Nagi v Director of Public Prosecutions (NSW) - [2009] NSWCCA 197

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
NAGI v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2009] NSWCCA 197

FILE NUMBER(S):
2008/13633

HEARING DATE(S):
24 July 2009

JUDGMENT DATE:
4 August 2009

PARTIES:
Hassan Nagi (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

JUDGMENT OF:
Basten JA Hulme J Johnson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/13633

LOWER COURT JUDICIAL OFFICER:
Bennett DCJ

LOWER COURT DATE OF DECISION:
3 June 2009

COUNSEL:
C Steirn SC/M Johnston (Applicant)
M Grogan (Respondent)

SOLICITORS:
Va Lawyers Pty Ltd (Applicant)
S Kavanagh (Respondent)

CATCHWORDS:
APPEALS – jurisdiction – interlocutory order – non-publication order impacting upon applicant – whether attracts appellate jurisdiction – [Criminal Appeal Act 1912] (NSW), s 5F
CRIMINAL PROCEDURE – non-publication order – factors relevant to sentencing proceedings – confidential information relating to accused – tension between principle of open justice and other public interests – whether statutory basis for non-publication – whether prejudice sufficient to justify non-publication
PRACTICE & PROCEDURE – formal publication of orders – non-publication order – no formal publication of order staying operation of non-publication order – whether staying order to be inferred – uncertainty as to continued operation of non-publication order
WORDS & PHRASES – "non-publication order" – "open justice" – "proper administration of justice" – "JusticeLink"

LEGISLATION CITED:
[Crimes (Appeal and Review Act 2001] (NSW), s 107, Pt 8
[Criminal Appeal Act 1912] (NSW), s 5F
[District Court Rules 1973] (NSW), r 12, Pt 53
[Evidence Act 1995] (NSW), ss 126A, 126E, Pt 3.10, Div 1A
[Public Health Act 1991] (NSW), s 17

CATEGORY:
Principal judgment

CASES CITED:
[Attorney-General (NSW) v Stuart] (1994) 34 NSWLR 667
[Bozatsis and Spanakakis] (1997) 97 A Crim R 296
[Brennan v State of New South Wales] [2006] NSWSC 167
[Burrell v Regina] [2008] NSWCCA 276
[Director of Public Prosecutions v PM] [2006] NSWCCA 297; 67 NSWLR 46
[Hall v Nominal Defendant] [1966] HCA 36; 117 CLR 423
[House v The King] [1936] HCA 40; 55 CLR 499
[John Fairfax & Sons Ltd v Police Tribunal of New South Wales] (1986) 5 NSWLR 465
[Kocer v R] [2006] NSWCCA 328
[Lethlean] (1995) 83 A Crim R 197
[New South Wales Commissioner of Police v Nationwide News Pty Ltd] [2007] NSWCA 366; 70 NSWLR 643
[Norvenska v Director of Public Prosecutions (Cth)] [2007] NSWCCA 158
[Powch] (1988) 14 NSWLR 136
[R v Cheng] [1999] NSWCCA 373; 48 NSWLR 616
[R v Edelsten] (1989) 18 NSWLR 213
[R v Kwok] [2005] NSWCCA 245; 64 NSWLR 335
[R v Penalosa-Munoz] [2004] NSWCCA 33; 143 A Crim R 594
[R v Steffan] (1993) 30 NSWLR 633

TEXTS CITED:

DECISION:
(1) Grant the applicant leave to appeal from the interlocutory judgment or order of Bennett DCJ made on 3 June 2009, setting aside the order proscribing the publication of the applicant’s status as a person suffering human immunodeficiency virus infection.
(2) Dismiss the appeal.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/13633
BASTEN JA
RS HULME J
JOHNSON J
4 August 2009

Hassan NAGI v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Judgment

BASTEN JA: The applicant was a taxi driver. He was charged in February 2009 with a number of counts of sexual assault on three women, the offences having occurred between 18 July 2003 and 1 June 2007. On 12 February 2009 he pleaded guilty to an indictment containing six counts. On that date, he appeared before Bennett DCJ in the District Court at Sydney and was formally convicted of each offence. The sentencing proceeding commenced on that day but was adjourned to 28 April 2009, the applicant being granted bail.
In preparation for his sentencing he spoke to a psychiatrist, who appears to have advised him to undergo tests to determine his HIV status. He tested positive to HIV. Although there was medical evidence to suggest that he had been infected several years prior to 2009, there was no evidence that any member of his family or the complainants in relation to the offences had been infected. The evidence did not establish with any clarity whether he was HIV positive at the time of any (or all) of the offences and the evidence was in any event inconsistent with him having knowledge of any such infection prior to his conviction.
When the matter came back before the sentencing judge on 28 April 2009, his counsel asked, with the consent of the prosecutor, that his Honour “close the court for a short period of time whilst [the application] is ventilated”: Tcpt, 28/04/09, p 1(25). His Honour then stated that he would close the Court “until I hear what this application is and once I know the nature of it and what my decision is I’ll open the court again for the purposes of announcing the decision”: Tcpt, p 1(30). After some further discussion, his Honour noted the “simple point” in issue was that “there should be no reference to the fact of the infection in the course of the proceedings”: Tcpt, p 2(40).
There followed a discussion as to routine procedural matters, counsel for the prosecution noting that he would tender a number of victim impact statements. It was anticipated that the matter would need to be adjourned for further hearing on 27 May 2009.
After a short adjournment, the Court was reopened: Tcpt, p 9(10). The victim impact statements were tendered, as was a custodial record of the applicant. Bail was continued.
According to the transcript of 27 May 2009, the Court was closed when the hearing commenced, his Honour stating (Tcpt, p 1(25)):
“There’s another question that I will need assistance on and that arose last time we were together in this matter when the proceedings were in camera, and it’s to do with non publication.
STEIRN [Counsel for the applicant]: With non publication? I’ve dealt with that in a practical way your Honour hopefully. It’s akin to assistance to authority [sic] if that assists you.”
His Honour then provided counsel for the applicant with a copy of a judgment in another matter in which it appeared a similar problem had arisen. (That judgment was not provided to this Court.) There was an adjournment for 45 minutes following which the proceedings on sentence resumed and a witness was called by the applicant. It was accepted that after the adjournment the Court was no longer closed. Following the oral evidence, counsel for the applicant tendered two reports by Dr John Roberts, a psychiatrist, dated 9 March and 17 March 2009, together with three reports by Dr Pam Konecny, dated 23 March, 28 April and 25 May 2009, relating to his HIV status. Other material was tendered, but was not before this Court and was not suggested as having any bearing on the present application. In addition, counsel for the applicant handed up what were described as an “outline of confidential submissions”, a “confidential chronology” and further confidential submissions and a reply to the prosecution submissions on sentence. Each of these documents was put before this Court.
Thereafter, counsel made submissions with respect to sentence in the course of which there came a point at which his Honour indicated that he would again close the Court so as to hear submissions in relation to the confidential matters: Tcpt, 27/05/09, p 21(50). That was done shortly thereafter: p 24(50).
During further discussion of the evidence, his Honour referred to a New South Wales Department of Health document which had been handed to him on the previous hearing day and to which further reference will be made below. His Honour noted (Tcpt, 27/05/09, p 29(45)):
“I have had a look at the NSW Health document and the point I tried to bring to your attention earlier with reference to that judgment in Montgomery was this. We start from a principle of open justice, the court’s are open and in that case I was not prepared to protect from disclosure the person charged with a different offence to this, he was charged with infecting his wife and consequently his children.
…
So it’s a different case I know but as a matter of general principle why should I refrain from referring to his plight in the judgment having made orders protecting from publication the identities of the complainants? Why should he have the benefit of that?”
Counsel for the applicant then put various arguments to his Honour as to why a non-publication order should be made and the fact of HIV infection should be excluded from the published judgment, to which submissions this Court was taken in some detail. They need not be repeated here, because their primary relevance to the argument was in relation to whether or not his Honour had power to make the order sought in the circumstances of the case. For reasons which will be noted below, his Honour dealt with the matter primarily on the basis that he did have such a power, but that it was not appropriate to exercise it in the circumstances before him. The distinction between a failure to recognise an existing power and refusal, in the exercise of discretion, to exercise the power is undoubtedly significant. However, where the power is narrow in scope and the conditions of its engagement are restricted, the question of practical significance may, as in this case, turn on whether or not his Honour properly apprehended the conditions pursuant to which the power was engaged.
On 3 June 2009 Bennett DCJ delivered a judgment with respect to the approach he intended to take in relation to the disclosure of the health status of the applicant. The judgment supplied to this Court was stamped “Draft” on the front cover and did not have the usual verification at the end. Nevertheless, it concluded at [41]:
“It is not appropriate to withhold publication of the offender’s health status. Accordingly, I set aside the order proscribing the publication of the Offender’s status as a person suffering Human Immunodeficiency Virus infection.”
Neither party suggested in this Court that the judgment was otherwise than in final form, or that there was anything tentative about the order proposed in the reasons. An order in accordance with the second sentence quoted above is recorded in the computer record known as “JusticeLink”. The form of the judgment is explained by his Honour’s caution in wishing to maintain the status quo, if the applicant sought to review his Honour’s decision. Thus, the transcript on 3 June contains the following statements (p 1.5):
“My decision is that the confidentiality should not be maintained, and that the order proscribing publication of that information be set aside. I have not announced any further detail of the subject of the confidentiality sought, nor have I read the orders in their complete terms onto the record in open court in light of submissions that were made by both counsel that should there be an application to review my decision in the Supreme Court the matter should stand over until that decision is made.”
After some further brief discussion, counsel for the applicant having indicated that he had received instructions to have the decision reviewed, his Honour continued (p 2):
“The submissions made this morning were that I proceed to sentence the Offender, as I intended to do this morning, but when delivering my remarks that I maintain the confidentiality of the information that is the subject of my judgment. It seemed to me that that was not the appropriate course, for to do so would be to ignore the orders that I have made.”
The public interest in this matter is such that in my view it is appropriate, if I am correct in the decision I have made, that the information be included in the remarks to be given in open court when I impose a sentence on the offender.
The application in whatever form it is to take in the Supreme Court should be pursued vigorously so that the offender may be sentenced at the earliest opportunity.”
His Honour, in concluding remarks, stated (p 4):
“My judgment of course must remain confidential until the order of the Supreme Court or until the application to review my decision is abandoned, whichever occurs first.”
The last reference to his Honour’s “judgment” appears to be to the judgment of 3 June 2009, which was supplied to the parties, and not to his judgment on sentence, which remains undelivered. It is because the sentencing proceedings remain uncompleted that the matter has been granted an expeditious hearing and determination in this Court.
It may be noted that the interim order which his Honour sought to set aside was made on 28 April 2009. On that day his Honour stated (Tcpt, p 6(20)):
“I think what I’ll do at the moment, gentlemen, is make an order that there be no publication of the fact that the offender has been diagnosed as suffering from HIV.”
This statement was made in the course of a discussion of provisions which might be relevant to the power to make such an order and it appears not to have been restated in open Court. It is true that, as a practical matter, the parties and the sentencing judge were meticulous in avoiding reference to the “confidential” fact in open Court, but it remained unsatisfactory that orders of the kind in question were not pronounced with a degree of formality and in the presence of those most immediately affected. Nevertheless, an order in the terms noted above is recorded on JusticeLink. As noted in Director of Public Prosecutions v PM [2006] NSWCCA 297; 67 NSWLR 46 at [61]:
“The keeping of proper records in criminal proceedings is a matter of some importance. A failure to keep an accurate record can give rise to uncertainty and potential prejudice, particularly, though not only, in relation to sentences: Erceg v District Court (NSW) (2003) 143 A Crim R 455.”
Given the forewarning that the matter was to be taken further, it is perhaps unfortunate that, having made the order set out at [11] above, there was no further order staying the operation of the substantive order. An intention to stay the operation of that order may be inferred from the discussion recorded in the transcript of 3 June 2009. However, that course is inappropriate and unsatisfactory in circumstances where uncertainty as to the operation of an order may lead members of the public (including journalists) to commit a contempt of court.
Part 53 of the District Court Rules 1973 (NSW) deals with proceedings in the criminal jurisdiction of the Court. Rule 12 provides for the entry and recording of judgments, orders, sentences, directions and recommendations in the following terms:
“12        Any judgment, order, sentence, direction or recommendation given or made by a Judge in any proceedings shall be entered on:
(a)          the indictment in the proceedings,
(b)          the appropriate court file, or
(c)          the appropriate computer record
and that entry shall, when signed by the judge or entered on the appropriate computer record, be the record of the judgment, order, sentence, direction or recommendation.”
Whether the orders were entered in any of the ways identified in the rule was not known at the time of the hearing in this Court. In seeking leave to appeal, the applicant should have made available to this Court any record of the orders made in the District Court. No such record was provided. The Registrar of this Court has been able to identify the records noted above on JusticeLink, the computerized system for recording such orders. It would appear, however, that access to the orders in that form is not directly available to members of the public.
In the present circumstances, it is convenient to follow the course adopted by the parties, which was to treat the order set out above at [11] as having been made on 3 June 2009, but its operation stayed. Any alternative course would be likely to increase confusion and further delay the sentencing of the applicant.

Jurisdiction of this Court

The application to this Court, filed on 16 June 2009, was, in effect, an application for leave to appeal against the order of Bennett DCJ setting aside the earlier order made by his Honour “proscribing the publication of a specific medical condition the offender suffers”. The applicant contended that his Honour’s judgment was an interlocutory judgment or order and invoked s 5F(3) of the Criminal Appeal Act 1912 (NSW), as the basis of this Court’s jurisdiction to review the decision.
In his written submissions, counsel for the Director of Public Prosecutions questioned whether the decision was interlocutory only, in the sense in which that language was considered in Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423, where Taylor J, at 440, described an interlocutory order as one “made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made”. Although this description was adopted in Kocer v R [2006] NSWCCA 328 at [13] by Rothman J (with whom McClellan CJ at CL and Buddin J agreed), it is not directly applicable to s 5F. A criminal proceeding is not “an action or suit” in the language of Taylor J in Hall. However, to the extent that a general understanding is relevant, this was clearly an interlocutory order. Final disposition of the proceedings required a conviction and sentence; no sentence had (or has) yet been imposed. Nor is there any other right or interest directly in issue. A decision as to whether certain material tendered in evidence in proceedings is to be made publicly available is entirely ancillary to the exercise of the Court’s jurisdiction to convict and sentence a person charged on indictment. No other jurisdiction has been invoked.
It appears that the Director was seeking to rely upon the uncertainty which has existed as to the scope of s 5F, since it was inserted in the Criminal Appeal Act by the Criminal Appeal (Amendment) Act 1987 (NSW). As a matter of history, the provision was designed to remove from the Court of Appeal challenges brought by way of judicial review against determinations in the course of criminal proceedings, particularly with respect to stay applications, and to allow this Court to undertake such review as it thought appropriate: see R v Edelsten (1989) 18 NSWLR 213 at 217C (Lee CJ at CL); Powch (1988) 14 NSWLR 136 at 138E (Yeldham J, Carruthers and Wood JJ agreeing); Lethlean (1995) 83 A Crim R 197 at 199 (Sheller JA, Allen and Hulme JJ agreeing). It is clear, on the other hand, that while s 5F is not in its terms limited to applications for a permanent stay or other complaints based on abuse of process, the phrase “interlocutory judgment or order” does not extend to every ruling or decision made in the course of a trial: R v Steffan (1993) 30 NSWLR 633 at 639G; Director of Public Prosecutions (NSW) v PM at [55]. Further, the scope of s 5F must be understood in its context which, in the case of the prosecution, may involve no right of appeal from a final judgment of acquittal: see R v Cheng [1999] NSWCCA 373; 48 NSWLR 616 at [32]-[34] (Spigelman CJ, Dunford and Kirby JJ agreeing); but see now Part 8 (and particularly s 107) of the Crimes (Appeal and Review Act 2001 (NSW). In the case of a conviction, any ruling on the admissibility of evidence is likely to provide a basis for an appeal against conviction.
Even these broad statements are subject to qualification. Thus, an evidential ruling in relation to a claim for public interest immunity has been held to fall within the scope of s 5F: Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 673. In Stuart Hunt CJ at CL noted:
“An order to a stranger to the proceedings that documents be produced to the court following the rejection of a claim of public interest immunity is one which commands the stranger to do something. It may be entered in the court record, and action may be taken upon it in the event that it is disobeyed. For myself, I have no doubt that it is an interlocutory order within the meaning of s 5F. The fact that it is or may also amount to a ruling upon evidence does not exclude such an order from the terms of s 5F: cf R v Steffan (at 640-641).”

In Bozatsis and Spanakakis (1997) 97 A Crim R 296 at 303, Gleeson CJ (Meagher JA and Bruce J agreeing) noted:
“One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it”.
There are therefore difficulties in asserting that every order of a court is either final or interlocutory; there are also difficulties in asserting that all decisions of a court are judgments or orders. However, consistently with Stuart, s 5F should be given a construction which permits a challenge to an order involving non-publication of evidence or of material revealing the identity of parties or witnesses in the course of a criminal trial. Where such an order is made, it has consequences for third parties and can result in proceedings for contempt if breached. Where a non-publication order is refused, there may be significant practical consequences for a third party, who may be a witness and, in a common case, an informer. Alternatively, where non-publication is sought to preserve the fairness of a future trial, refusal may adversely affect an accused: cf Burrell v Regina [2008] NSWCCA 276. In the present case, any adverse impact arising from the failure to grant the order sought will fall primarily upon the applicant. Nevertheless, that is not a reason in itself, nor is the fact that an order is refused rather than made, sufficient to place the refusal outside the terms of s 5F. Even if confidentiality were preserved until an appeal could be brought against the sentence, the fact that a non-publication order had been refused could not have any direct impact on such an appeal.
For these reasons, the preferable construction of s 5F is that his Honour’s revocation of an earlier suppression order and his refusal to extend that order would fall within the jurisdiction conferred on this Court by that provision.

Grant of leave

There remains a further hurdle for the applicant to surmount in order to obtain relief from this Court. That is to satisfy the Court that this is an appropriate case in which to grant leave to appeal.
The grant of a non-publication order will often raise issues of public importance. That is because such an order will constitute a diminution of the operation of the principle that justice should be administered in open court and subject to public scrutiny. Further, the justification for such an exception to the principle is to be narrowly confined. The scope of the exceptions were identified by McHugh JA (Glass JA agreeing) in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476G-477, in the following terms:
“The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. … The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. … Courts have no general authority, however, to make orders binding people in their conduct outside the courtroom. Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the courts. An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative – not judicial – power. Nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court. But the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice and not because he was bound by the order itself.”
It is clear that the variations in expression adopted by his Honour in this passage were not intended to create different tests. Thus, that which is “necessary” to achieve the due administration of justice is that which would prevent it being frustrated. To say that the order must be “really necessary” is to emphasise the burden borne by the applicant for the order, rather than to create some different test.
Although reference was made in the course of submissions to various public interests sought to be protected by legislation, none was identified which directly involved any legislative modification of the open justice rule. Accordingly, the question must remain whether the order sought by the applicant was indeed necessary to secure the proper administration of justice in the proceedings before the District Court.
Similar issues can arise in civil proceedings, as in the case of an action by a former police officer for damages for psychiatric injuries sustained in the course of employment: see Brennan v State of New South Wales [2006] NSWSC 167. An incidental issue in that case concerned non-publication orders in respect of specific evidence and submissions based on that evidence. The Court of Appeal granted leave to appeal in respect of the orders made by the trial judge: New South Wales Commissioner of Police v Nationwide News Pty Ltd [2007] NSWCA 366; 70 NSWLR 643. The grant of leave in that case reflects the public interest commonly involved in the application of principles relating to non-publication orders.
Although the order under challenge did not involve the imposition of a constraint on the open justice principle, but the refusal to impose such a constraint, it is nevertheless appropriate to grant leave to consider the basis of the refusal.

Nature of appeal

The appeal in the present case proceeded on the same evidence as that which was before the trial judge. That material related to the health status of the applicant, which was not in issue. As noted in Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 in orthodox terminology, the appeal is by way of rehearing: at [11]-[12].
Because the trial judge accepted he had power to make the order sought, the decision was made in the exercise of a discretionary power, although not one involving a range of outcomes. Nevertheless, an error of principle must be identified to justify intervention by this Court.

Basis of application

The principal basis upon which the applicant challenged the decision of the primary judge not to continue the non-publication order was that such an approach was inconsistent with an important public policy, revealed in various statutory schemes, of protecting confidentiality of HIV status.
No real weight was placed upon the proposition that such an order was directly necessary for the administration of justice. The result was to cast serious doubt on the reliance on extraneous statutory provisions. It is to be recalled that the second limb of the exception noted by McHugh JA in John Fairfax & Sons, after reference to frustration of the administration of justice, was departure based on “some other public interest for whose protection Parliament has modified the open justice rule”. This exception does not encompass all public interests sought to be protected by Parliament: the protection must be by way of modification of the open justice rule. In other words, unless it be necessary for the administration of justice it is not for the courts to make such orders, binding as they are on persons who are not party to the proceedings, absent statutory authority.
Before turning to the specific statutory powers relied upon by the applicant, it may be noted that, in the course of argument, the applicant endorsed a suggestion that an analogy might be drawn with a case in which a person seeks to protect, by court process, rights in respect of confidential information (such as a trade secret) and therefore requires an order preserving confidentiality in the course of the proceedings, to ensure that the proceedings do not destroy the very right which is sought to be protected.
That approach, if made good, might support a non-publication order in the present circumstances. However, in terms of power, the analogy falls down at a number of points. First, the health status of the applicant was not in any real sense the subject matter of the proceedings. It was merely a consideration which may have some bearing on the appropriate sentence. In any event, preserving the confidentiality of the applicant’s health status was in no sense a purpose of the proceedings. Secondly, as will be seen below, the law does not ascribe any particular form of protection to the health status of an individual, whether in relation to HIV or otherwise. There is a degree of statutory protection designed to prevent the non-consensual disclosure of such information by third parties. Even that degree of protection is limited by exceptions serving various forms of public interest. Thirdly, the administration of justice is not necessarily served by the protection of such information from disclosure. There are many aspects of an offender’s personal circumstances which will be revealed either by his or her offending or in the course of a sentencing hearing, which will expose the offender to adverse publicity, without it being appropriate to provide protection against disclosure. Indeed, some offences may lead an offender to be at risk of physical harm in prison, without it being appropriate to prohibit disclosure of the offences or the offender’s name. These are extraneous considerations to the administration of justice, which must be addressed in another forum.
The primary source of power relied upon by the applicant was that contained in s 126E of the Evidence Act 1995 (NSW) to protect a confidence. Section 126E provides:
“126E Ancillary orders
Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of a protected confidence or protected identity information, the court may:
(a)order that all or part of the evidence be heard in camera, and
(b)make such orders relating to the suppression of publication of all or part of the evidence given before the court as, in its opinion, are necessary to protect the safety and welfare of the protected confider.”
The purpose of s 126E, contained in Pt 3.10, Div 1A, is to provide protection from “harm”. For the purposes of that Division, certain terms are defined in s 126A. Harm, as defined in s 126A(1), “includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear)”. The section is not explicit as to the person who may suffer such harm, but the definition of “protected confidence”, set out below, suggests that the primary purpose of the section is to protect the confider. Nevertheless, it is not expressly so limited and there may be circumstances where a broader scope should be accorded to the provision. In the present case, if the person to be protected is the applicant, the broad definition of “harm” might well encompass circumstances where causing shame or humiliation to others (such as the applicant’s close family) may indirectly cause harm to the applicant as well.
“Protected confider” is also defined in s 126A, to mean a person who made a “protected confidence”. The latter term is defined as follows:
“protected confidence means a communication made by a person in confidence to another person (in this Division called the confidant):
(a)in the course of a relationship in which the confidant was acting in a professional capacity; and
(b)when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant.”
It is apparent that this definition is restricted to communications made to a person acting in a professional capacity. It does not in terms apply to information supplied by way of a communication from a professional advisor. On the other hand, it may be that the applicant is a “protected confider” in so far as he conveyed information as to his medical condition to his legal representatives, or authorised release of that information by a health professional.
The scope of the Evidence Act provisions is undoubtedly broad, as the definition of “protected confidence” demonstrates. In order to limit the scope of reliance upon such a broad provision, the applicant called in aid protections available under s 17 of the Public Health Act 1991 (NSW) prohibiting disclosure of information in relation to a “Category 5 medical condition”, otherwise than with the consent of the person concerned. A Category 5 medical condition is either of human immunodeficiency virus infection or acquired immune deficiency syndrome. No reliance could be placed on s 17 alone because it permitted disclosure, not only with the consent of the person, but by order of a court or a person authorised by law to examine witnesses: s 17(3)(c). Rather, the applicant relied on this provision in conjunction with the power to limit publication of a protected confidence, under s 126E of the Evidence Act.
In written submissions, the applicant referred to a circular issued by the New South Wales Department of Health on 4 November 1998 explaining that the prohibitions relating to unauthorised disclosure of HIV-related information were required because such disclosure “may lead to discrimination on the grounds of HIV status and inferences about sexual preference and drug use”. The circular also explained that the purpose of protecting such information was not merely to prevent adverse consequences to the individual, but to provide a basis for the trust and co-operation of persons at risk of infection or who may have an infection, so as to encourage them to make timely use of health services.
The applicant’s argument, based on these statutory provisions, had two limbs. First, his health status was a relevant consideration with respect to the sentencing exercise being undertaken by the trial judge; secondly, he should be entitled to rely upon such factual material without being put at risk of extraneous adverse consequences, as a result of such legitimate reliance for the purposes of the sentencing proceeding. The relevance of the factor as a sentencing consideration was identified in R v Penalosa-Munoz [2004] NSWCCA 33; 143 A Crim R 594 at [14].
In addressing reliance upon Pt 3, Div 1A of the Evidence Act, the trial judge stated at [39]:
“There is no application to exclude the evidence from the proceedings. The Offender wishes to have the evidence of his infection before the court, and does not seek to engage these provisions for any purpose other than to support the proposition that there is an underlying policy upon which this and the earlier mentioned legislation is premised, which includes protection from disclosure of the Offender’s predicament generally, and which ought to be extended to withhold from publication his infection even in these proceedings.”
In part response to this reasoning, the applicant argued that the evidence had been tendered on the basis that it would be dealt with confidentially by both the Director and the Court. The factual submission underlying this proposition was not made good. The evidence was not tendered conditionally, but was tendered with a submission that a non-publication order should be made.
Nor was any evidence tendered as to the likely harm which would be suffered by the applicant if the information were made public. In this regard, the question of harm cannot be assumed, absent evidence. In Penalosa-Munoz, in accepting the relevance of an offender’s HIV status on the basis that imprisonment will often be more burdensome than would otherwise be the case, Buddin J stated (Levine and Barr JJ agreeing) at [14]:
“There was evidence which the sentencing judge accepted concerning the impact that imprisonment can have upon a person who has the HIV virus. The evidence revealed that a prisoner’s status as an HIV sufferer is impossible to keep confidential within the prison system. Once such a person’s status is known, he or she is likely to be subjected to harassment from other prisoners. Furthermore imprisonment inevitably creates considerable stress for inmates. Stress in turn can significantly compromise the body’s immune system and its capacity to resist the spread of the illness.”
If in fact such information is impossible to keep confidential within the prison system, it is likely that a non-publication order would not assist the applicant in this respect. It would follow that the only purpose of such an order would be the protection of his reputation (if HIV status is relevant to that) and the possible humiliation of his wife and family in the public arena. These matters are not directly related to the needs of administration of justice.
The trial judge noted reliance upon the proposition that the applicant’s family would suffer an increased burden as a result of the exposure of the fact of his infection: at [21]. There may be some indirect harm to the applicant as a result of that position. It may also be accepted that there will be some degree of harm suffered by the applicant as a result of the disclosure. However, no reliance was placed upon any specific concerns, particularly concerns which might distinguish the present circumstances from other aspects of the offences which will become public or are public and other kinds of disclosures.
Finally, the applicant sought to draw some support from the decision of this Court in R v Kwok [2005] NSWCCA 245; 64 NSWLR 335. Mr Kwok had been tried upon indictment for conspiracy to cause various women to be placed in sexual servitude, contrary to provisions of the Criminal Code Act 1995 (Cth). The prosecution had sought to call evidence from various women and sought a non-publication order in relation to the name and identity of each complainant. The circumstances of that case are remote from the present case and it is not necessary to analyse the reasoning of this Court in upholding the power of the trial judge to make a non-publication order and setting aside his Honour’s refusal to do so. As explained by Hodgson JA at [24] there were a number of matters which could properly be taken into account. His Honour continued:
“Even if it is the case that some of the witnesses will be prepared to give evidence if their names are disclosed, and will suffer only embarrassment, it may be nevertheless appropriate to make a non-disclosure order in the case of those witnesses, because of the desirability of promoting the detection and prosecution of crimes of this sort, which will be aided if victims can have some assurance of anonymity. However, that will be a matter to be assessed by the judge making the decision on the basis of the evidence then available.”
Howie J further noted at [33]:
“Parliaments in all Australian jurisdictions have taken steps to ensure that complainants in sexual assault offences receive anonymity, no doubt in order to encourage those persons to come forward by lessening the fear of public humiliation and degradation that might follow upon a complaint of that nature being revealed to the public at large. It would be a small step for the Federal Parliament to provide similar protection to complainants in cases such as the one presently before the District Court. …
However, notwithstanding the federal Parliament has not taken steps to ensure the anonymity of witnesses in this class of case it does not follow that this Court should not act if it believes that such anonymity is necessary in the administration of justice.”

Conclusions

This was not a case in which the trial judge found he had no power to make the order sought. Indeed, on an interim basis, he had made such an order. His conclusion was expressed in the following terms at [40]:
“I am not persuaded that it is appropriate to suppress publication of this information. To do so would offend the principle of open justice generally, and specifically would deny the community its entitlement to know the extent of the gravity of the offending upon which the assessment of the appropriate sentence will be made.”
This was a discretionary assessment on his Honour’s part, based on his knowledge of the facts and circumstances before him for the purpose of sentencing the applicant. It may be that, at least in this part of his judgment, the sentencing judge did not fully expose his reasons for decision. However, various factors were referred to in the course of his reasons which were undoubtedly taken into account. First, the disclosure of his HIV status was voluntarily made by the applicant through his counsel. The disclosure was not conditioned upon obtaining a non-publication order nor was there any suggestion that the material would be withdrawn if a non-publication order were not forthcoming. Secondly, no evidence was called as to the harm which might be suffered by the applicant if his HIV status were revealed. That is not to say that no harm would eventuate, but that his Honour was left to draw such conclusions as he might from general experience of such matters, together with appropriate inferences as to their effect on the applicant and his immediate family. Such adverse effects had to be distinguished from the effects which would undoubtedly flow from his conviction and the circumstances of his offences in any event. Thirdly, there was the likely consequence for the due administration of justice from preventing publication of a circumstance which may provide a basis for a more lenient sentence than would otherwise be imposed, taking into account the considerations in Penalosa-Munoz. Whilst such a result might be justifiable, there would be a real risk that the public perception of the due administration of justice would suffer from an inability on the part of the trial judge to explain fully the basis of the sentencing. (At this stage, it is not known what weight, if any, his Honour is minded to give to the applicant’s HIV status.)
In these circumstances, although the conclusions were not expressed in a manner which demonstrated specific reliance upon each of these factors, the order was clearly justifiable in the circumstances. It is not necessary to consider whether a different order was reasonably open. No error of principle, of the kind identified in House v The King [1936] HCA 40; 55 CLR 499, having been made good, the appeal should be dismissed. Accordingly, I propose the following orders:
(1)Grant the applicant leave to appeal from the interlocutory judgment or order of Bennett DCJ made on 3 June 2009, setting aside the order proscribing the publication of the applicant’s status as a person suffering human immunodeficiency virus infection;
(2) Dismiss the appeal.
HULME J: I agree with Basten JA.
JOHNSON J: I agree with Basten JA.
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LAST UPDATED:
9 June 2010