Monday (a pseudonym) v The Queen (No 2)

The Supreme Court of the Australian Capital Territory considered an application by Mr Monday (a pseudonym) for a stay of the revocation of a non-publication order concerning his identity, or for a new non-publication order. Mr Monday had pleaded guilty to possessing child abuse material and received a recognizance release order. The Chief Justice had revoked an existing non-publication order but made an interim one, which was subsequently extended by the Court of Appeal for 28 days. Mr Monday had applied for special leave to appeal to the High Court, and the current application was made on the basis that the expiry of the non-publication order would render the subject matter of his special leave application moot.

The legal issues before the Court were whether it had the power to grant a further non-publication order, and if so, whether it was appropriate to do so. The Court considered two alternative orders sought: a continuation of the stay granted by the Court of Appeal, or a fresh order under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Both parties agreed that the Court possessed the power to make an order under s 111 and that the Court was not functus officio.

The Court reasoned that it was appropriate to make a further non-publication order under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) because the subject matter of the special leave application to the High Court would be destroyed if the order expired. The Court noted that s 111(2) expressly empowers the making of such an order "at any time during or after the hearing of the proceeding," and that doing so was in the interests of the administration of justice. Consequently, the Court made a new non-publication order.

The Court ordered that, pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), the publication of the appellant's name and any information from which his identity could be inferred is forbidden until the dismissal of the application for special leave to appeal to the High Court, the determination of the appeal by the High Court, or the discontinuance or abandonment of any such application or appeal, whichever occurs first.