Monday (a pseudonym) v The Queen
[2022] ACTCA 25
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Monday (a pseudonym) v The Queen |
Citation: | [2022] ACTCA 25 |
Hearing Date: | 12 November 2021 |
DecisionDate: | 24 May 2022 |
Before: | Elkaim J, Loukas-Karlsson J and McWilliam AJ |
Decision: | (1) The application for leave to appeal is refused. (2) Order 2 of the orders made by Murrell CJ on 25 May 2021 is extended for a period of 28 days from the date of this order. |
Catchwords: | APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – appeal against revocation of non-publication order – whether an order concerning the making or revocation of a non-publication order is an interlocutory order – s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – harm caused to third party |
Legislation Cited: | Court Procedures Rules 2006 (ACT) div 5.4.2, r 5311 Court Suppression and Non-publication Orders Act 2010 (NSW) s 8 Supreme Court Act 1933 (ACT) s 37E |
Cases Cited: | Australian Broadcasting Company v Parish (1980) 43 FLR 129 Bailiff v The Queen [2011] ACTCA 7 D1 v P1 [2012] NSWCA 314 G v The Queen (1984) 35 SASR 339 Witness v Marsden [2000] NSWCA 52; 49 NSWLR 429 |
Parties: | Raynard Monday (a pseudonym) ( Appellant) The Queen ( Respondent) |
Representation: | Counsel K Archer ( Appellant) K Breckweg ( Respondent) |
| Solicitors Canberra Criminal Lawyers ( Appellant) Commonwealth Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 26 of 2021 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Murrell CJ Date of Decision: 25 May 2021 Case Title: R v Monday (a pseudonym) (No 2) Citation: [2021] ACTSC 100 |
ELKAIM J and McWILLIAM AJ:
We have had the benefit of reading, in draft form, the judgment of Loukas-Karlsson J. We have reached a different conclusion from her Honour and would dismiss the appeal.
A comprehensive description of the background to the matter is contained in the reasons of Loukas-Karlsson J, which we gratefully adopt. It includes the terms of s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) with which the order the subject of appeal is concerned. We agree with her Honour that the order of the then Chief Justice (R v Monday (a pseudonym) (No 2) [2021] ACTSC 100) was interlocutory in nature because it concerned a procedural matter; that is, whether the appellant’s name should remain suppressed after he had been sentenced. That order was not an order finally disposing of the rights of the parties in the principal proceeding. Accordingly, the appellant requires leave to appeal.
We would not grant leave to appeal as, for reasons that follow, we do not consider the primary judge’s decision is attended with sufficient doubt to warrant reconsideration, and the proceeding does not otherwise fall within the established bases for a grant of leave set out in Miles v The Queen [2013] ACTCA 52 at [11] (extracted at [57] in the reasons of Loukas-Karlsson J). Loukas-Karlsson J has concluded that there was an error in principle, and that consequently leave should be granted as a substantial injustice would result if leave were refused.
The basis for reaching a different conclusion (from that of Loukas-Karlsson J) turns upon the primary judge’s fundamental reason for refusing to continue the suppression order. This reason is material to each of the grounds of appeal and is stated at [22]:
In the present case, there is no evidence that publication of the evidence or the offender’s name is likely to prejudice the administration of justice in any relevant sense. As far as the particular case is concerned, the proceedings have been finalised and justice administered. There is no evidence concerning prejudice to the administration of justice generally.
Properly understood, the primary judge was plainly stating that a suppression order of the type sought did not fall within the bounds of the administration of justice. In particular, her Honour was distinguishing the case before her, which involved an order concerning non-publication operating after the conclusion of the proceedings, from an order made in proceedings which were current or pending. What then is the scope of the “administration of justice”?
No doubt this phrase has many meanings, such that it might be thought of as a phrase incapable of specific interpretation. For present purposes, we apply the definition given by Bathurst CJ and McColl JA in Rinehart v Welker [2011] NSWCA 403; 93 NSWLR 311 (Rinehart), from [39] (emphasis in original):
39.The concept of the administration of justice is multi-faceted. We doubt whether a single statement can capture the connotation it carries in a range of contexts. As Young JA has said (at [86]) as used in s 50 of the Federal Court of Australia Act, "it is,... a reference to the public interest that the court should endeavour to achieve effectively the object for which it was appointed to do justice between the parties": Australian Broadcasting Commission v Parish (at 133) per Bowen CJ.
40.Mahoney JA (with whom Hope AJA agreed) captured the concept in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 (at 161), when (after referring to McHugh JA's statement in John Fairfax & Sons Ltd v Police Tribunal (NSW) (at 355)) he said
"This leads to the consideration of what is meant by 'necessary to secure the proper administration of justice' in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceedings will go on: at least the instant proceeding will. ... The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kind of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restricted powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based."
For the public interest under consideration in the present case, what emerges from Rinehart is that the administration of justice is concerned with “justice between the parties”. This will frequently involve orders protecting the names of both the parties and of associated persons. In this case, Magistrate Theakston made an order suppressing the identification of the appellant in order to protect a close relative of the appellant, who it was thought might take measures of self-harm (including suicide) should the appellant be identified.
The magistrate’s order was made at an early stage in the proceedings against the appellant and well before the finalisation of the proceedings. This finalisation occurred on 25 May 2021 when the appellant was sentenced by the primary judge (R v Monday(a pseudonym) [2021] ACTSC 99).
If the appellant’s close relative had threatened or committed any act of self-harm before 25 May 2021 then the proceedings between the parties (the Crown and the appellant) might have been adversely affected. For example, a possibility of the close relative committing suicide might have caused the accused to plead not guilty, in the hope, however forlorn, that an acquittal might deter a tragic consequence. An order endeavouring to avoid such a result was therefore entirely appropriate and within the administration of justice.
But once the proceedings between these parties were completed (there having been no appeal on sentence) then, to once again quote the primary judge at [22]:
As far as the particular case is concerned, the proceedings have been finalised and justice administered.
Her Honour observed at [19]:
It is apparent from the terms of s 111 that the provision is designed to promote the administration of justice by protecting parties and witnesses who might otherwise be unwilling to freely participate in the justice process (either in the particular case or more generally) and by enabling full evidence to be put before the court, despite its sensitivity or confidential nature.
It is to be noted here that the primary judge, although being asked to continue an order that had already been made, was in effect making a fresh order, to apply following the completion of the proceedings.
There are of course many instances of suppression orders continuing after the conclusion of relevant proceedings. The identity of victims of sexual assault, or domestic abuse, for example, will continue to have their identity concealed after the relevant court proceedings have been finalised. Generally, such suppression arises from specific statutory provisions (for example s 712A of the Criminal Code 2002 (ACT) and s 149 of the Family Violence Act 2016 (ACT)). All orders of this type, no matter how unrestricted in their longevity, are made or applied in the course of proceedings and before the finalisation of those proceedings.
The primary judge was careful to avoid suggesting that the administration of justice could not be widely interpreted, and could not, in particular circumstances, have a more wide-ranging effect on suppression orders than is usually the case. Similarly, the primary judge’s discussion of s 111 above did not confine its reach only to orders for non-publication before proceedings have been concluded. What her Honour was emphasising was that any such order must promote or be in furtherance of the administration of justice, as seen from the last sentence in [22] of her Honour’s judgment:
There is no evidence concerning prejudice to the administration of justice generally.
Clearly the administration of justice can encompass suppression orders for the benefit of non-parties. But once “justice has been done” (in this case, when the appellant was sentenced) the basis for orders protecting third parties into the future must still be tied to, or be relevant to, the administration of justice in the sense described above. If the order in this case was no longer relevant to “do justice” to the dispute between the parties, then it must be founded on broader considerations concerning the administration of justice generally. Her Honour was saying no more than that there was no evidence of this relevant to the order sought.
Specifically considering Grounds 3 and 4 of the appeal, none of the material before this Court (which has been set out in the reasons of Loukas-Karlsson J) discloses that the primary judge was incorrect in that finding. It may be accepted that there were real and substantial concerns by qualified medical professionals about the mental state of a close relative of the offender being such that he would not be able to cope with knowledge of the offender’s crime. But there was no evidence as to how that affected the Court’s ability to perform the function of administering justice, either as between the parties or more generally.
The above discussion also informs the primary judge’s earlier statements regarding jurisdiction and power at [21]:
Neither in the exercise of inherent jurisdiction nor under s 111 is there a test of whether publication is likely to cause harm to the offender or a third party. The publication of an offender’s name and details of their background almost inevitably causes reputational damage to an offender and stress to those who are close to the offender. However, unless such publication poses a risk to the administration of justice, either in the particular case or more generally, unavoidable harm to the offender or those close to them is not a relevant consideration: John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of NSW (1991) 26 NSWLR 131 at 142.
Contrary to the arguments made in relation to Grounds 1 and 2 of the appeal, her Honour was not stating that the Court had no jurisdiction or power (whether under statute or at common law and specifically, in its inherent jurisdiction) to make non-publication orders to protect a third party whose safety was considered to be at risk. What her Honour was emphasising in the above passage was that any such order made in the exercise of the Court’s jurisdiction must have as its foundation a risk to the administration of justice. Properly understood, there was no error of principle in the primary judge’s findings on this issue.
Similarly, and dealing separately with Ground 5 of the appeal, her Honour in the above passage did not find that likely harm to a third party was irrelevant to the administration of justice of itself. What her Honour found was more nuanced than that, namely that there needed to be a link between harm to those close to the offender and the administration of justice in order for it to be a relevant consideration for the Court in deciding whether to make an order under s 111 or in its inherent jurisdiction.
Loukas-Karlsson J has referred to Witness v Marsden [2000] NSWCA 52; 49 NSWLR 429 (Marsden), D1 v P1 [2012] NSWCA 314 (D1) and Kaplan v State of Victoria [2022] FCA 590 (Kaplan) as recognising “safety of persons” as a category of case where administration of justice considerations founded a non-publication order in the form of assigning a pseudonym.
There are important distinctions between the current case and each of the cases relied upon. Firstly, the person seeking the suppression order in Marsden was a potential witness. Secondly, and more importantly, the applicant for the order had not yet given evidence. He was concerned that if the fact that he gave evidence was revealed to other persons in gaol (where he was then an inmate) his personal safety would be placed at significant risk.
As Heydon JA (with whom Mason P and Priestley JA agreed) explained at [144]:
It is necessary that there be a minimalist interference with open justice to the extent of pseudonym orders in favour of the Witness. That is because without them the Witness reasonably fears death or physical injury, or alternatively an unnecessary loss of liberty. These are evils which it is necessary to avoid by that degree of minimalist interference. Without the orders, the Witness is exposed to hurt, and the party calling him is faced with the risk of testimony proceeding from a person who is reluctant, but in a particular sense. Many witnesses, as the plaintiff pointed out, are reluctant, but few are reluctant because of fears for their lives, safety or liberty.
It is apparent from Heydon JA’s judgment that his Honour was concerned to ensure that the witness would be able to give evidence without the fear of retribution. The giving of evidence is part of the administration of justice. It cannot be said that because the order was made in contemplation of the witness giving evidence, that the same order would have been made at or after the completion of the case in circumstances where that witness had already given evidence. Similarly, it cannot be extrapolated from the reasoning in Marsden that any time the publication of a party’s identity or the proceedings in which they are involved may prejudice the safety of a person (whether physically or mentally), a non-publication order will be available or appropriate.
In D1, the relevant statute was the Court Suppression and Non-publication Orders Act 2010 (NSW) (see D1 at [40]). The reason “safety of persons” was recognised as a category grounding a suppression order was because s 8(1)(c) of that statute expressly provided as one of the grounds where the court may make a suppression order or non-publication order: “the order is necessary to protect the safety of any person”. There is no equivalent provision here. The statutory basis considered in D1 was independent of any consideration for whether there was “prejudice to the proper administration of justice”, which was listed as a separate category in s 8(1)(a) of the NSW statute.
Further, the proceedings in D1 were also considered to be affected by related proceedings which had not yet concluded (D1 at [79]). To the extent that limited suppression orders were made, the Court of Appeal imposed time limits on those orders, requiring fresh consideration of the continuing necessity for the orders at a later date.
In Kaplan, again, the trial was yet to occur and the suppression orders in question concerned 34 current or former school students whose conduct was the subject of allegations in existing court proceedings. The basis for the application was that each was a minor at the time of the alleged conduct and that 15 of the 34 students were still minors (Kaplan at [6]). It was not a case where “safety of persons” was a category under consideration, or recognised in passing, but in any event, Mortimer J emphasised (at [16]) that the suppression orders sought must be necessary to prevent prejudice to the administration of justice. Her Honour found no such necessity and dismissed the application (Kaplan at [93]).
It need hardly be said that the effects of the outcome of cases may be wide-reaching for persons not involved in litigation before the courts. In particular with regard to this appeal, there may be significant and distressing consequences for the lives of family members of offenders that are brought before the courts. While the Court is not blind to the unhappiness and hardship visited upon family members when a person is convicted, this is a consequence of the conduct of the offender and the outcome of the proceedings, not a prejudice affecting the administration of justice.
For these reasons, we are of the view that no error has been shown in the decision of the primary judge and leave to appeal will be refused accordingly.
In order to allow the appellant an opportunity to consider any further rights of appeal and to enable any management to occur in relation to the appellant’s relative in a timely manner, including for further medical advice to be taken in light of the consequences of this appeal, the interim suppression order will remain in effect for a further 28 days.
Orders
The orders of the Court are as follows:
(1) The application for leave to appeal is refused.
(2) Order 2 of the orders made by Murrell CJ on 25 May 2021 is extended for a period of 28 days from the date of this order.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim and Acting Justice McWilliam. Associate: Date: |
LOUKAS-KARLSSON J:
Introduction
Keith Scott (the appellant) seeks leave to appeal from an order of Murrell CJ (the primary judge) to revoke a non-publication order that prohibited the publication of the appellant’s name and matters tending to identify him.
Background
On 20 May 2020, the appellant was charged with one count of possessing or controlling child abuse material on or about 29 April 2020 contrary to s 474.22A of the Criminal Code Act 1995 (Cth). On 21 May 2020, the appellant appeared in the Magistrates Court for the first mention of the matter. The appellant was assisted on a duty basis by a Legal Aid solicitor who sought an order pursuant to s 310 of the Magistrates Court Act 1930 (ACT) that there be no publication of the appellant’s name or information that may identify the appellant for a period of time. The duty solicitor noted that the temporary non-publication order was sought so that the appellant could inform the affected person of the charge rather than the affected person finding out through other means. It was placed on the record that [redacted]. It was then submitted that if the affected person was to find out about the nature of the charge through alternative means, it could be significantly detrimental [redacted]. Magistrate Theakston made the non-publication order in the terms sought. Publication of the name of the appellant or information that may identify the appellant was prohibited until 12:01AM on 27 May 2020.
The matter again proceeded before Magistrate Theakston on 25 May 2020. From this occasion onwards, the appellant was represented on an ongoing basis by Paul Edmonds & Associates. Magistrate Theakston was dealing with an application filed by the journalist Mr Craig Dunlop to have the order made on 21 May 2020 revoked. At the same time, the appellant’s solicitor made an oral application to continue the non-publication order pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act). [Redacted]. The medical expert gave evidence that if the affected person was to find out about the nature of the charges, it would have “dire consequences” and “life-threatening implications”. Magistrate Theakston dismissed the application brought by Mr Dunlop and made an order that was formally entered on 26 May 2020 in the following terms:
Until further order and pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), the [appellant’s] name not be published and there be no reference or allusion from which the [appellant’s] identification may be worked out.
[Redacted].
[Redacted].
On 17 December 2020, the appellant pleaded guilty in the Magistrates Court and the matter was committed to the Supreme Court for sentence.
On 21 May 2021, the respondent filed an application in proceeding seeking that the non-publication order made by Magistrate Theakston on 25 May 2020 be revoked. The application was supported by an affidavit of Mr Jonathon Emmett. The application was to be heard at the sentence proceeding.
On 24 May 2021 and 25 May 2021, the sentence hearing proceeded before the primary judge. In respect of the non-publication order, the medical expert gave evidence concerning the [redacted] of the affected person. A summary of that evidence is set out below. The appellant was convicted and released under s 20(1)(a) of the Crimes Act 1914 (Cth), upon him entering a recognizance in the sum of $100 to be of good behaviour for two years with further conditions: R v Monday (a pseudonym) [2021] ACTSC 99 (R v Monday (a pseudonym). The primary judge then dealt with the application to revoke the non-publication order and revoked the non-publication order in respect of the appellant’s name. Senior Counsel who appeared for the appellant at the sentence hearing placed it on the record that he had instructions to appeal the revocation of the non-publication order. After a discussion with the parties, the final orders that the primary judge made in respect of the non-publication order were as follows:
(a) The non-publication order of Magistrate Theakston dated 25 May 2020 is revoked.
(b) On the undertaking of the [appellant’s] representative to lodge a notice of appeal or leave to appeal within 7 days, in relation to reasons for sentence, her Honour made a non-publication order in respect of the offender’s name. In relation to the evidence, her Honour makes a non-publication order in respect of any matter that tends to identify the offender or the affected person. The orders in respect of the offender continue until the appeal/ application for leave to appeal is finalised or until further order.
(c) A non-publication order is made in respect of the person affected and the condition from which they suffer.
The reference to the “affected person” in orders (b) and (c) are in respect of [redacted]. Order (c) was made without a specific application brought by the parties. The primary judge detailed her reasons for revoking the non-publication order in respect of the appellant in the judgment of R v Monday (a pseudonym) (No 2) [2021] ACTSC 100 (R v Monday (a pseudonym) (No 2)). In compliance with the non-publication orders made in respect of the affected person, the sentence judgment does not refer to the affected person nor the evidence of the medical expert as to [redacted] of the affected person: R v Monday (a pseudonym).
I note in this context that R v Monday (a pseudonym) (No 2) is not published and may remain unpublished.
Thus, it is important to underline that there are two relevant orders concerning non-publication: one is the subject of this appeal. That is, the revocation by the primary judge of the order made by Magistrate Theakston concerning the non-publication order of the appellant’s name. At the same time, the primary judge made a separate order concerning the non-publication of the affected person’s name and their [redacted] condition. It is for this reason that R v Monday (a pseudonym) (No 2) is unpublished.
Grounds of Appeal
By way of an amended notice of appeal, the appellant sought leave to appeal from the order of the primary judge revoking the non-publication order made by Magistrate Theakston on 25 May 2020. The grounds of appeal are as follows:
(a) The primary judge erred in finding that:
(1) The Court had no power or discretion under s 111(1)(b)(i) of the EMP Act to make a non-publication order regarding the name of the appellant in either of the terms sought by him;
(2) The Court had no power or discretion in its inherent jurisdiction to make a non-publication order regarding the name of the appellant in either of the terms sought by him;
(3) There was no evidence that the publication of the appellant’s name was likely to prejudice the administration of justice in any relevant sense;
(4) There was no evidence concerning the likely prejudice to the administration of justice generally of publication of the appellant’s name; and
(5) The likely harm to a third party of publication of the appellant’s name is irrelevant to the administration of justice.
(b) The primary judge erred in failing to have regard to the likely effect on public confidence in the Court system of a decision that the likely harm to a third party of publication of the appellant’s name is irrelevant to the administration of justice.
The appellant sought that the non-publication order made by Magistrate Theakston be continued until further order. In the alternative, that the non-publication order made by Magistrate Theakston be continued until 1 June 2026.
Outline of Medical Expert’s evidence
A summary of the medical expert’s evidence in the proceeding before Magistrate Theakston is contained at [33]. For the purposes of this judgment, it is necessary to have regard to the evidence that the medical expert gave before the primary judge which served to update the parties and the court as to the [redacted] of the affected person.
[Redacted].
[Redacted].
[Redacted].
[Redacted].
At the hearing of the appeal, it was confirmed by counsel for the appellant that the [redacted] condition of the affected person endures. Counsel for the respondent confirmed that the Court could assume that the [redacted] of the affected person was the same as it was when the sentence proceedings were heard.
[Redacted].
[Redacted].
Relevant Legislation
It is appropriate to set out s 111 of the EMP Act in full:
111Prohibition of publication of evidence etc
(1)This section applies if a court considers that—
(a)the publication of evidence given, or intended to be given, in a proceeding is likely to prejudice the administration of justice; or
(b)in the interests of the administration of justice the names of any of the following people should not be published:
(i)a party to the proceeding;
(ii)a witness, or intended witness, in the proceeding.
(2)The court may, at any time during or after the hearing of the proceeding, make an order forbidding the publication of—
(a)the evidence or a stated part of the evidence; or
(b)a report of the evidence; or
(c)the name of the party or witness.
(3)The court may make an order under subsection (2) (a) or (b) subject to any stated condition or for any period the court considers appropriate.
(4)If a court makes an order under subsection (2), the court may, if it considers it appropriate, direct that stated people, or everyone except stated people, remain outside the courtroom for a stated period.
(5)For this section, the publication of a reference or allusion to a person is taken to be a publication of the person’s name if—
(a)the reference or allusion discloses the person’s identity; or
(b)the person’s identity might reasonably be worked out from the reference or allusion.
(emphasis added)
Issues for Determination
Prior to determining the grounds of appeal, it is necessary to first determine whether leave to appeal is required to appeal from the making or revocation of a non-publication order. That is, whether such an order is characterised as an interlocutory order, which requires leave to appeal: div 5.4.2 Court Procedures Rules 2006 (ACT) and s 37E(4) Supreme Court Act 1933 (ACT).
Is the making or revocation of a non-publication order an interlocutory order?
The orders of the primary judge were made pursuant to s 111 of the EMP Act. That section does not make specific provision for appeals from such decisions. A threshold issue arose as to whether the orders are interlocutory in nature and if so whether leave is required to pursue the appeal. Appeals challenging decisions made in respect of non-publication orders have been treated as interlocutory and therefore requiring leave: Witness v Marsden [2000] NSWCA 52; 49 NSWLR 429 (Witness v Marsden), Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 (Hogan v Australian Crime Commission).
The appellant noted that the issue arose before the primary judge and her Honour directed that if the appeal was properly characterised as an application for leave to appeal an interlocutory decision, it ought to be heard before the Full Court and the hearing be expedited.
In determining whether the relevant order is interlocutory, the question is whether the order made finally disposed of the rights of the parties in the principal proceeding between them: Licul v Corney (1976) 180 CLR 213 (Licul v Corney) at 225 (Gibbs CJ), Bienstein v Bienstien [2003] HCA 7; 195 ALR 225 at [25], Re Luck [2003] HCA 70; 78 ALJR 177 (Re Luck); Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65 at [45]. The substantive issue, that is, the sentencing exercise, has been determined. The application brought by the respondent was in respect of the order of Magistrate Theakston and not any ruling or determination made by the primary judge in the sentencing proceedings.
Initially the primary position of the appellant was that the order made by the primary judge in the context of deciding the application disposed of the rights of the appellant and the respondent as to that separate and discrete issue. Therefore, leave would not be required to appeal from the order.
In the alternative, the appellant accepted that the relevant decision went only to the publication of evidence and did not dispose of the rights between the parties. At the hearing of the appeal, counsel for the appellant conceded that the appeal on balance was likely characterised as an appeal against an interlocutory order. Counsel for the appellant sought leave to amend the notice of appeal, which in its original lodged form did not seek leave to appeal from an interlocutory order. An amended notice of appeal was subsequently filed seeking a further order that the requirement to file an application for leave to appeal from an interlocutory order be dispensed with and the appellant be granted leave to appeal the order, pursuant to r 5311 of the Court Procedures Rules.
In Brennand v Hartung and Best Practice Education Group Ltd [2014] ACTSC 326, Refshauge J stated at [19] that at the hearing of an appeal, if the Court of Appeal considered that the order the subject of an appeal was interlocutory, though the appeal had been commenced without leave, the Court of Appeal could grant leave at the hearing of the appeal if appropriate: applying Bailiff v The Queen [2011] ACTCA 7 at [1] and McColley v Commonwealth of Australia [2014] ACTCA 21 at [10]–[14].
The test that applies to the grant of leave in the context of appeals against interlocutory judgments was usefully set out by Penfold J in Miles v The Queen [2013] ACTCA 52 at [11]:
The relevant tests for an application for leave to appeal an interlocutory order in a criminal matter can be summarised as follows:
(a) Whether the decision complained of is attended with sufficient doubt to warrant its reconsideration by a Court of Appeal.
(b) Whether a substantial injustice would result if leave were refused, on the assumption that the decision is wrong.
(c) Whether a grant of leave would inappropriately fragment the criminal trial process.
(d) Whether there are any exceptional circumstances that would justify a grant of leave despite any fragmentation of the trial process.
The appellant submitted that the issue of fragmentation of the criminal process does not arise, as the sentence proceedings are complete. Therefore, tests (c) and (d) did not arise. It was submitted that the tests (a) and (b) should be answered in the affirmative.
The respondent submitted that leave must be sought to appeal from the revocation, as the decision to revoke the non-publication order is a decision of an interlocutory nature.
It is clear on the authorities that the revocation is an order made collateral to substantive proceedings and does not finally dispose of an issue between parties. It is instead intended to exist only for as long as required by the circumstances: R v Francis [2007] SASC 364; Chairperson of the Royal Commission into Management of Police Informants v Director of Public Prosecutions (Vic) [2020] VSCA 184; 61 VR 490; General Television Corporation v Director of Public Prosecutions (Vic) [2008] VSCA 49; 19 VR 68; Witness v Marsden; Hogan v Australian Crime Commission; Licul v Corney; Re Luck.
The relevant tests to determine whether leave to appeal an interlocutory decision in a criminal matter should be granted are discussed above at [60], see also R v DL [2018] ACTCA 9 at [13]–[14]. The respondent agreed that tests (c) and (d) were not relevant to the present matter. It was submitted that tests (a) and (b) were not satisfied. At the hearing it was raised that the appellant may need to file an amended notice of appeal seeking leave to appeal from an interlocutory order. The respondent confirmed that it would not oppose the filing of an amending notice of appeal.
Having considered the submissions of the parties and the relevant authorities, I have come to the conclusion that the order in question is an interlocutory order. Leave is therefore required. An amended notice of appeal was filed on 14 April 2022. I would grant leave as a substantial injustice would result if leave were refused. In my view, the decision of the primary judge is attended with sufficient doubt to warrant reconsideration by this Court. I have formed this view on the basis of the discussion of error outlined below.
Consideration
A decision made under s 111 of the EMP Act is a discretionary judgment. Review of that decision is to be conducted pursuant to the principles outlined in House v The King (1936) 55 CLR 499 (House v The King).
The issue may be characterised as a matter of procedure. As such, courts are reluctant to intervene in the exercise of the discretionary judgment involving non-publication orders, unless injustice flowed from the order appealed from: News Digital Media v Mokbel [2010] VSCA 51; 30 VR 248 at [56]; Hamod v New South Wales [2011] NSWCA 375 at [136]; Hogan v Australian Crime Commission at [20]–[22].
It is accepted that the two competing considerations in this matter are first, the principle of open justice and second, the need for protection.
It is relevant to refer to the observations of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [21]–[22], cited with approval in R v Collaery (No 7) [2020] ACTSC 165; 354 FLR 7 at [122]:
An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional society. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.
It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court’s inherent jurisdiction or an inferior court’s implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could “cause an entire destruction of the whole matter in dispute”. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer’s victim, called as a prosecution witness, may be suppressed because of the “keen public interest in getting blackmailers convicted and sentenced” and the difficulties that may be encountered in getting complainants to come forward “unless they are given this kind of protection”. So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer. The categories of case are not closed, although they will not lightly be extended. Where “exceptional and compelling considerations going to national security” require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified. The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open-court principle. The jurisdiction of courts in relation to wards of the State and mentally ill people was historically an exception to the general rule that proceedings should be held in public because the jurisdiction exercised in such cases was “parental and administrative, and the disposal of controverted questions… an incident only in the jurisdiction”. Proceedings not “in the ordinary course of litigation”, such as applications for leave to appeal can also be determined without a public hearing.
It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings.
(emphasis added, citations omitted)
It is convenient to deal with the grounds of appeal together, in light of the inherent overlap of the grounds. The respondent submitted that the primary judge did not err in finding that the Court had no power or discretion under s 111(1)(b)(i) of the EMP Act or by virtue of the inherent jurisdiction of the Court to make a non-publication order regarding the name of the appellant. For the reasons that follow, that proposition is not accepted.
The terms of s 111(1)(b)(i) of the EMP Act are clear that the names of a party to a proceeding should not be published if it is in the interests of the administration of justice not to do so. The Court also has an inherent jurisdiction to so order if it is necessary to do so to secure the proper administration of justice: Commissioner of Police (NSW) v Nationwide News Pty Ltd [2007] NSWCA 366; 70 NSWLR 643 (Commissioner of Police (NSW) v Nationwide News Pty Ltd) at [32]. It is therefore clear that a name ought not be published if it is not in the interests of the administration of justice to do so.
Emphasising the principle of open justice, the respondent submitted that publication of the identity of an offender or those close to them cannot logically be seen to jeopardise, prejudice or impede the administration of justice when the objectives of s 111 of the EMP Act and the nature of the inherent jurisdiction of the Court are considered.
I note in passing that the appellant submitted that the terms of both s 111(1)(a) and (b) were potentially engaged. The affected person was not called in the proceedings. The material that is contained in the reports of the medical expert and the medical expert’s oral evidence were not before the Court on sentence but on the respondent’s application to revoke the non-publication order. Therefore, on the facts of this case, it is s 111(1)(b) that is directly relevant.
The terms “likely to prejudice the administration of justice” and “in the interests of the administration of justice” are also found in jurisprudence addressing the inherent power of the Court to make non-publication orders. These phrases have been found to possess “broad meaning” and be “multi-faceted”: Re F (1989) 51 SASR 141 at 147; G v The Queen (1984) 35 SASR 339.
A qualification to the principle of open justice is the Court’s inherent power to make orders suppressing the reporting of its proceedings: Russell v Russell (1976) 134 CLR 495. The categories of cases justifying making such orders are not closed: R v Meegan [2014] ACTSC 263. Section 111 of the EMP Act is another restriction on the open justice principle: see generally HT v The Queen [2019] HCA 40; 269 CLR 403 (HT v The Queen) at [40] and [46].
Further, a broad review of the authorities underlines that the categories of cases where a non-publication order can appropriately be made are not closed: R v BR [2010] ACTSC 17 (R v BR) at [32]. In Australian Broadcasting Company v Parish (1980) 43 FLR 129 at 132–133, Bowen CJ observed the following in respect of the then similarly worded s 50 of the Federal Court Act 1976 (Cth):
The possible cases where an order may be necessary to prevent prejudice to the administration of justice range fairly widely. The categories of this public interest are not closed and must alter from time to time whether by restriction or extension as social conditions and legislation develop.
Commissioner of Police (NSW) v Nationwide News Pty Ltd was referred to by the primary judge in R v Monday (No 2). In particular at [89] Basten J observed that the principle of transparency
should not operate in a manner which is self-defeating...where the likely consequences are to diminish rather than enhance the operation of the judicial process and public confidence therein.
The extent to which non-publication is sought is a relevant matter in determining the balance to be struck between the competing principles. In this case the non-publication order made by Magistrate Theakston affected only the name of the appellant.
At common law and under s 111 of the EMP Act, the safety of persons has been recognised as a category of case under the administration of justice ground in which non-publication orders in the form of assigning a pseudonym can be made: Witness v Marsden; see also D1 v P1 [2012] NSWCA 314 and Kaplan v State of Victoria [2022] FCA 590.
R v PJ [2006] ACTSC 37 (R v PJ) involved a non-publication order made by a Magistrate in respect of an accused. The matter had been committed for trial. At [1] Connolly J stated that:
…an order suppressing the accused’s name was made by the learned Magistrate on the sole but proper basis that as the accused had school age children they would be identified by any publicity flowing from the publication of his name.
Nevertheless, in R v BR at [14] and [16] Refshauge J made the following observations about the above passage from R v PJ:
His Honour did not, however, give reasons for that conclusion and there was no reference to the relevant statutory provisions, or the basis on which the order might have been made. That decision might be said to be inconsistent with cases such as Re F (198) 51 SASR 141 (at 147) and X v South Australia & Ors [2002] SASC 53 (at 58), though see Medical Board of South Australia v AYHT (2001) 212 LSJS 308.
…
It is not my intention to agitate the question of whether that decision is correct and I do not do so, or whether it provides a basis for saying that potential victimisation, bullying or other prejudice that might flow to children of accused persons is a sufficient justification for the making of a non-publication order of the name of accused persons.
Notably, in The Herald and Weekly Times Ltd v County Court (Vic) [2000] VSC 280, the Court ordered non-publication of details of a security system as to do so otherwise was to expose staff at the Crown Casino to danger.
Thus, it is tolerably clear that the categories of cases within the ambit of s 111(1)(b) or the inherent jurisdiction of the Court are not closed.
Additionally, the terms of s 111 of the EMP Act envisage that orders for non-publication can be made after proceedings have been concluded. The circumstances of the affected person were submitted to be relevant to the sentencing exercise. The appellant referred to s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) in submitting that a Court must consider the probable effect that any sentence or order under consideration would have on a person’s family or dependents. It is noted here that as the appellant was sentenced for a federal offence, the appropriate section is s 16(2)(p) of the Crimes Act, which is in identical terms to s 33(1)(o) of the Sentencing Act.
Detailed evidence was advanced at the sentence proceeding as to the possible effect of the sentencing outcome on the affected person. The appellant noted that a question arises as to whether an offender would be willing to advance evidence as to that issue knowing the detail of that evidence will as a matter of course be subject to public disclosure. It was submitted that this circumstance could give rise to a matter that may prejudice the administration of justice if offenders must choose between bringing relevant evidence before the Court and potentially putting at risk the welfare and mental health of family or dependents.
In reference to the transcript of the sentence proceedings, the appellant noted that within the category of the offence, the offence was of low objective seriousness. The primary judge declined to make an order to place the appellant on the Sex Offenders Register pursuant to the Crimes (Child Sex Offenders) Act 2005 (ACT) and found that general deterrence was a matter relevant to sentence rather than specific deterrence. It was submitted that in light of her Honour’s finding on general deterrence, the publication of the appellant’s name is less important. It was noted that the appellant had already lost his employment and his mental health had declined. Therefore, the continuation of the non-publication order was in respect of a limited fact and the publication of criminal proceedings generally can serve the administration of justice in other ways. It was submitted that other means of serving the administration of justice by facilitating general deterrence had been addressed and discharged.
The position advanced by the appellant at the sentence hearing was that the publication of the appellant’s name would lead to potentially serious and life-threatening harm to the affected person. It was noted that while the question of danger and safety has been the basis for making non-publication orders in respect of witnesses as a matter of principle in other cases, it was open to the primary judge to extend that principle to what her Honour referred to as “affected persons”. The appellant underlined that in this matter, the affected person was the [redacted], of whom the primary judge had already made protective orders. In oral submissions, counsel for the appellant submitted that as the primary judge made a freestanding non-publication order in respect of the affected person, it is implicit that such an order about an “affected person” can be made.
At [21]–[22] of R v Monday (a pseudonym) (No 2) her Honour gave the following reasons for revoking the existing non-publication order:
Neither in the exercise of inherent jurisdiction nor under s 11 is there a test of whether publication is likely to cause harm to the offender or a third party. The publication of an offender’s name and details of their background almost inevitably causes reputational damage to an offender and stress to those who are close to the offender. However, unless such publication poses a risk to the administration of justice, either in the particular case or more generally, unavoidable harm to the offender or those close to them is not a relevant consideration: John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of NSW (1991) 26 NSWLR 131 at 142.
In the present case, there is no evidence that publication of the evidence or the offender’s name is likely to prejudice the administration of justice in any relevant sense. As far as the particular case is concerned, the proceedings have been finalised and justice administered. There is no evidence concerning prejudice to the administration of justice generally.
In my view, there is House v The King error in the primary judge’s approach to the exercise of the discretion under s 111 of the EMP Act.
It is correct that s 111 of the EMP Act and for that matter, the common law, do not explicitly state a test of “whether publication is likely to cause harm to an offender or a third party”. Nevertheless, such consequences have been recognised as justifying the making of relevant orders. Such consequences go to the administration of justice where the impact of not making an order may result in harm to third parties.
The interests of the affected person and of the community in protection were recognised in the non-publication order made by the primary judge in respect of the affected person and his medical condition. The appellant submitted that there is a degree of incongruity involved in refusing the affected person the protection in respect of the potentially life-threatening behaviour that may emerge upon being made aware of the nature of the appellant’s offending. There is force in this submission as the two orders are connected and overlap.
At the hearing, counsel for the respondent initially submitted that the continuing non-publication order made by the primary judge in respect of the affected person and their [redacted] condition was a separate issue to the revocation of the non-publication order in respect of the appellant’s name. Counsel for the respondent subsequently conceded that the orders were intertwined and there was an overlap between them. However, it was maintained that there was a difference in the appellant’s name being published and the appellant being able to mitigate the effects of that publication when it came to the [redacted] health of the affected person, compared to the effect of the name of the affected person being published. In my view, the two orders, one in respect of the appellant’s name that was revoked by the primary judge and the other being made by the primary judge in respect of the affected person are inevitably connected and overlap on the facts of this case.
The appellant’s case was that the potential harm to the affected person was life-threatening in respect of a person with [redacted]. Therefore, the present matter can be distinguished from John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of NSW (1991) 26 NSWLR 131 as relied upon by the primary judge at [21]. That case dealt with outcomes that were the predictable outcome in most criminal proceedings. It did not deal with the what may be regarded as exceptional circumstances regarding the affected person that exist in the present matter.
I note that that the primary judge’s finding that the proceedings had been finalised and justice administered at [22] ignored the terms of s 111 of the EMP Act which permits orders to be made after the proceedings have been concluded. The assessment of risk and danger may be prospective. It is not confined to the duration of the proceedings.
The assessment of future risk by the medical expert was not challenged in cross-examination at the hearing before Magistrate Theakston nor before the primary judge. It was emphasised that the medical expert’s opinion had not changed from the time he gave evidence before Magistrate Theakston to the time he gave evidence before the primary judge a year later at sentence.
As emphasised in HT v The Queen at [46], once it is accepted that there are certain classes of cases where a departure from the principle of open justice may be justified for good reason, it is difficult to maintain that a Court lacks jurisdiction to make a non-publication order. Such a power exists in the Court’s inherent jurisdiction and also under s 111 of the EMP Act.
In my view, error has been demonstrated. I would uphold the appeal.
Therefore, in my view, there should be a re-exercise of the relevant discretion. In doing so, I take into account the evidence available at first instance, as such evidence was conceded to be continuing at the time of the hearing of the appeal.
It is consistent with the proper administration of justice that the name of the appellant not be published.
As the non-publication order made by Magistrate Theakston was revoked by the primary judge, it is appropriate to make a fresh non-publication order concerning the appellant’s name and matters tending to identify him until further order. The non-publication order I propose is therefore in the same terms as the order made by Magistrate Theakston.
Proposed Orders
For the foregoing reasons, I would grant leave to appeal from the order of the primary judge dated 25 May 2021. I would further uphold the appeal and set aside the order of the primary judge revoking the non-publication order made by Magistrate Theakston. I would have made a further non-publication order concerning the appellant’s name and matters tending to identify him until further order.
| I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: |
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