Private R v Cowen & Anor

This matter came before the High Court of Australia concerning an application by the second defendant, the Commonwealth of Australia, for suppression orders. The plaintiff, identified as "Private R," supported this application. The underlying proceeding involved Private R seeking a writ of prohibition to prevent the first defendant, Brigadier Michael Cowen (a Defence Force Magistrate), from hearing a charge of assault occasioning bodily harm brought against Private R under the Defence Force Discipline Act 1982 (Cth), which applied provisions of the ACT Crimes Act 1900. Private R challenged Brigadier Cowen's jurisdiction, arguing that the application of the Crimes Act was beyond the Commonwealth's constitutional legislative power.

The legal issues before the Court were whether suppression orders were necessary and appropriate under section 77RE of the Judiciary Act 1903 (Cth) to protect the identity of Private R and the complainant, and to prevent prejudice to national security and the safety of individuals. Specifically, the Court had to consider the grounds for such orders, including preventing prejudice to the interests of the Commonwealth in national or international security (s 77RF(1)(b)), protecting the safety of any person (s 77RF(1)(c)), and avoiding undue distress or embarrassment in a criminal proceeding involving an offence of a sexual nature (s 77RF(1)(d)). The Court also had to balance these considerations against the public interest in open justice, as mandated by section 77RD of the Judiciary Act.

The Court reasoned that the evidence, particularly from Brigadier Paul Kenny, demonstrated that revealing the identity of Private R would cause grave prejudice to the Commonwealth's national and international security interests and would threaten Private R's safety. The Court found that suppression orders were necessary to prevent this prejudice and protect Private R. The Court considered the proposed orders to be appropriate, categorising them into those anonymising Private R and the complainant, those prohibiting inspection or copying of specific documents (including affidavits and statements of fact) to prevent identification, and those allowing disclosure to legal representatives and for prosecution purposes. The Court noted that while some identifying details might be contained within documents that would not be available for inspection, counsel could still refer to relevant facts in submissions in a more generic manner to uphold the principle of open justice.

The Court made the suppression orders sought by the Commonwealth and supported by the plaintiff. These orders included referring to the plaintiff as "Private R" in the proceeding title, prohibiting disclosure of information that identifies or tends to identify Private R or the complainant, and preventing inspection or copying of certain filed documents, including specific affidavits and statements of fact. These orders were made pursuant to sections 77RE and 77RF(1)(b) and (c) of the Judiciary Act and were to remain in effect until further order, with exceptions for disclosure to court staff, legal representatives, and for prosecution purposes. The Court also made programming orders, including for the filing of a statement of agreed facts.