MSB (a pseudonym) v Chief Commissioner of Police
[2018] VSCA 345
•18 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0098
| MSB (A PSEUDONYM) | Applicant |
| v | |
| CHIEF COMMISSIONER OF POLICE | Respondent |
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| JUDGES: | MAXWELL P, McLEISH JA and ALMOND AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 November 2018 |
| DATE OF JUDGMENT: | 18 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 345 |
| JUDGMENT APPEALED FROM: | [2018] VSC 374 (Garde J) |
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ADMINISTRATIVE LAW – Sex offenders registration – Possession of child pornography – Possession by child continued as adult – Whether registrable offender – Particulars of charge included date of possession as adult – Whether guilty plea admission to date in particulars – Whether offence durative – Sex Offenders Registration Act 2004 ss 6, 11 – Crimes Act 1958 s 70 – R v Hill [1979] VR 311, R v Richardson [1991] TASSC 2, R v Kardogeros [1991] 1 VR 269, applied; R v Jongsma (2004) 150 A Crim R 386, considered.
COURTS – Anonymisation – Applicant sought to have name anonymised in published reasons – Pseudonym used in trial reasons – Policy of Sex Offenders Registration Act 2004 to restrict access and disclosure of register – Risk of chilling effect on review of registration – Sex Offenders Registration Act 2004 ss 62, 63, 64 – Secretary, Department of Justice and Regulation v Zhong [No 2] [2017] VSCA 19, ABC v D1; Ex parte The Herald & Weekly Times Ltd [2007] VSC 480, applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr E Kelly | Stary Norton Halphen |
| For the Respondent | Mr C Tran | Victorian Government Solicitor’s Office |
MAXWELL P:
I have had the considerable advantage of reading in draft the reasons for judgment of McLeish JA. I agree with his Honour that leave should be granted and the appeal dismissed, for the reasons he gives.
McLEISH JA:
Introduction and summary
The applicant accessed and downloaded child pornography on his computer when he was 16 years old. In May 2014, when he was 20 years old, a search warrant was executed at the applicant’s residence and multiple items of electronic equipment were seized by Victoria Police. Child pornography was discovered on two of the pieces of equipment. The images were not accessed after early November 2012 when the applicant left school, aged 18.
As a result of these events, the applicant pleaded guilty to knowing possession of child pornography and was placed on a good behaviour bond without conviction. The Chief Commissioner of Police, who is the respondent to this application for leave to appeal, formed the view that this caused the applicant to be subject to reporting obligations under the Sex Offenders Registration Act2004 (‘the Act’). That opinion turned solely on the fact that the applicant had been sentenced for a registrable offence.[1] The details of the offending, which can be seen from the sentencing disposition of the magistrate to have been at the lower range of seriousness for the offence, have no bearing on the operation of the Act. The magistrate had declined to make an order placing the applicant on the register maintained under the Act.
[1]See [16] below.
The applicant contends that the Act has no automatic operation in respect of his offending, because the pornography came into his possession when he was a
child. As such, the magistrate had a discretion whether to apply the Act which he had declined to exercise. As a result, the applicant submitted, the Chief Commissioner should be restrained from treating the applicant as bound by the reporting obligations in the Act.
A judge in the Trial Division rejected the applicant’s arguments on the basis that the applicant was convicted of being in possession of child pornography as an adult and registration was therefore automatic under the Act.[2] For the reasons that follow, that conclusion was correct and, while leave to appeal should be granted, the appeal should be dismissed.
[2]MSB v Chief Commissioner of Police [2018] VSC 374 (‘Reasons’)
The applicant also sought an order that the Court use the letters ‘MSB’ in its reasons in place of his name, as the judge in the Trial Division did. I explain at the end of these reasons why I would take that course.
Background
On 13 March 2015 the applicant was charged with one count of knowingly possessing child pornography contrary to s 70(1) of the Crimes Act 1958.[3] The particulars of the charge were:
The accused at [address] in the State of Victoria on the 21st May 2014, did knowingly possess 92 image files which depict a person who appears to be under the age of 18 years engaging in sexual activity or in an indecent context or manner.
[3]This provision has since been repealed. See now s 51G.
The applicant pleaded guilty. In a plea hearing on 30 June 2015 at Broadmeadows Magistrates’ Court, his solicitor submitted that, as the images were downloaded when the applicant was a child, the Court had a discretion as to whether he should be registered under the Act. The magistrate adjourned the matter for 6 months by way of deferral of sentence, on condition that the applicant continue with treatment by a psychologist and that a report be prepared for the Court. The magistrate deferred the question whether he should make a sex offender registration order under s 11 of the Act.
On 9 December 2015, in a further plea hearing, the applicant’s solicitor again submitted that the Court had a discretion whether to make a sex offender registration order, by virtue of s 6(3)(a) of the Act. The solicitor provided a psychiatric report which stated that sex offender registration would interfere with the applicant’s treatment for an eating disorder as the specialist clinic where he was treated was a ward accommodating children, adolescents and young adults.
The magistrate found the applicant guilty of knowingly possessing child pornography without conviction and placed him on a 12 month good behaviour bond. The seized electronic equipment was forfeited and its destruction ordered. The magistrate made no sex offender registration order under s 11 of the Act.
The prosecutor subsequently made an application for a sex offender registration order against the applicant under s 11(2) of the Act. On 15 March 2016, the magistrate adjourned the application to a date to be fixed.
The matter came back before the magistrate on 20 December 2016. By this time the 12 month good behaviour bond had lapsed. The prosecutor submitted that the applicant had been sentenced for a registrable offence committed as an adult and that his entry onto the register under the Act was automatic. The magistrate held that he was functus officio and declined to make the order sought.
On 24 January 2017 the Chief Commissioner of Police served a notice on the applicant under s 54 of the Act informing him that he was obliged as a registered offender to inform the police of his whereabouts and personal details for 8 years from 9 December 2015. That notice was disputed by the applicant’s solicitor and in November 2017 the applicant was informed that the Chief Commissioner intended to serve a second notice.
The applicant then sought declaratory relief to the effect that he was not a registrable offender under the Act and that any notice issued to him under s 54 was invalid. Alternatively, he sought judicial review of the decision to classify him as a registrable offender, and an order directing the Chief Commissioner to remove all information held in relation to the applicant from the register under the Act.
Legislative provisions
The Act’s purpose is to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details in order to reduce the likelihood that they will reoffend and to facilitate the investigation and prosecution of any further offences they may commit, as well as to prevent them from working in child-related employment.[4] The Act provides for a Register of Sex Offenders (‘the register’) and requires registrable offenders to report specified personal details for inclusion in the register.[5]
[4]Section 1(1).
[5]Sections 1(2)(a) and (b), 12 and 62.
Section 6(1) of the Act stated, at the relevant time:
Subject to subsections (3) to (6), a registrable offender is a person whom a court has at any time (whether before, on or after 1 October 2004) sentenced for a registrable offence.[6]
[6]Extensive changes to the relevant provisions were made by the Sex Offenders Registration Amendment (Miscellaneous) Act 2017.
It is not in dispute that the applicant was sentenced for a registrable offence. Under s 3 of the Act, ‘sentence’ includes a sentence within the meaning of the Criminal Procedure Act 2009, s 3 of which in turn picks up orders made under the various provisions of the Sentencing Act 1991 including s 7(1)(i) (‘without recording a conviction, order the release of the offender on the adjournment of the hearing on conditions’). A registrable offence, as defined by s 7 of the Act at the relevant time, included a Class 2 offence. Schedule 2 of the Act classified an offence against s 70(1) of the Crimes Act 1958 as a Class 2 offence.
Section 6(3)(a) of the Act stated at the relevant time that:
… a person is not a registrable offender merely because he or she—
(a) as a child committed a Class 1 or Class 2 offence for which he or she has been sentenced; …
Section 11 of the Act, which enables a court to make a sex offender registration order, stated at the relevant time that:
(1) If a court finds a person guilty of an offence that is not a Class 1 or Class 2 offence (including an offence that is a Class 3 or Class 4 offence), it may order that the person comply with the reporting obligations of this Act.
(2) A court on sentencing a person for a Class 1 or Class 2 offence committed as a child may order that the person comply with the reporting obligations of this Act if, because of section 6(3)(a), the person is not a registrable offender.
(2A) If a court finds a person guilty of an offence committed as a child that is not a Class 1 or 2 offence (including a Class 3 or 4 offence) it may order that the person comply with the reporting obligations of this Act.
(3) The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.
(4) For the purposes of subsection (3), it is not necessary that the court be able to identify a risk to particular people, or a particular class of people.
(5) The court may only make an order under this section if it has imposed a sentence in relation to the offence (other than an order referred to in section 360(1)(b), 360(1)(c) or 360(1)(d) of the Children, Youth and Families Act 2005).
(6) The court may only make an order under this section if an application for the making of the order is made by the prosecution not later than 45 days after the sentence is imposed.
…
The Act provides for notice to be given to registrable offenders of their reporting obligations. Section 54 states that the Chief Commissioner ‘may, at any time, cause written notice to be given to a registrable offender’ of his or her reporting obligations and the consequences that may arise if he or she fails to comply with those obligations.
Section 62 of the Act requires the Chief Commissioner to establish and maintain the register and specifies what information it is to contain. Section 63 requires the Chief Commissioner to ensure that the register is only accessed by persons authorised by him or her to do so, and to ensure that personal information in the register is only disclosed in accordance with the Act. Section 64 prohibits a person with access to the register from disclosing personal information in it to another person, subject to exceptions that are not presently material.
Primary judge’s reasons
The applicant submitted at first instance that he fell within the exception in s 6(3) of the Act. It was submitted that the offence of possessing child pornography was ‘durative’ and the date of alleged offending in the charge was only a particular of the offence, rather than one of its essential elements. The applicant had committed the offence when a child, which attracted the exception in s 6(3). It was also submitted that the decision of the magistrate not to make a sex offender registration order precluded the Chief Commissioner from treating the applicant as a registrable offender.
The respondent argued that by entering a plea of guilty, the applicant had admitted to having committed the offence as charged in the charge-sheet, including the date set out, at which time he was an adult (aged 20). This made the applicant a registrable offender under s 6(1) so that s 54 was enlivened.
The primary judge held that the applicant had pleaded guilty to an offence committed by him when he was an adult and that he was therefore a registrable offender by operation of the Act.
The judge held that, by pleading guilty, the applicant had admitted the essential facts relating to the offence under s 70(1), including the date of 21 May 2014.[7] Since the applicant was an adult on that date, he was a registrable offender under s 6(1) of the Act.[8] Section 6(3)(a) did not apply because the applicant was not a child when the offence was committed.[9] The judge held that the words ‘merely because’ in s 6(3)(a) excluded from the exempting operation of the provision a person who was a registrable offender by reason of one or more Class 1 or Class 2 offences committed as an adult, including a multiple offender who has committed a registrable offence both as a child and as an adult.[10]
[7]Reasons [54].
[8]Ibid [57]–[58].
[9]Ibid [65].
[10]Ibid [72](c).
The judge rejected the applicant’s submission that s 6(3)(a) should be interpreted to exclude durative offences committed as a child, even if they were continued as an adult. He concluded that ‘the durative nature of possession does not transfer the date of the offence from when the defendant is found in possession of child pornography to the date that the defendant downloaded or obtained the offending images or material’.[11] The judge stated that the offence of knowing possession of child pornography is committed on each day that the material is knowingly possessed. That period included every day between the applicant’s 18th birthday and the execution of the search warrant on 21 May 2014.[12]
[11]Ibid [72](a).
[12]Ibid [72](b).
The judge held that the magistrate had lacked power to make an order under s 11(2). This followed from the inapplicability of s 6(3)(a). His refusal to make an order did not detract from the ordinary operation of the Act and the Chief Commissioner’s powers and obligation to inform the applicant of his reporting obligations were unaffected.[13]
[13]Ibid [66].
Proposed grounds of appeal
The applicant seeks leave to appeal on the following grounds:
Ground 1
His Honour erred in law in finding that, in relation to the offence set out under s 70(1) of the Crimes Act 1958 (Vic), the date on which the offence is committed is an essential fact.
Ground 2
His Honour erred in finding, as a matter of law and as a matter of fact, that the Applicant’s plea was an admission that he committed the offence on the date stated in the charge-sheet.
Ground 3
His Honour erred in finding, as a matter of law and as a matter of fact, that the Applicant was an adult and not a child when the offence for which he was charged was committed.
Ground 4
His Honour erred in finding, as a matter of law and as a matter of fact, that ss 6(3)(a) and 11(2) of the Sex Offenders Registration Act 2004 do not apply in the Applicant’s case because these sections apply only to a person who committed a relevant offence as a child, where that offence committed as a child is the only reason why that person might be a registrable offender.
Submissions of the parties
The applicant submitted that the judge was wrong to state that the date of the offending was an essential element of the offence, rather than a mere particular included in the interests of procedural fairness.[14] It was submitted that possession of child pornography was an inherently ‘durative’ offence, the date charged being immaterial.[15] It followed that no individual moment of possession is more material than any other. Any moment of possession could have been chosen and made equal claim to being an essential element of the offence. The applicant submitted that the judge erred in accepting that the charged offence was committed when the applicant was an adult but not when he was a child.
[14]Reliance was placed on R v Dossi (1918) 13 Cr App R 158, 159 (Atkin J) and WGC v The Queen (2007) 233 CLR 66, 80–1 (Kirby J).
[15]R v Jongsma (2004) 150 A Crim R 386, 400–1 [28] (Batt JA).
The applicant submitted that it followed that the judge had erred in finding that the applicant’s plea of guilty was an admission that he had committed the offence on the date in the charge. It was submitted that a plea is entered to the offence, not to the words in the charge.[16] Moreover, the plea proceeded on the basis that the offending began in 2010 and continued until the seizure of the items. There was a single durative offence that started when the applicant was a child.
[16]Reliance was placed on Maxwell v The Queen (1996) 184 CLR 501, 510 (Dawson and McHugh JJ), R v Broadbent [1964] VR 733, 735 (O’Bryan J, with Hudson and Adam JJ agreeing) and De Kruiff v Smith [1971] VR 761, 765 (McInerney J).
The applicant contended that the judge had left unanswered the question whether a person who pleads guilty, and is sentenced after having committed a single registrable offence when both a child and an adult fell within the scope of s 6(3)(a) and therefore s 11(2). It was submitted that the word ‘merely’ in s 6(3)(a) indicated that an additional factor aside from child offending was required before a person sentenced for an offence committed as a child was found to be a registrable offender. The applicant argued that it was the role of s 11(2) to entrust the decision as to registration to the court whenever the relevant offence was committed when the accused was a child.
The respondent accepted that the date of possession was not an essential element of the offence against s 70(1). However, it was submitted that the judge had been correct to find that the applicant had pleaded guilty to the offence as charged because the plea of guilty involved admitting to the essential facts ascertained by reference to the charge and the particulars.[17] The respondent submitted that this was enough to dispose of the appeal because the charge proceeded on the basis that the offence had been committed as an adult on the date charged. Describing the offending as ‘durative’ did not alter that fact or justify ignoring it. The respondent also noted that the applicant stopped downloading child pornography when he was 18 years old. It was said that it would be arbitrary to treat him only as a child offender. The respondent submitted that the construction of s 6(3) did not need to be decided because the applicant needed to succeed on the preceding grounds in order for it to arise.
[17]Reliance was placed on R v Richardson [1991] TASSC 2 [18]–[19] (Underwood J, with Green CJ and Wright J agreeing), R v Hill [1979] VR 311, 312–13, R v Kardogeros [1991] 1 VR 269, 270, 275–6 (Crockett and JH Phillips JJ), Abbott v Western Australia (2005) 152 A Crim R 186, 187 [2], 188 [4] (Steytler P, with Pullin JA agreeing) 197 [65] (Roberts-Smith JA, with Pullin JA agreeing) and PPP v The Queen (2010) 27 VR 68, 81–2 [42] (Redlich JA, with Neave JA and Lasry AJA agreeing).
Analysis
The judge held that, by pleading guilty to the offence, the applicant ‘admitted the essential facts and law relating to the offence’, including ‘the date on which the offence was committed’.[18] The judge did not hold that the date on which the offence was committed was an element or ingredient of the offence, in the sense that proof of the date of possession was a matter essential to the applicant’s guilt. Such a conclusion would have been in error because, for the purposes of sustaining a conviction, the date on which the applicant had possession of the relevant material was irrelevant.[19] To the extent that the applicant submitted that the judge had fallen into this error, the submission must be rejected.
[18]Reasons [54].
[19]R v Dossi (1918) 13 Cr App R 158, 159–60 (Atkin J) and WGC v The Queen (2007) 233 CLR 66, 80 [43] (Kirby J).
In stating, as he did, that the date of the offence was an essential fact ‘relating to the offence’, the judge was entirely correct. That is because, on a plea of guilty, the accused is taken to have admitted all the essential facts constituting the offence, including those facts in the particulars on the indictment.[20] Particulars serve not only the purpose of putting an accused on notice of what criminal conduct is alleged,[21] but of identifying the offence for which sentence is imposed in the event of guilt being established.[22]
[20]R v Riley [1896] 1 QB 309, 318 (Hawkins J); R v Broadbent [1964] VR 733, 735 (O’Bryan, with Hudson and Adam JJ agreeing); R v Inglis [1917] VLR 672, 674; R v Hill [1979] VR 311, 312; R v Kardogeros [1991] 1 VR 269, 270, 275–6 (Crockett and JH Phillips JJ); R v Richardson [1991] TASSC 2 [18]–[19] (Underwood J, with Green CJ and Wright J agreeing).
[21]Johnson v Miller (1937) 59 CLR 467, 501 (McTiernan J); Baiada Poultry Pty Ltd v Victorian Workcover Authority (2015) 257 IR 204, 208 [5] (Ferguson and McLeish JJA).
[22]PPP v The Queen (2010) 27 VR 68, 80–1 [42] (Redlich JA, with Neave JA and Lasry AJA agreeing); Jarratt (a pseudonym) v The Queen [2018] VSCA 150 [62] (Maxwell P).
The role played by particulars in identifying the conduct to which a plea of guilty relates can be seen from three of the cases relied upon by the respondent. In Hill, the offender pleaded guilty to the offence of burglary under s 76 of the Crimes Act 1958, which relevantly provided that a person was guilty of burglary if he entered a building as a trespasser with intent to commit an offence involving an assault to a person in the building. The count upon which the offender was charged alleged that he had entered a building ‘with intention to commit an unlawful and indecent assault’. The Full Court held that the plea of guilty required the conclusion that the applicant entered the building with the intention of committing an indecent assault.[23]
[23]R v Hill [1979] VR 311, 313.
Similarly, in Richardson, the offender pleaded guilty to a charge of aggravated burglary. The indictment alleged that he had entered a building as a trespasser with intent to commit the crimes of rape and stealing. The Full Court of the Supreme Court of Tasmania referred to the authorities to the effect that a plea of guilty is an admission of all the essential facts necessary to constitute the offence charged and continued:
[B]urglary can be committed in a number of different ways, and without resort to the particulars of the count, it would not be possible to ascertain what essential facts are admitted by a plea of guilty. …
In the authorities which I have cited, the reference to an admission of the essential facts by a plea of guilty must be a reference to the particulars for nowhere else are facts pleaded. The crime charged to which the respondent pleaded guilty comprised a statement of crime, ‘aggravated burglary’ and, his plea constituted an admission of the facts pleaded in the particulars necessary to constitute the commission of that crime. …[24]
[24]R v Richardson [1991] TASSC 2 [18]–[19] (Underwood J, with Green CJ and Wright J agreeing).
The Court referred to s 311(1) of the Criminal Code (Tas), which was in terms very similar to cl 1(b) of Sch 1 to the Criminal Procedure Act 2009. The latter provision requires that a charge must state the offence that the accused is alleged to have committed and ‘contain the particulars … that are necessary to give reasonable information as to the nature of the charge’.[25]
[25]See Criminal Procedure Act 2009, ss 6(3), 159(3).
The respondent in Richardson was on this basis found to have admitted that his state of mind at the time of entering the building was to commit the crime of stealing and the crime of rape.[26]
[26]R v Richardson [1991] TASSC 2 [19] (Underwood J, with Green CJ and Wright J agreeing).
In both these cases, the courts accepted that the offender could have sought to persuade the sentencing judge to proceed on a basis contrary to the particulars. This might, for example, involve sentence being passed on an agreed statement of facts differing from the particulars on the indictment.[27] But that does not deny that sentencing will otherwise proceed on the basis of the particulars in the indictment (or charge-sheet, as the case may be).
[27]See, eg, Pun v The Queen [2017] VSCA 219 [21] (Redlich and McLeish JJA).
The third case is Kardogeros. The applicant pleaded guilty to a charge of trafficking in a drug of dependence, namely ‘Cannabis L’ in a commercial quantity. He sought to appeal against conviction on the basis that a miscarriage of justice had ensued because the quantity of cannabis found in his possession was less than the commercial quantity. Crockett and JH Phillips JJ upheld the Crown’s submission that the plea of guilty was ‘a formal concession or acceptance by the applicant that he did on the material date traffick in a commercial quantity of the drug thus specified’.[28] Both the date and the drug specified could be ascertained only from the terms of the presentment. Moreover, the commercial quantity of the drug specified could not be ascertained without resort to the legislation. Again, the essential facts to which the plea of guilty related travelled beyond the essential elements of the offence itself. In this case, the presentment added important detail about the identity of the drug of dependence.
[28]R v Kardogeros [1991] 1 VR 269, 275–6.
It follows that, because the applicant in the present case pleaded guilty to a charge alleging that he was knowingly in possession of child pornography on a particular date, this established that he committed the offence on that date. The fact that he also possessed the pornography on other dates is immaterial. He was not charged with offending on other dates or over a specified period. For that reason, nothing is added to the analysis by describing the act of possession as ‘durative’.[29] The offence charged cannot be described in that way. It was constituted by being knowingly in possession on the single day alleged. While the duration of possession over some longer period may bear on sentence,[30] that does not make such possession an essential fact constituting the offence charged in the present case.
[29]R v Jongsma (2004) 150 A Crim R 386, 400 [28] (Batt JA).
[30]Ibid.
The applicant contended that the plea material and the preliminary brief filed by the prosecutor showed that the case proceeded upon the basis of a plea of guilty to possession over a specified period, including when the applicant was a child. Counsel submitted that the event giving rise to registration under the Act was the passing of sentence, and submitted that this required reference to material beyond the particulars of the charge. It was further contended that the Act discloses an intention that placing a person on the register who offended as a child was not automatic but required the exercise of a judicial discretion. In that regard, it was contended, s 6(3)(a) had to be read as excluding persons sentenced for an offence committed ‘in whole or in part’ as a child.
It may be accepted that the plea proceeded on the basis that the applicant first possessed the relevant material when he was a child. That would legitimately help to place the offending in context for sentencing purposes. But that does not deny that the applicant, by his plea of guilty, admitted to the essential facts in the indictment, including that he was charged with possession of child pornography at a time when he was an adult. The additional information went to the context of that specifically alleged offending. This was not a case where the applicant sought to be sentenced on a basis contrary to that particularised.
In my opinion, the Act provides no support for the argument that the basis upon which sentencing proceeds is determinative as to placement on the register. It is true that the act of sentencing triggers the operation of s 6(1). But the sentencing must be for a ‘registrable offence’. It is therefore necessary to focus upon the offence. More importantly for present purposes, the exclusion in s 6(3) turns on the offence for which a person has been sentenced, and whether he or she was a child when the offence was committed. The exception depends upon the commission of an offence ‘as a child’, not upon the basis on which sentencing for that offence proceeded.
In the circumstances, there is no occasion to consider the applicant’s submission that s 6(3) of the Act should be read as providing that a person is not a registrable offender merely because he or she committed a class 1 or class 2 offence ‘wholly or in part’ as a child. For the reasons given, the offence for which the applicant was sentenced was committed only as an adult. However, it may be noted that while it is true that s 11(2) of the Act provides for a discretion in the case of a person being sentenced for an offence committed ‘as a child’, that discretion is enlivened only where the specific criterion in s 6(3)(a) is met. In other words, the ambit of the policy to which the applicant pointed, that offending by children is to be the subject of judicial discretion rather than the automatic operation of the Act, is determined by s 6(3)(a) and not by any wider policy consideration said to emerge from its terms. For the reasons given, the exception depends on the offender having committed an offence, for which he or she is sentenced, as a child. That criterion serves to define the policy of the provision and identification of any policy having a broader operation is merely speculative.
It follows that the applicant’s arguments must be rejected. I would grant leave to appeal but would dismiss the appeal.
Anonymisation
The applicant sought an order that he be referred to in the Court’s judgment by the pseudonym ‘MSB’. That course was taken by the trial judge but the application for leave to appeal was filed in the applicant’s own name. In support of the application, the applicant’s solicitor swore an affidavit to which he exhibited, among other things, a short submission made to the trial judge in support of the corresponding application made after trial. That submission contended that publication of the applicant’s name risked ‘physical or psychological harm’, which was not further specified, and ‘damage to his reputation’. The submission noted that access to information held on the register is regulated by the Chief Commissioner. The solicitor’s affidavit also exhibited a psychological assessment by Dr Aaron Cunningham dated 24 June 2015 which had been relied upon at the plea hearing.
A pseudonym order, like the Court’s practice in certain cases where, for example, use of the offender’s name may lead to the identification of a victim of sexual offending, ‘de-identifies a party or witness but does not prohibit or restrict the publication or other disclosure of information in connection with the proceeding’.[31] As such, the provisions of the Open Courts Act 2013 concerning suppression orders and closed court orders are not applicable. The question is instead in the inherent jurisdiction of the Court.
[31]Secretary, Department of Justice and Regulation v Zhong [No 2] [2017] VSCA 19 [3] (Santamaria, Ferguson and McLeish JJA) (‘Zhong’), citing Hunter v Australian Football League [2015] VSC 112 [4]–[6] (John Dixon J) and ABC-1 v Ring [2014] VSC 5 [6]–[16] (Bell J). Publication may be otherwise restricted, for example, in relation to the identification of victims of sexual offences: Judicial Proceedings Reports Act 1958 s 4.
This Court in Zhong endorsed the following principles governing the making of pseudonym orders stated by J Forrest J in ABC v D1; Ex parte The Herald & Weekly Times Ltd:
First, that the principal rule is that judicial hearings should take place in open court: publicly and in open view, with no restriction on reporting. This is a fundamental precept underpinning the administration of justice.
Second, that in certain circumstances the administration of justice requires a qualification of the general rule. There will be circumstances where modifications of the general rule are necessarily made to ensure that the administration of justice is not frustrated. These exceptions are many and varied and cannot be prescriptively identified.
Third, that the test to be applied by the court in making a pseudonym order is … whether it is necessary to do so in order not to prejudice the administration of justice.
Fourth, that a court, in determining whether to make a pseudonym order, is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principal rule of open justice in determining whether the administration of justice warrants the making of the order. Relevant to these individual considerations is whether there is a real risk of the party or witness suffering psychological harm as a result of publication of his or her name or the names of other parties. Also relevant is the real risk of a party not proceeding with an action in the event that he or she or another person is identified.
Fifth, that in certain circumstances, particularly those involving sexual assaults, it may be appropriate not only to suppress the name of the plaintiff but also to suppress the name of the defendant or defendants.
Sixth, that in determining whether to make such an order, a court is entitled to take into account the fact that there will still be a reporting of the proceeding and that the hearing itself will be conducted in open court, subject to the restrictions imposed by the pseudonym order.
Seventh, in determining whether it is necessary to make such an order, usually the proofs must be cogent and will not be satisfied by mere belief on the part of a party that the order is necessary. However, in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences. [32]
[32]Zhong [2017] VSCA 19 [4] quoting ABC v D1; Ex parte The Herald & Weekly Times Ltd [2007] VSC 480 [65]–[71].
Counsel for the applicant pointed to the plea material which showed the applicant to exhibit autism spectrum disorder and a pervasive condition of impaired social interaction. The Court was invited to draw inferences as to the possibility of psychological and other harm as contemplated by the principles set out above.
Counsel also submitted that to disclose the applicant’s name in circumstances where that and other information on the register would normally only be able to be disclosed in accordance with the Act would have a chilling effect on legal challenges to registration. It was pointed out that s 63 of the Act restricts access to the register to authorised persons. Further, the purpose of the Act is preventative rather than punitive.[33]
[33]WBM v Chief Commissioner of Police (2012) 43 VR 446, 457 [44], 474 [126] (Warren CJ, with Hansen JA agreeing), 475 [134] (Bell AJA).
The respondent neither opposed nor consented to the application. Counsel submitted that the analysis in Zhong was applicable. He submitted that, while the restrictions on publication contained in the Act did not directly bind the Court, regard should be had to the policy of the Act. Counsel accepted that the legislative purpose of the Act would suggest the anonymisation of those named on the register. It was submitted that regard should also be had to the fact that applications under s 11 of the Act are, unless the court orders otherwise, made in open court. Finally, counsel very fairly submitted that the proceeding in this Court had only been necessitated because the magistrate had been led into the mistaken view that the question of registration was one for his decision, rather than flowing automatically under the Act.
Although the guilty plea and sentence of the applicant are matters of public record, the contents of the register maintained under the Act are not. The prospect of public disclosure of a person’s presence on the register may well discourage persons from litigating claims regarding the lawfulness of their presence on the register. The present case affords a possible illustration, given that, as the respondent submitted, the need for judicial review arose as a consequence of confusion in the Magistrates’ Court as to whether s 11(2) was called into play. However, the applicant filed and pursued his application for leave to appeal in his own name, and so the deterrent effect is not present here.
It is true that sentencing judges or magistrates often state that a person is, by virtue of their offending, placed on the register and that such statements are freely reported to the public at large. Equally, the making and outcome of an application under s 11(2) is ordinarily a matter of public record. However, such disclosure is more or less contemporaneous with a person’s entry onto the register. The policy of the Act is generally against subsequent disclosure of what is in the register, which may take place years or decades later.
An anonymisation order is not necessarily appropriate in every case brought in connection with the register. For example, some offenders and their crimes are sufficiently recent or notorious that revelation, through reasons of a court, that their offending had caused them to be placed on the register would not lead to public disclosure additional to that contemplated by the Act. There may be other factors tending against, or in favour of, an order in different cases. Each case will of course depend on its own circumstances.
Here, the effect of naming the applicant would be to give wide publicity to the fact that he is named in the register as a result of having been sentenced for the
knowing possession of child pornography. The policy of the Act, as mentioned, is generally against such disclosure. In addition, the applicant would not have needed clarification of his status with respect to the register if the proper operation of the Act had been appreciated in the sentencing proceeding. These factors point in favour of anonymisation. The countervailing interest in open justice must in my opinion be accommodated to the identified policy of the Act. It must be borne in mind that the Act adopts that policy as part of a balance in which the community is sought to be protected by the maintenance and proper use of the register in accordance with the Act.
I would therefore accede to the application. No order is necessary as the applicant sought only that this Court’s reasons for judgment employ the pseudonym used by the trial judge.
ALMOND AJA:
I too have had the considerable advantage of reading in draft the reasons for judgment of McLeish JA. I agree with his Honour that leave should be granted and the appeal dismissed, for the reasons he gives. I also agree that the applicant’s name in the reasons for judgement should be anonymised.
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