R v BR
[2010] ACTSC 17
•4 MARCH 2010
HUMAN RIGHTS ACT
R v B R
[2010] ACTSC 17 (4 MARCH 2010)
CRIMINAL LAW AND PROCEDURE – non-publication order – principles for granting - “desirable in the interests of justice” – ensuring witness able to appear – Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 91.
APPEAL – decision following committal for sentence – whether decision is an appeal from a Magistrate or exercise of original jurisdiction – decision not appeal.
Crimes Act 1900 (ACT), s 65
Criminal Code Act 1995 (Cth), s 474.19
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 91, 91(1)(b), 40
Adoption Act 1993 (ACT), s 112
Coroner’s Act 1997 (ACT), s 40
Court Procedures Act 2004 (ACT), s 72
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40, 91
Magistrates Court Act 1930 (ACT), s 310
Federal Court of Australia Act 1976 (Cth), s 50
Human Rights Act 2004 (ACT)
Court Procedures Rules 2006 (ACT), r 4731
Magistrates Court Practice Direction No 2 of 2007 (ACT)
R v P J [2006] ACTSC 37
Re F (1989) 51 SASR 141
X v South Australia & Ors [2002] SASC 53
Medical Board of South Australia v AYHT (2001) 212 LSJS 208
Scott v Scott [1913] AC 417
Russell v Russell (1976) 134 CLR 495
Bond (1992) 62 A Crim R 383
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
R v XZ (2000) 116 A Crim R 308
R v Tillett and Ors; Ex parte Newton and Ors (1969) 14 FLR 101
Mellor v Thompson (1885) 31 Ch D 55
In re Martindale (1894) 3 Ch 193
Re A Barrister and Solicitor; Re Legal Practitioners Ordinance (No 2) 1970 (ACT) (1979) 40 FLR 316
National Companies and Securities Commission v Bankers Trust Australia Ltd and Ors (1989) 24 FCR 217
Attorney-General v Leveller Magazine Ltd & Ors [1979] AC 440
Australian Broadcasting Commission v Parish & Ors (1980) 29 ALR 228
E v Australian Red Cross Society & Ors (1991) 27 FCR 310
SRD v Australian Securities Commission & Anor (1994) 123 ALR 730
Commissioner of Australian Federal Police v Cox (1989) 87 ALR 163
Estates Property Investment Corporation Ltd v Pooley (1975) 3 ACLR 256
R v Tait (1979) 46 FLR 386
Raybos Australia Pty Ltd & Anor v Jones (1985) 2 NSWLR 47
John Fairfax Group Pty Ltd (Receivers & Managers Appointed) & Anor v Local Court of New South Wales & Ors (1991) 26 NSWLR 131
No. SCC 38 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 4 March 2010
IN THE SUPREME COURT OF THE )
) No. SCC 38 of 2010
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
AND
BR
ORDER
Judge: Refshauge J
Date: 2 February 2010
Place: Canberra
THE COURT ORDERS THAT:
Under s 91(1)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) the publication of the name of the applicant, and accused, be forbidden.
The directions hearing on 25 February 2010 be vacated.
The proceedings be listed for sentence on 6 May 2010.
The prosecution file and serve a statement of the facts on which it proposes to rely on or before 29 April 2010.
The Chief Executive prepare a pre-sentence report under Part 4.2 of the Crimes (Sentencing) Act 2005 (ACT).
The bail granted to the accused be varied by deleting condition 3 and substituting “not to access a computer other than a laptop allocated by his employer, Enterprise IT Global and then only for the purpose of employment through the virtual global network between 7.00 am and midnight.”
and adding an additional condition:
“4. That the accused not access the Internet except via a computer in accordance with condition 3”.
The accused was charged with intentionally possessing child pornography contrary to s 65 of the Crimes Act 1900 (ACT) and using the Internet to access child pornography contrary to s 474.19 of the Criminal Code Act 1995 (Cth).
He was summonsed to appear in the Magistrates Court on 11 January 2010 and the matter was adjourned by the Registrar of that Court (see Magistrates Court Practice Direction No 2 of 2007 (ACT)).
On 1 February 2010, he appeared before a Magistrate and entered a plea of guilty to both charges and was committed to this Court for sentence.
At that time, he made an application for an order under s 91 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Miscellaneous Evidence Act) for an order prohibiting the publication of his name. The learned Magistrate adjourned the application to later in the day and then refused it.
The next day, on 2 February 2010, the applicant appeared before me. This was as a result of a special listing for the Magistrate had, in accordance with r 4731 of the Court Procedures Rules 2006 (ACT), adjourned the matter to 25 February 2010 for directions, the current standard procedure.
The applicant had the matter listed before me urgently as he wished to make a further application for an order under s 91 of the Miscellaneous Evidence Act.
Before the learned Magistrate, the applicant appeared by his solicitor; before me he appeared by counsel.
I note that the application was not opposed by Ms Viskovich from the Commonwealth Director of Public Prosecutions who appeared to prosecute the matter before me. That was the position set out in an email forwarded to the applicant’s solicitors on 29 January 2010. It did note, as was proper, that the issue of non-publication may need to be re-visited at a later time.
On this matter, there were two issues that I needed to consider. In the first place, the question arose as to whether this was an appeal from the decision of the Magistrate or otherwise a collateral attempt to challenge the Magistrate’s decision and, of course, secondly, whether the order should be made.
Order of the Magistrate
I am satisfied that, in no relevant sense, is this an appeal from the decision of the Magistrate. Whilst, of course, I would have the greatest of respect for a decision made by another judicial officer, the fact is, having been committed for sentence to this Court, the applicant is now under the jurisdiction of this Court, and this Court can, on the material before it, make its own decisions about procedural matters that affect its proceedings. It is, in that sense, an exercise of original jurisdiction.
I have not been asked to review the decision of the learned Magistrate. Mr Archer, who appeared for the applicant, frankly said to me that, “he was making the application on a somewhat different basis from that made to the learned Magistrate”.
While the affidavit that was read to the learned Magistrate was read to me, there were additional facts which were, by consent, put orally to me by Mr Archer, as counsel, (sometimes described as “being put from the bar table”) and the way in which the application was phrased was somewhat different.
It appears that, before the learned Magistrate, emphasis was placed on the fact that the applicant has three school-aged children and believed that they are very anxious because they expect that if the applicant’s name is published they will be victimised, bullied and teased.
In R v P J [2006] ACTSC 37, Connolly J dealt with an accused who had been committed for trial and an order suppressing his name that had been made by the learned Magistrate. His Honour commented (at [1]) that the order was made “on the sole, but proper basis that as the accused had school-aged children they would be identified by any publicity flowing from the publication of his name.” His Honour did not, however, give reasons for that conclusion and there was no reference to the relevant statutory provisions, or the basis on which the order might have been made. That decision might be said to be inconsistent with cases such as Re F (1989) 51 SASR 141 (at 147) and X v South Australia & Ors [2002] SASC 53 (at 58), though see Medical Board of South Australia v AYHT (2001) 212 LSJS 308.
I cannot say whether the learned Magistrate’s attention was drawn to R v PJ, although, there was a reference to it in one of the annexures to the affidavit. If it was, I would have expected him to have followed it.
It is not my intention to agitate the question of whether that decision is correct and I do not do so, or whether it provides a basis for saying that potential victimisation, bullying or other prejudice that might flow to children of accused persons is a sufficient justification for making a non-publication order of the name of accused persons.
As indicated above, that is not the way the application was framed before me.
Whether the order should be made
The way the application was made by the applicant to me was that his wife was to be a witness in the sentencing proceedings and that publication of his name might risk that possibility. Annexed to the affidavit was a letter from a local psychiatrist who indicated that the applicant’s wife was under his care following a long history of mental impairment which was somewhat multifaceted.
The doctor opined that she “remains very fragile and it is my medical judgment that her psychiatric condition will deteriorate particularly if it becomes known in the general community that her husband is facing the criminal charges”.
In addition, and by consent, Mr Archer told me that the effect of publication is likely to be that not only will her condition deteriorate, but that it will deteriorate to such an extent that she would be unable to give evidence.
The Law
It has long been the position that court proceedings should be held publicly and in open view. That principle is fundamental: Scott v Scott [1913] AC 417 (at 437, 440, 445).
That principle was affirmed by the High Court of Australia in Russell v Russell (1976) 134 CLR 495 (at 505, 520, 532).
The application of these principles to criminal proceedings was made clear by Murray J when, in Bond (1992) 62 A Crim R 383, his Honour said (at 420-421):
On the criminal side of the court’s jurisdiction, it seems to me that the fundamental principle of the public administration of justice has even more point to it than in the exercise of the court’s civil jurisdiction. Every aspect of the exercise of the court’s criminal jurisdiction is concerned with the liberty of the subject which is to be properly placed in jeopardy by the performance of the public prosecutorial function by an agency of the State. It is vital, generally speaking, that every aspect of the performance of that function and every aspect of the work of the court, should be subject to public scrutiny. In general terms, in my opinion, the public performance of such functions positively enhances the due administration of criminal justice. Not only does it enable the community to fully participate in the process of the administration of the criminal law, but the public scrutiny of the process of the prosecution of charges of criminal offences enables the community to monitor the content of the substantive and procedural criminal law. So far as individual cases are concerned, the fact that testimony is given and evaluated in public, in my view, plays a positive part in inhibiting the perjurer and putting the brakes on those who may be tempted to seek to pervert or otherwise interfere with the course of justice. It may result, in addition, in other persons coming forward so that the court is ultimately presented with a more complete factual picture against which to judge the issues raised in any given case.
There are, however, some exceptions to this at common law. Probably, the clearest significant exception is to have the identity of an informer withheld: John Fairfax & Sons Ltd v Police Tribunal of New South Wales & Anor (1986) 5 NSWLR 465 (at 472); R v XZ (2000) 116 A Crim R 308 (at 310). Similarly, exceptions might be made for national security (R v Tillett & Ors; Ex parte Newton and Ors (1969) 14 FLR 101 (at 127)), for disclosure of secret processes (Mellor v Thompson (1885) 31 Ch D 55) and for cases involving wards of court or other disabled persons (In re Martindale (1894) 3 Ch 193 (at 199-201)).
In recent times, however, there have been a range of statutory exceptions made to this principle where either hearings are in camera or orders prohibiting publication of evidence may be made: see, for example, Adoption Act 1993 (ACT), s 112; Coroner’s Act 1997 (ACT), s 40; Court Procedures Act 2004 (ACT), s 72; Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40 and 91; and Magistrates Court Act 1930 (ACT), s 310.
While some provisions are made in the form of directions or provisions for hearings in camera, or made in the form of power to prohibit publication of evidence, so far as publication is concerned, there may be quite a difference between them. An order for a private hearing does not of itself prohibit publication of its proceedings: Re A Barrister and Solicitor; Re Legal Practitioners Ordinance (No 2) 1970 (ACT) (1979) 40 FLR 316 (at 319). Where a hearing in camera is held, the public is excluded but an order that evidence not be published will not commonly be made. Whether it can be made depends on the statute establishing the body or giving it power: National Companies and Securities Commission v Bankers Trust Australia Ltd & Ors (1989) 24 FCR 217 (at 232).
It would appear that where a non-publication order is not made, those persons who are present during the private hearing may publish the course of the proceedings thereafter: Scott v Scott (at 448, 449-452, 476). To some extent, at least at common law, this depends upon the nature of the case. For example, where the court is closed because secret processes are the subject matter of the court, subsequent publication would render the closing of the court illusory: Scott v Scott (at 448). Similarly, for example, it has been held that publication of evidence given on a voir dire, which publication might come to the attention of the jury, is prohibited: Attorney-General v Leveller Magazine Ltd & Ors [1979] AC 440 (at 450).
Against this background, I have to consider whether I can make an order under s 91 of the Miscellaneous Evidence Act. That section provides:
91. Prohibition of publication of evidence etc
(1) If it appears to a court that –
(a)the publication of evidence, given or intended to be given, in a proceeding before the court, is likely to prejudice the administration of justice; or
(b)in the interests of the administration of justice, it is desirable that the name of a party to, or a witness, or intended witness, in a proceeding before the court be not published;
the court may, at any time during or after the hearing of the proceeding, make an order –
(c)forbidding the publication of the evidence or a specified part of the evidence, or of a report of the evidence, either absolutely or subject to any conditions that the court specifies or for any period that is specified; or
(d)forbidding the publication of the name of the party or witness.
(2)If a court makes an order under subsection (1), the court may, if it considers appropriate, also direct that people specified by the court, or everyone except people so specified, must remain outside the courtroom for the period that the court specifies.
As will be seen, it must appear to the court that “in the interests of the administration of justice” it is desirable that, in this case, the name of the accused not be published.
This section has been subject to comparatively little judicial consideration. It is in very similar terms to s 50 of the Federal Court of Australia Act 1976 (Cth). In the leading decision on that section, namely Australian Broadcasting Commission v Parish & Ors (1980) 29 ALR 228, Bowen CJ (at 236) identified the relevant issues as follows:
What s 50 requires to be considered is prejudice to the administration of justice. The elements in the administration of justice which are involved on the side of a litigant seeking an order for confidentiality are the public interest in preserving the privacy of confidential arrangements so far as practicable and the public interest in the court’s doing justice between the parties, which will be hampered if the very proceedings in which the agreement is under challenge require the efficacy and value of the agreement to be seriously damaged, if not destroyed, before the result of the proceedings is determined. It appears to me that the learned trial judge has not identified this public interest correctly.
On the other side, is the principle of open justice. In according weight to this principle, the learned trial judge appears to me to have accorded to it almost the weight it would have if there were to be a very substantial, if not a complete derogation from it. In such a case, it would, of course, have immense weight.
Although the principle of open justice is of great importance in exercising the discretion under s 50, it is not necessarily the whole weight of that principle which must be placed in the scales. The derogation from the principle, which is involved in making any order under s 50, may be very great; or it may not be great; it may be very small. In placing that principle in the scales, the degree of derogation involved in the proposed order is an important matter to be considered.
It is relevant to note that what was at issue in those proceedings was the confidentiality of an agreement between the parties. Thus, the articulation of the interest of the litigant in that extract from his Honour’s judgment is not generic but specific to that case.
Some of the interests of litigants that have been recognised by the courts include:
·the interest in not deterring persons from making claims to the court: E v Australian Red Cross Society & Ors (1991) 27 FCR 310 (at 313-4);
·that the disclosure would destroy the subject matter of the proceedings: Australian Broadcasting Commission v Parish & Ors (at 255);
·the secrecy of a process or other commercial sensitivity: SRD v Australian Securities Commission & Anor (1994) 123 ALR 730 (at 733);
·that the disclosure would expose a party to criminal proceedings overseas: Commissioner of Australian Federal Police v Cox (1989) 87 ALR 163 (at 167), though there is countervailing authority to that proposition;
·that the financial affairs of a public company would be adversely affected: Estates Property Investment Corporation Ltd v Pooley (1975) 3 ACLR 256 (at 257-8);
·where the life or safety of an important witness may be jeopardised by disclosure: National Companies and Securities Commission v Bankers Trust Australia Ltd & Ors (at 221).
The courts have been at pains, however, to indicate that a non-publication order will not be made “merely because it would be just, in some abstract sense, that such an order be made”: SRD v Australian Securities Commission & Anor (at 733[36]).
Similarly, factors that may be relevant to a refusal to grant such an order include the fact that there is, or may be, speculation about the subject matter of the proceedings, leading possibly to a need for the public to know who or what is not the subject of the proceedings: SRD v Australian Securities Commission & Anor (at 734).
Further, it is also particularly undesirable that criminal proceedings or contempt proceedings should be conducted in closed court or with restrictions on publicity: R v Tait (1979) 46 FLR 386 (at 401).
It is also clear that, whilst harm can be done by the widespread circulation of publicity about the involvement of persons in criminal or quasi criminal proceedings, and this damage may be quite unjustifiable, that is
a price [which] must be paid for the open administration, particularly of criminal justice. The alternative, of secret trials, where important public rights may be in competition and individual liberty may be at risk is so unacceptable that courts of our tradition will tend to avoid the consequence
per Kirby P in Raybos Australia Pty Ltd & Anor v Jones (1985) 2 NSWLR 47 (at 59- 60).
Thus, one must identify the particular interest in relation to the administration of justice, which is affected. As Bowen CJ said in Australian Broadcasting Commission v Parish & Anor (at 234), in relation to the concept of prejudice to the administration of justice:
This is not a reference to the need to preserve open justice. It is, as I have already suggested, a reference to another public interest, that is, the public interest that the court should endeavour to achieve effectively the object for which it was appointed: to do justice between the parties.
As Samuels JA said in Raybos Australia Pty Ltd v Jones & Anor (at 61):
That is to say, would publication prevent (or perhaps seriously impede) the fair resolution of those proceedings according to law, which is what I take the ends of justice to require and the public interest in its due administration to demand?
Further, Mahony JA said in John Fairfax Group Pty Ltd (Receivers & Managers Appointed) & Anor v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 (at 161):
The phrase [necessary to secure the proper administration of justice] does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceedings will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be – or at least will be assumed to be – that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmailed victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based.
Findings
Applying these principles, it seems to me that the critical issue is whether it is reasonably likely that the fair trial (which, relevantly, includes a sentencing proceeding) of the applicant will be impeded if the order is not made. An accused person has this right both at common law and under the Human Rights Act 2004 (ACT).
It seems to me that if a witness, who may well be an important witness, as the wife of an accused may be in sentencing for the offences faced by this accused, is likely to be rendered unable to give evidence because of the publication of the applicant’s name, there is a real risk that the fairness of his trial will be compromised. A court would have to consider this carefully. To have a relevant witness not be able to appear would be prejudicial to the administration of justice, and accordingly, it would be in the interest of justice that such reasonable steps should be taken as may ensure that it not occur.
In this regard, I am mindful of the fact that such an order might only last until the trial and may well then be reconsidered. See E v Australian Red Cross Society & Ors. I am also mindful of what fell from Earl Loreburn in Scott v Scott (at 446), namely that, “justice will be frustrated or declined if the Court is made a place of moral torture”. I also take into account what fell from Lockhart J in National Companies and Securities Commission v Bankers Trust Australia Ltd & Ors (at 221) about the safety of witnesses.
As a result, on 2 February 2010, I ordered under s 91(1)(b) of the Miscellaneous Evidence Act that the publication of the name of the applicant, and accused, be forbidden.
I also gave the usual directions and other orders as requested.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2010
Counsel for the Prosecution: Ms Y Viskovich
Solicitor for the Prosecution: Commonwealth Director of Public Prosecutions
Counsel for the Defence: Mr K Archer
Solicitor for the Defence: Ben Aulich & Associates
Date of hearing: 2 February 2010
Date of judgment: 2 February 2010
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