not intend to seek a suppression order (see order 9.1 below).

3.4Any information supplied by the Commonwealth in the course of the application in proceeding heard on 14 August 2024 and 21 August 2024 that would disclose any of the matters in orders 3.1 to 3.3, including any affidavit material admitted into evidence, and any written and oral submissions made in relation to this application.

Closed court

4.Subject to any further order of the Court, the Court be closed during any evidence, submissions, discussion or tendering of document in the proceedings relating to the matters referred to in order 3 above.

5.Only the following people are permitted to be present when the Court is closed pursuant to order 4 above:

5.1the presiding Judge;

5.2the jury;

5.3necessary court staff (including transcription service providers);

5.4necessary security officers, police officers and correctional officers;

5.5the ACT Director of Public Prosecutions, her officers and her legal representatives instructed in these proceedings;

5.6the accused, his wife and his legal representatives instructed in these proceedings;

5.7authorised representatives of the Commonwealth of Australia including the Commonwealth’s legal representatives.

6.If a transcript of any hearing that occurs in closed court (a closed court transcript) is disseminated by or on behalf of the Court to any of the parties or their legal representatives, it shall at the same time be disseminated to the Commonwealth via its legal representatives.

7.Upon any closed court transcript being disseminated to the Commonwealth in accordance with order 6 above, the Commonwealth shall have 48 hours or one business day (whichever is greater) to apply for a suppression order in respect of any portion of it, during which period the closed court transcript shall not be disseminated or made available to any person not listed in order 5 above.

8.If the Commonwealth applies for a suppression order in respect of any information in a closed court transcript, the application shall be accompanied by a version of the closed court transcript in which that information is redacted (a redacted closed court transcript).

9.Until further order, and save for disclosures to and between persons referred to in order 5 above, there shall be no disclosure of any evidence given in closed court unless and until:

9.1the Commonwealth indicates that it does not intend to seek a suppression order in respect of that evidence (including by providing a redacted closed court transcript in which the evidence is unredacted); or

9.2the expiration of the period referred to in order 7 above.

Audio link and screening

10.The Further Protected Witness shall give their evidence via audio-visual link from a remote location in the ACT.

11.While the Further Protected Witness is giving evidence, only the persons listed in order 5 are permitted to view the Further Protected Witness and, subject to any further order of the Court, the Court is to be closed during that evidence.

Confidential affidavit to be returned

12.The confidential supplementary affidavit of Kieran Sulwood affirmed on 14 August 2024 is to be returned to the legal representatives of the Commonwealth of Australia (the Australian Government Solicitor) and securely stored at the cessation of the trial, subject to the parties making an application to the Court for the affidavit to be viewed by the parties and their legal representatives.

13.Until the cessation of the trial, the confidential supplementary affidavit of Kieran Sulwood affirmed on 14 August 2024 is to be kept sealed in an envelope marked ‘Do not open without the permission of the presiding judge in DPP v John Patrick Connell’ and stored in a safe or other lockable cabinet only accessible to the presiding Judge and their associates or to the Registrar.

Other

14.Orders 2 to 13 above will operate from the date the orders are made until further order.

15.The Commonwealth of Australia, through its legal representative, is to be given notice of any application to vary or discharge these orders.

16.The Commonwealth is directed to file in Court redacted versions of the two affidavits relied upon today and the written submissions provided to the court on 14 and 21 August 2024, redacted in a manner that will allow them to remain on the open Court file.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Mossop.

Associate:

Date: 11 October 2024