In the Matter of the Evidence Act 2001, s194K and an Application by the Australian Broadcasting Corporation and Davies Bros Limited

[2003] TASSC 118

[2003] TASSC 118

CITATION:In the Matter of the Evidence Act 2001, s194K and an Application by the Australian Broadcasting Corporation and Davies Bros Limited [2003] TASSC 118

PARTIES:IN THE MATTER OF THE EVIDENCE ACT 2001, s194K and an APPLICATION BY THE AUSTRALIAN BROADCASTING CORPORATION and DAVIES BROS LIMITED

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  C355/2003
DELIVERED ON:  10 November 2003
DELIVERED AT:  Hobart
HEARING DATES:  10 November 2003
JUDGMENT OF:  Underwood J

[Edited reasons for judgment given orally]

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.

R v The Age Company Ltd [2000] TASSC 60, referred to.
Evidence Act 2001 (Tas), s194K(1) and (2).
Aust Dig Evidence [204]

REPRESENTATION:

Counsel:
     Applicant Davies Bros Limited:  D F M Zeeman
     Applicant Australian Broadcasting Corporation:      K B Procter SC
     Respondent:  M A Stoddart
Solicitors:
     Applicant Davies Bros Limited:  Butler McIntyre & Butler
     Applicant Australian Broadcasting Corporation:      Murdoch Clarke
     Respondent:  Director of Public Prosecutions

Judgment Number:  [2003] TASSC 118
Number of Paragraphs:  8

Serial No 118/2003
File No C355/2003

IN THE MATTER OF THE EVIDENCE ACT 2001, s194K
and an APPLICATION BY THE AUSTRALIAN BROADCASTING CORPORATION and DAVIES BROS LIMITED

REASONS FOR JUDGMENT  UNDERWOOD J

(DELIVERED ORALLY)  10 November 2003

1. Garth Stephen Hawkins is charged with maintaining a sexual relationship with a young person between January 1979 and December 1982.  The particulars allege that the young person was a male born on 30 May 1966.  I was informed that upon his arraignment, the accused intends to plead guilty.  Presently before me is an application made pursuant to the Evidence Act 2001 ("the Act"), s194K(1), for an order that the Australian Broadcasting Corporation and Davies Bros Limited, the publisher of the Mercury and other newspapers, be permitted to publish the name of a person in respect of whom it is alleged that a sexual crime or crimes, referred to in the subsection, has been committed. The Act, s194K, provides:

"(1) ¾ 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 sections 124, 125, 125A, 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 –

(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) or 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."

1. I am satisfied from the submissions put to me in writing by Mr D Zeeman, counsel for the applicant Davies Bros Limited, that the applicants have sufficient standing to make the application.  They have the requisite interest in the publication of the victim's name for the reasons enunciated in Mirror Newspaper Ltd v Waller (1985) 1 NSWLR 1 and John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1985) 5 NSWLR 465. It is a legitimate part of the applicants' business to provide the public with a fair report of proceedings in a criminal court.

1. The Act, s194K(2), directs that the order sought must not be made unless the Court is satisfied that it is in the public interest to do so. The Director of Public Prosecutions, the officer responsible for prosecuting those who act contrary to s194K, did not oppose the making of the order sought and the victim of the crime supported the application. By his counsel, the accused indicated that he did not wish to be heard upon the application. The victim made an affidavit that was read on the application and, in addition, an affidavit sworn by Ms Ward, a journalist employed by the applicant, the Australian Broadcasting Corporation, was also read.

1. It has long been fundamental tenets of our criminal justice system that proceedings in Court should be held in public and that the media have a right to publish a fair account of such proceedings.  These tenets are calculated to protect the judicial system from the corruption and abuse that often attends proceedings conducted in secret.  It was said in Packer v Peacock (1912) 13 CLR 577, a case concerning a contempt of court by a newspaper, at 588, that the public has a "legitimate curiosity as to such matters as the violent or sudden death or disappearance of a citizen, the breaking into a house, the theft of property or any other crime …". Equally, it can be said that the public has a legitimate interest in the conduct of criminal proceedings. However, in relatively recent times it has been recognised that there are countervailing considerations that need to be balanced against the fundamental tenets and legitimate public interest. These considerations led to the enactment of the Act, s194K. It has counterparts in other jurisdictions. Victims of the sexual crimes set out in that section have an equally legitimate claim to anonymity outside the courtroom to protect them from unnecessary exposure to unwanted public scrutiny and embarrassment that so commonly attaches to those victims. The statutory provision also serves to satisfy another purpose and in this respect I respectfully adopt the following passage from the judgement of Evans J in R v The Age Company Ltd [2000] TASSC 60 at par13 where his Honour said:

"One of the purposes of s103AB [the forerunner to the present section] is to protect victims of sexual offences from the consequences which may flow from media publicity. In Tasmania, this protection is imposed regardless of whether the victim seeks the publicity or not. In some jurisdictions, it is a defence to a charge of breaching a provision similar to the Act, s103AB(1), if the victim has given permission for the publication. See, for example, the Judiciary Proceedings Repeal Act 1958 (Vic), s4(1B). The Act, s103AB, contains no provision allowing a victim to consent to his or her identity being publicised. There are good reasons for this. Such a provision may encourage representatives of the media to pester victims to consent to publicity. It is undesirable to expose victims to this pressure at a time when they are likely to be in considerable emotional turmoil and may be ill-equipped to weigh up and assess the consequences of publicity. One benefit of a provision such as s103AB is community knowledge that those who make complaints about sexual offences are protected from publicity. This protection encourages people who might otherwise have been deterred from reporting sexual offences to come forward. The perception that victims are protected from publicity would be diminished if the media was able to publish details of victims who consented to that course."

1. So, although the victim in this case has consented to the order being made, and although the application is not opposed by the Director of Public Prosecutions, it is still necessary that the making of the order is in the public interest.  What is that interest?  According to the victim's affidavit, in May 2001 he joined a group known as "Survivors Confronting Child Abuse and Rape" and since then has spoken publicly on many occasions about the facts that gave rise to the commission of the crime by the accused.  He has been interviewed in the media on many occasions and says that the fact that he has been able to speak publicly about this matter has helped his healing process.  This is obviously very much to his benefit and insofar as he is a member of the public, that fact is a relevant consideration.

1. The applicant's affidavit suggests that his public disclosures led to his complaints being properly investigated and this prosecution being brought. From that affidavit I can, and do, infer that the publication of his name in connection with the proceedings may encourage other victims to come forward and that may well lead to the investigation and prosecution of other offenders who have remained undetected to date. The victim's unchallenged affidavit also infers that publication of his name, together with the details of the case, will lead to a greater understanding and compassion by the general public for the victims of the crimes specified in s194K. Ms Ward supports these propositions in her affidavit. They are all matters of public interest, which need to be weighed in the exercise of the discretion.

1. A countervailing consideration is the risk that the publication of the victim's name may deter other victims from bringing their complaints forward.  In this case, I think that risk is minimal, firstly for the reasons advanced by the victim in this case and, secondly, because it is now generally known in this community that the names of victims of sexual crimes are not published in the media unless there is an order of the Court to the contrary.  Secondly, it is also now generally known in this community that such an order will not be made unless there is good reason to do so.  Perhaps it could be added that it is generally understood that it is extremely unlikely that an order would be made over the opposition of a victim.

1. In all the circumstances of this case, I am persuaded that it is in the public interest to make an order that in relation to the proceedings in this Court of R v Garth Stephen Hawkins, the publication of the name, address or other reference or illusion likely to lead to the identification of Steven John Fisher is permitted.