In the Matter of An Application by the Australian Broadcasting Corporation pursuant to section 194K of the Evidence Act 2001
[2005] TASSC 41
•20 May 2005
[2005] TASSC 41
CITATION:IN THE MATTER OF AN APPLICATION by the Australian Broadcasting Corporation pursuant to section 194K of the Evidence Act 2001
[2005] TASSC 41
PARTIES:IN THE MATTER OF AN APPLICATION by the Australian Broadcasting Corporation pursuant to section 194K of the Evidence Act 2001
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 29/2005
DELIVERED ON: 20 May 2005
DELIVERED AT: Hobart
HEARING DATE: 13, 16 May 2005
JUDGMENT OF: Slicer J
CATCHWORDS:
Evidence - Witnesses - In general - Control of court over witnesses - Evidence of complainant in sexual cases - Circumstances in which court will permit publication of the identity of the complainant.
In re Australian Broadcasting Corporation (2003) 12 Tas R 308.
Evidence Act 2001 (Tas), s194K(1) and (2).
Aust Dig Evidence [204].
REPRESENTATION:
Counsel:
Applicant: D J Gunson SC
First Respondent: T J Ellis SC
Second Respondent: R Mainwaring
Solicitors:
Applicant: Gunson Williams
First Respondent: Director of Public Prosecutions
Second Respondent: Legal Aid Commission of Tasmania
Judgment Number: [2005] TASSC 41
Number of paragraphs: 9
Serial No 41/2005
File No 29/2005
IN THE MATTER OF AN APPLICATION by the Australian Broadcasting Corporation Pursuant to Section 194K of the Evidence Act 2001
REASONS FOR JUDGMENT SLICER J
20 May 2005
The Australian Broadcasting Corporation seeks the leave of the Court to publish the identity of a complainant to an indictment comprising charges of sexual impropriety committed by Mr Daniels over some 20 years. The status of the offender, the history of the investigations and inquiries concerning his conduct and the response by the religious institution of which he was a member have been matters of public interest for a considerable time. Concurrent with that focus of public interest have been matters of similar import concerning State and other religious institutions and their reactions to their treatment of young persons entrusted to their care. That the matters are relatively historic does not deprive them of the characterisation of present public interest. That interest is that of redress of past wrongs, a guide to present and future response and vindication of the plight of those who still live with, and are affected by, past misconduct. Whether excessive concern for past wrongs, vindication and retribution reinforces the negative side of "victimology" is not, for the purpose of these proceedings, of significant import. A similar application made in respect of another complainant who gave permission for his identity to be revealed was allowed on 13 May 2005.
The general principles applicable to an application of this nature were stated by Underwood J (as he then was) in In re Australian Broadcasting Corporation (2003) 12 Tas R 308. Parliament has enacted legislation which protects the identity of persons sexually abused through the Evidence Act 2001, s194K, which states:
"(1) A person, in relation to any proceedings in any court, must not, without a court order, publish or cause to be published in any newspaper, journal, periodical or document or in any broadcast by means of wireless, telegraphy or television ¾
(a)the name, address, or any other reference or allusion likely to lead to the identification, of ¾
(i)any person in respect of whom a crime is alleged to have been committed under section 124, 125, 125A, 125B, 126, 127, 127A, 128, 129, 185 or 186 of the Criminal Code; or
(ii)any person in respect of whom an offence is alleged to have been committed under section 35(3) of the Police Offences Act 1935; or
(iii)any witness or intended witness, other than the defendant, in those proceedings; or
(b)any picture purporting to be a picture of any of those persons.
(1A) A person, in relation to any proceedings in any court, must not, without a court order, publish or cause to be published in any newspaper, journal, periodical or document or in any broadcast by means of wireless, telegraphy or television ¾
(a)the name, address, or any other reference or allusion likely to lead to the identification, of ¾
(i)any person in respect of whom a crime is alleged to have been committed under section 133 of the Criminal Code; or
(ii)the person who is alleged to have committed that crime; or
(iii)any witness or intended witness in those proceedings; or
(b)any picture purporting to be a picture of any of those persons.
(2) A court is not to make an order under subsection (1) or (1A) unless satisfied that it is in the public interest to do so.
(3) A court may make an order under subsection (1) or (1A) subject to any specified conditions.
(4) A person who publishes or causes to be published anything in contravention of this section commits a contempt of court and is liable to punishment for that contempt as if it had been committed in the face of the court against which the contempt is committed."
In this case the Director of Public Prosecutions, acting in accordance with that legislation, opposes the grant of leave. Permission has not been granted by the named complainant, who is now deceased. The application made by a media organisation is effectively brought by the mother of the deceased, who took his own life in 2004. In sentencing the offender for his crimes committed against that complainant, this Court stated:
"In one instance a person abused by the offender committed suicide. It is impossible, on the material placed before this Court by the State, to determine a direct causative link. The impact statement put to the Court on behalf of the young man's mother states:
'B committed suicide on the 11th May 2004.
B was then living in Melbourne.
B had told me, at age of 25 or 26, all about what Daniels had done to him.
My feeling [sic] towards Daniels are very bitter and show disappointment. He manipulated the family by pretending to be a father figure. He wasn't in fact he was just a predator.'
The statement is articulate and compelling, but the complexity of the human experience makes it impossible to find, for the purpose of criminal sanction, a simple or singular correlation. However, it is accepted that the conduct of the offender had a significant effect on the life and well-being of a young man, which contributed to a decision that to leave life was less painful than to continue with it. That conclusion ought not be regarded by those who hold the memory of that youth dear as one of indifference or lack of understanding, but as one which reflects the role of a Court in the sentencing process to have regard to the material before it."
The application is supported by an affidavit of the mother of the complainant, who states:
"1 I am the Mother of Brett Andrew Skipper who was born on the 30th September 1971. My son Brett died on the 15th May 2004. He took his own life. …
2 My son was a victim of Louis Victor Daniels the accused herein. …
3 I wish to speak publicly on ABC television and radio about the traumatic effect of the accused [sic] conduct towards my son. I believe that by discussing these matters publicly that this will assist me in the healing process and further assist others in the community who may have been the subject of sexual assaults particularly by members of the clergy.
4 I further believe that if I am permitted to speak publicly and to identify my son that others … may be minded to come forward and make the property [sic] [proper] and appropriate complaints of sexual misconduct.
5 I am informed and do verily believe that the accused has pleaded guilty to one count of maintaining a sexual relationship with my son between the 1st January 1983 and the 31st December 1985."
The Court did not receive into evidence some other portions of the affidavit.
The Director of Public Prosecutions opposes the application on the bases that:
1 The legislation exists to protect the identity of the victim of sexual abuse. Permission granted by another ought rarely be allowed. The onus remains with an applicant for exemptions and here it has not been shown that the mother had not been estranged from her son and might not properly protect his name.
2 Once identification has been permitted, there would be little scope to protect improper attacks on the reputation of the deceased.
3 Absent permission from a complainant, it is not generally in the public interest to permit identification.
To these objections ought be added a matter which concerned the Court and the sentencing process. This Court sentenced Mr Daniels on the basis of material placed before it by the State. Material originally proffered by the State suggested a direct correlation between the conduct of the offender and the death of the complainant. Such was not pursued. Material comprised in the affidavit filed in support of this application, and which was excluded by the Court, repeated or inferred a suggestion of a direct nexus or correlation. The Court was, and remains, concerned that permitted identification might enable pursuit of either a vendetta or the attempted raising of new allegations, not relied upon by the State, to assail sentence. There is a need for finality in a case such as this.
Despite the concerns articulated by the Director and that identified above, the Court will permit identification. There is some legal basis for the future protection of the reputation and name of the deceased (see Defamation Act 1957, s5). The Court is entitled to assume that the media will act responsibly in the use of the identity of a person affected by these proceedings and not able to provide his own story or version. The Court is entitled to assume that identification will not be used as an improper device for other purposes. The public interest is best served by open discussion of issues which are of concern to the community and facilitate a rational discourse and understanding of a complex social issue.
For those reasons, identification will be permitted. In accordance with the Evidence Act, s194K, publication of the name or picture of Brett Andrew Skipper in relation to the proceedings in the Court of The State of Tasmania v Louis Victor Daniels is permitted.
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