Private R v Cowen & Anor

[2020] HCATrans 23

[2020] HCATrans 023

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S272 of 2019

B e t w e e n -

PRIVATE R

Plaintiff

and

BRIGADIER MICHAEL COWEN

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON TUESDAY, 3 MARCH 2020, AT 10.15 AM

Copyright in the High Court of Australia

MR N.W. WYATT:   Good morning, your Honour, I appear for the plaintiff.  (instructed by Wyatts Lawyers)

HIS HONOUR:   There is a submitting appearance for the first defendant.

MS J.E. DAVIDSON:   May it please the Court, I appear for the Commonwealth, the second defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you.  Ms Davidson, just before you sit down, I have received your proposed consent order very helpfully timetabling the matter right up to the filing and service of a joint book of authorities on or before 5 June.

MS DAVIDSON:   Yes, your Honour.

HIS HONOUR:   The timetable will have to be adjusted slightly to provide for any submissions and service upon any interveners from any of the States, but do I take it from these proposed orders that the Commonwealth’s position is that it is going to take the running, in effect, of filing the copies of the electronic Court book?

MS DAVIDSON:   That is correct, your Honour, yes.

HIS HONOUR:   Will that apply to the service on any interveners as well?

MS DAVIDSON:   Yes, it would, your Honour.

HIS HONOUR:   Yes, all right, thank you.  Mr Wyatt, is there anything that you want to say in relation to the application for suppression before I hear from Ms Davidson about that?

MR WYATT:   No, there is nothing from the plaintiff’s perspective.  Thank you, your Honour.

HIS HONOUR:   All right.  Ms Davidson, on your application for suppression orders, I have received your proposed redacted affidavit of Mr Wyatt and the two annexures about which you seek suppression orders.  Is it the Commonwealth’s intention that that affidavit be marked, perhaps, “3 March 2020” so that it would be available for any person who inspected the file?

MS DAVIDSON:   Yes, your Honour.

HIS HONOUR:   Yes, effectively available in place of the suppressed material?

MS DAVIDSON:   Precisely.  So the net effect of orders 3.1 and 3.2 would be that – the consequence of making those orders would be that the earlier versions were not available for inspection but the intent, as indicated in the Commonwealth’s submissions, was that this version instead be substituted and, yes, marking it with today’s date would be the appropriate way perhaps to indicate that this is the version that is to be made available for inspection.

HIS HONOUR:   In effect, the net effect of the suppression order, once this affidavit is available for inspection, is that the only material on the file that has been suppressed is the postings, the job descriptions, the names and some related material?

MS DAVIDSON:   That is correct, with the addition that, as your Honour sees from orders 3.3 and 3.4, it is proposed that two of the annexures to the proposed statement of agreed facts not be made available for inspection on the Court file.  Now, those are annexures A and C of the proposed statement of agreed facts which are the statement of the complainant and the prosecution alleged facts.  The way that those orders have been framed in orders 3.3 and 3.4 of the summons are to accommodate what was contemplated to be the position in advance of the hearing last week which was that they may either be placed as attachments to an agreed statement of facts or exhibited to an affidavit.

HIS HONOUR:   Are they not contained in the exhibits of today’s redacted affidavit of Mr Wyatt?

MS DAVIDSON:   No, they are not, your Honour.

HIS HONOUR:   So there are the agreed facts on page 16 of his affidavit ‑ ‑ ‑

MS DAVIDSON:   Yes, which is different to the prosecution alleged facts, which is what is referred to ‑ ‑ ‑

HIS HONOUR:   That is at page 18 of the Gatehouse affidavit?

MS DAVIDSON:   Yes, your Honour.  That is the prosecution alleged facts, proposed annexure C.

HIS HONOUR:   Yes.  There is no suggestion that the Gatehouse affidavit would be suppressed?

MS DAVIDSON:   Well, your Honour, the Gatehouse affidavit has not formally been read yet.

HIS HONOUR:   I see, yes.

MS DAVIDSON:   If it was necessary to read it on today’s application in advance of the making of any order I would propose to read it with the exception of the final sentence of paragraph 4.

HIS HONOUR:   I see, yes.

MS DAVIDSON:   There is a certain circularity ‑ ‑ ‑

HIS HONOUR:   If the complainant’s statement and the prosecution’s agreed facts form part of the suppressed material, what would be the effect of the statement of agreed facts that is proposed to be filed?  Would that statement of agreed facts replicate some or all of those two documents or would it contain those documents in a redacted form?

MS DAVIDSON:   Your Honour, it is proposed – not that those documents be suppressed, but that they be the subject of an order which would, in the Commonwealth’s submission, be ancillary to the suppression order which is simply that they not be available for inspection or copying from the Court file.  So they would be able to be discussed in open court, they would be able to be reported on, they would not be the subject of an order under – an order suppressing them other than to prevent inspection or copying.

HIS HONOUR:   Preventing inspection or copying is part of the definition of “suppression” under the Judiciary Act.  But, as I understand it, what you are saying is that those two documents, although they would be subject to orders that prevent inspection or copying, the material in those documents, at least in large part, will appear in the statement of agreed facts.

MS DAVIDSON:   The material content of those documents, some of it has been replicated in the statement of agreed facts and other aspects of it may be the subject of submissions, but to the extent that those documents were – the statement of agreed facts was filed, a copy could be made of the statement of agreed facts – could be made available for inspection that simply included redacted versions of those two documents.

HIS HONOUR:   Yes.  My concern at the moment is that I am not really sure I understand why it is necessary to make orders that prevent inspection or copying of the statement of the complainant or the prosecution’s alleged facts in circumstances in which some or all of that material may appear in the statement of agreed facts and may be the subject of submissions in open court.

MS DAVIDSON:   Your Honour, it is deliberately not in the body of the statement of agreed facts in the draft form that was provided to your Honour last week.

HIS HONOUR:   Yes.

MS DAVIDSON:   It is referred to as an annexure and in the Commonwealth’s submission – and if your Honour could go to page 18 of Ms Gatehouse’s – annexure C to Ms Gatehouse’s affidavit, which is the prosecution alleged facts, the Commonwealth’s submission is that there is a number of additional matters there concerning the events on the night in question that would, when cumulated, permit identification of the plaintiff and they are facts - for example, the location in which the party took place, the date of the party and one would presume, given that it is a birthday party that it would be assumed that the complainant’s birthday was around then, the time that the party occurred, the venue at which the party occurred which your Honour sees in paragraph 6, the progress of the evening – that is from one venue to another and subsequently to the Limes Hotel – that those facts, in the Commonwealth’s submission, accumulated are such that a person, either present or not present at the party but who knew the complainant, would be capable of identifying her from that document. 

Annexure A - the submission is a fortiori insofar as there is a greater degree of detail in relation to those matters in annexure A - also indicates that not all of those who were present at the party were members of the military.  Some of them were civilians.  That is the kind of detail that may – it may not all of it be picked up on in submissions, but it is the kind of detail that if it were liable to be inspected and copied that may then be sought to be reported on with the capacity to identify the plaintiff then available.

HIS HONOUR:   Yes.

MS DAVIDSON:   In circumstances where that prospect is able to be forestalled without inhibiting the ability of the parties to make submissions in relation to relevant aspects of that detail and also the ability of media parties to report on that detail, the submission is made that on the grounds identified in the summons the orders are, in fact, necessary for the protection of the identity of the plaintiff and the complainant and, in particular, in respect of these two annexures, the identity of the complainant and the avoidance of undue distress or embarrassment to the complainant which, your Honour, is the ground that is referred to in section 77(1)(d) of the Judiciary Act noting that the Commonwealth’s contention is that this is an offence of a sexual nature.

HIS HONOUR:   Yes, all right.  I have read your submissions in relation to the other aspects of the suppression orders.  Is there anything further that you want to add?

MS DAVIDSON:   Your Honour, I should formally read the affidavit of Brigadier Paul Kenny sworn 19 February 2020 in support of those other matters.

HIS HONOUR:   Yes, I will take that as read.

MS DAVIDSON:   I am grateful, your Honour. Unless your Honour would be assisted by me taking you to particular aspects of Brigadier Kenny’s affidavit, I would submit that that material does enable your Honour to be comfortably satisfied in respect of the grounds that are contained in section 77RF(1)(b) and (c) of the Judiciary Act.

HIS HONOUR:   Yes, thank you, Ms Davidson.  What I propose to do is I will adjourn for about 10 minutes and then I will give short reasons on your application.

AT 10.28 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.48 AM:

HIS HONOUR:   Thank you both for your indulgence. 

This is an application by the second defendant to this proceeding, the Commonwealth of Australia, for suppression orders pursuant to s 77RE of the Judiciary Act1903 (Cth) in relation to information “tending to reveal the identity of or otherwise concerning any party to . . . a proceeding before the Court”. The application for suppression orders is supported by the plaintiff, “Private R”. The first defendant, Brigadier Cowen, is a Defence Force Magistrate. He has entered a submitting appearance. On 27 February 2020, a Deputy Registrar of this Court also gave notice to a number of news publishers as representatives of those persons entitled to appear and be heard on this application under s 77RG(2)(d) of the Judiciary Act.  No publisher sought to intervene.

In the underlying matter, Private R applies for a writ of prohibition to prohibit Brigadier Cowen from proceeding to hear a charge, brought against the plaintiff by the Director of Military Prosecutions. Private R alleges that the plaintiff committed assault occasioning bodily harm contrary to s 24 of the Crimes Act 1900 (ACT), as applied by s 61(3) of the Defence Force Discipline Act 1982 (Cth). The factual background recited in Private R’s application contains some detail of the allegations against him, including that the assault is alleged to have been committed by him against a member of the Permanent Air Force, with whom he was previously in an intimate relationship, in a hotel room booked and paid for by Private R, when neither Private R nor the complainant were on duty or in uniform. Private R alleges that Brigadier Cowen lacks jurisdiction to hear the charge. His challenge includes the claim that insofar as s 61(3) of the Defence Force Discipline Act purports to apply the provisions of the Crimes Act, it is beyond the legislative power conferred by s 51(vi) of the Constitution.

The Commonwealth seeks suppression orders to the effect that: (i) the plaintiff in this proceeding be referred to (including in the title of this proceeding) as “Private R”; (ii) there be no disclosure, by publication or otherwise, of information that identifies, or tends to identify, in connection with this proceeding, the plaintiff or the complainant; and (iii) no person shall be permitted to inspect, or copy certain documents filed or to be filed in the Registry in this matter. At a directions hearing on 27 February 2020, I made interim suppression orders under s 77RH(1) of the Judiciary Act, operative until tomorrow, which extended also to Private R’s application for a constitutional writ, on the basis that a redacted version of that document, which would remove only five words, would be prepared and filed that day.  Shortly after that hearing, the solicitors for the Commonwealth notified the Court that the Commonwealth would no longer press for non‑publication of the five words contained in Private R’s application and therefore did not propose to file a copy of the application in redacted form.  I rescinded the suppression order concerning Private R’s application.

The Commonwealth’s application for suppression orders relies upon the inherent powers of the Court and three of the grounds provided in s 77RF(1) of the Judiciary Act:  (i) the necessity to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security (s 77RF(1)(b)); (ii) the necessity to protect the safety of any person (s 77RF(1)(c)); and, as to the second and third suppression orders, the necessity to avoid causing undue distress or embarrassment to a party in a criminal proceeding involving an offence of a sexual nature (s 77RF(1)(d)).

The Commonwealth relies upon an affidavit of Brigadier Paul Kenny, the Director General of Special Operations for Special Operations Command (“SOCOMD”).  SOCOMD is a branch of the Australian Defence Force comprising highly trained, specialist personnel who provide a capacity for the Australian Government to protect Australia’s interests nationally and internationally, including in classified activities.  Brigadier Kenny is responsible for operational security affecting SOCOMD including the management of sensitive information concerning its capabilities and the approval of public release of information about SOCOMD and its people.  With few exceptions, such as publicly acknowledged appointments like Brigadier Kenny himself, the identity of SOCOMD personnel are anonymised in public announcements.  The secrecy of their identities is necessary for a number of reasons:  to minimise the risk of harm to them or to their families; to minimise the risk that they will be exploited to obtain sensitive information; and to maximise the scarce operational resources of the Australian Defence Force, particularly in relation to highly specialised members of SOCOMD.  Private R currently serves with SOCOMD forces.

In considering a suppression order, s 77RE(2) requires that the order be one that this Court thinks “appropriate”. This is used in the sense of an order being reasonable and adapted to its purpose: see Vella v Commissioner of Police (NSW) (2019) 93 ALJR 1236 at 1249 [50]; 374 ALR 1 at 14. A central consideration for the propriety of the order is provided in s 77RD, which requires that account be taken of a primary objective of the administration of justice being to safeguard the public interest in open justice.

Further, each of the grounds in s 77RF(1) of the Judiciary Act is based upon a requirement of necessity.  “Necessity” is a “strong word”:  see Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664 [30]. It connotes a requirement that is stronger than mere desirability. The Court must be satisfied of the existence of the relevant matter, such as a need to prevent prejudice to the interests of the Commonwealth in relation to national or international security or a need to protect the safety of a person, and that the order will respond to that need by attempting to prevent that prejudice or protect the safety of that person.

I am satisfied from Brigadier Kenny’s evidence that revealing the name or identity of Private R would cause grave prejudice to the fundamental interests of the Commonwealth in both national and international security and would threaten the safety of Private R.  Some suppression order is necessary to prevent that prejudice and to protect the safety of Private R.  It suffices to deal with this application on these two bases.

The suppression orders proposed by the Commonwealth are appropriate.  The orders fall into three categories.  The first category concerns information that would directly reveal the identity of Private R.  The orders in this category anonymise the identity of Private R and prohibit disclosure, by publication or otherwise, of information that would reveal the identity of Private R or the identity of the complainant with whom, as I have said, Private R had previously been in an intimate relationship and from whose identity Private R could be identified.

The second category of orders concern the prohibition only of inspection or copying of two versions of the same affidavit of Mr Wyatt.  The extent of the suppression is limited to this prohibition on inspection or copying.  Although the two versions of the affidavit are extensive, the suppression is made on the condition that the Commonwealth provide a redacted copy of the affidavit, which it has done.  That copy will not be suppressed and will be included on the file with redactions to remove only the identifying details of service information (including job descriptions and postings) of Private R or the complainant and related identifying information.  Indeed, counsel for the Commonwealth also properly accepted following the previous directions hearing of this matter that some of the limited redactions that were initially proposed, such as the name of the hotel where the assault allegedly occurred, should not be redacted.  Even if the name of the hotel might lead to a chain of inquiry that could ultimately reveal the identity of Private R, the reference to that hotel in Private R’s own application for a writ of prohibition, and the considerations of open justice, made that redaction inappropriate.

The third category of suppression order again concerns only a prohibition upon inspection or copying of two documents:  first, a statement of the complainant dated 27 February 2018; and, secondly, the prosecution alleged facts.  I am presently satisfied that those documents contain considerable material from which the identity of the plaintiff or the complainant, and from her the plaintiff’s identity, might be able to be discovered.  Much of that material is interspersed with other material in the two documents.  It should, however, be possible, especially in light of the interests of open justice, for counsel in written and oral submissions in this Court to set out their arguments by reference to all relevant facts even if some of the particular identifying features in the two documents need to be expressed in terms that become more generic.

For these reasons I am satisfied that the suppression orders sought by the Commonwealth and supported by the plaintiff, with exceptions that include replicating the effect of s 77RJ of the Judiciary Act, are relevantly necessary and appropriate.  I make those orders and programming orders that were agreed, subject to amendment, for the inclusion of orders relating to interveners, for the hearing of this matter as follows:

1.Pursuant to s 77RE and on the grounds referred to in s 77RF(1)(b) and (c) of the Judiciary Act the plaintiff in this proceeding be referred to (including in the title of this proceeding) as “Private R”.

2.Pursuant to s 77RE and on the grounds referred to in s 77RF(1)(b) and (c) of the Judiciary Act there is to be no disclosure, by publication or otherwise, of information that identifies, or tends to identify, in connection with this proceeding:

(a)the plaintiff; or

(b)the complainant.

3.Pursuant to s 77RE and on the grounds referred to in s 77RF(1)(b) and (c) of the Judiciary Act, no person shall be permitted to inspect, or copy any of the following documents, including any copy thereof, filed in the Registry in this matter:

(a)the affidavit of Neville William Wyatt in support of a constitutional writ sworn on 12 September 2019 and filed 13 September 2019;

(b)the redacted copy of the affidavit of Neville William Wyatt in support of a constitutional writ sworn on 12 September 2019, which redacted copy was provided to the Court in October 2019;

(c)the statement of the complainant dated 27 February 2018, whether it is placed before the Court as an attachment to the agreed statement of facts, or exhibited to one or more affidavits; and

(d)the prosecution alleged facts, whether it is placed before the Court as an attachment to an agreed statement of facts, or exhibited to one or more affidavits.

4.Orders 1, 2 and 3 do not prevent disclosures:

(a)to and between the following people:

(i)Judges of this Court;

(ii)necessary Court staff;

(iii)the parties; or

(iv)legal representatives of the parties instructed in these proceedings; or

(b)for the purpose of any prosecution of the plaintiff.

5.Orders 1, 2 and 3 apply until any further order.

6.The second defendant file and serve a statement of agreed facts on or before 3 April 2020.

7.The plaintiff’s application for a constitutional or other writ dated 13 September 2019 be referred for consideration before a Full Court on the basis of the statement of agreed facts.

8.The second defendant file and serve nine hard copies and an electronic copy of the court book in a form acceptable to the Registrar by 4.00 pm on 10 April 2020.

9.The second defendant is to serve one hard copy and an electronic copy of the court book on the plaintiff and any interveners by 4.00 pm on 10 April 2020.

10.Part 44 of the High Court Rules 2004 (Cth) relating to written and oral submissions shall apply to this proceeding with the following variations:

(a)the plaintiff is to file and serve written submissions, not exceeding 20 pages, by 4.00 pm on 17 April 2020;

(b)any interveners in support of the plaintiff are to file and serve their written submissions, not exceeding 20 pages, by 4.00 pm on 1 May 2020;

(c)the second defendant is to file its written submissions not exceeding 20 pages, by 4.00 pm on 15 May 2020;

(d)any interveners in support of the second defendant are to file and serve their written submissions, not exceeding 20 pages, by 4.00 pm on 22 May 2020; and

(e)the plaintiff is to file and serve any written submissions in reply, not exceeding five pages, by 4.00 pm on 29 May 2020.

11.The plaintiff is to file and serve on the second defendant and any interveners an electronic copy of the joint book of authorities prepared in accordance with the requirements of Practice Direction No 1 of 2019 by 4.00 pm on 5 June 2020.

12.The matter be listed before the Full Court on a date to be listed by the Court.

Mr Wyatt, Ms Davidson, anything further?

MS DAVIDSON:   Your Honour, I note that you - in order 11 in terms of the plaintiff filing and serving the joint book of authorities, that was something that the Commonwealth had expressed willingness to do and that remains the position if that is convenient and it would be consistent with the other order your Honour made.

HIS HONOUR:   All right, yes.  I will amend order 11 so that it provides that the second defendant file and serve on the plaintiff and any interveners an electronic copy of the joint book of authorities prepared in accordance with the requirements of Practice Direction No 1 of 2019 by 4.00 pm on 5 June 2020.

MS DAVIDSON:   May it please the Court.

HIS HONOUR:   Thank you both very much for your assistance.  The Court will adjourn.

AT 11.02 AM THE MATTER WAS ADJOURNED