R v Millan
[2018] WADC 110
•31 AUGUST 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: R -v- MILLAN [2018] WADC 110
CORAM: SLEIGHT CJDC
HEARD: 21 JUNE 2018
DELIVERED : 31 AUGUST 2018
FILE NO/S: IND 198 of 2018
BETWEEN: THE QUEEN
AND
JOSHUA DAVID MILLAN
AND
WEST AUSTRALIAN NEWSPAPERS LTD & CHANNEL 7 PERTH PTY LTD (AS INTERVENERS)
Catchwords:
Nil
Legislation:
Criminal Procedure Act 2004 (WA)
Result:
Application dismissed
Representation:
Counsel:
| The State of Western Australia | : | Mr E J Cade |
| Accused | : | Mr F P Merenda |
| Intervener | : | Mr A V McCarthy |
Solicitors:
| The State of Western Australia | : | Commonwealth Director of Public Prosecutions |
| Accused | : | Ramdhas Poli Barristers and Solicitors |
| Intervener | : | Mr A V McCarthy |
Case(s) referred to in decision(s):
J v L & A Services Pty Ltd (No 2) (1995) 2 Qd R 10
John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131
John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344
R v Tait (1979) 46 FLR 386
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
Rayney v The State of Western Australia [No 8] [2017] WASC 66
Re Her Honour Chief Judge Kennedy; ex parte West Australian Newspaper Limited [2006] WASCA 172
Re His Honour Magistrate Gregory Smith; ex parte Millan [No 2] [2018] WASC 63
Re Hogan; ex parte West Australian Newspapers Ltd [2009] WASCA 221
Re Robins SM; ex parte Western Australian Newspapers Ltd (1999) 20 WAR 511
Russell v Russell (1976) 134 CLR 495
West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10
SLEIGHT CJDC:
Background
This decision concerns an application (the details of which I will give later in the decision) by the accused for a suppression order to prohibit the publication of his identity. The accused is charged by the Crown with an offence under s 233BAB of the Customs Act 1901 (Cth). In an abbreviated form the accused is charged with intentionally importing a child sex doll. The elements of the offence are as follows:
(i)the accused intentionally imported goods;
(ii)the goods were tier 2 goods, being an item of child pornography or child abuse material;
(iii)the accused was reckless as to the fact that the goods were tier 2 goods;
(iv)the importation of the goods was prohibited unless approval had been obtained; and
(v)an approval had not been obtained.
In order to constitute child pornography or child abuse material the item must depict a person, or representation of a person, who is, or appears to be under 18 years of age. The doll which is the subject of the charge is 100 cm and depicts a female person with very large exposed breasts. The main issue at trial is likely to be whether the doll depicts a person who is or appears to be under the age of 18 years. I anticipate that the Crown will argue at trial that the face of the doll depicts a child under the age of 18 years. In my opinion the issue is not clear‑cut. The silicon composition of the doll necessarily means that the facial skin is smooth like a younger person but on the other hand the doll has very large breasts. It will be a jury decision as to whether it is satisfied beyond reasonable doubt from all of the features of the doll that it depicts a child. The doll was never described by the distributor as being a doll depicting a child. Nor did the accused order a child doll. In my opinion the Crown's case is a weak case.
The evidence to be led by the Crown is likely to disclose aspects of the accused's sexual relationship with his partner. Certainly such issues were discussed in an interview with the accused which I assume will be a part of the Crown's case. The case is likely to cause acute embarrassment to the accused.
On 29 August 2017 the accused filed in the Perth Magistrates Court an application seeking an order 'suppressing all publication of any material that may have the potential to disclose the accused's identity as the accused in this matter'.
On 1 September 2017 his Honour Magistrate Mr G Smith made an interim order of suppression pending the hearing of the application. The application came on for hearing before his Honour on 28 September 2017. In an ex tempore decision his Honour refused the application for suppression but left the interim order in place until 5 October 2018.
The accused lodged an application in the Supreme Court of Western Australia for a review of the learned magistrate's decision. The application was heard by Tottle J on 30 January 2018. His Honour handed down a written decision on 26 February 2018: Re His Honour Magistrate Gregory Smith; ex parte Millan [No 2] [2018] WASC 63.
Tottle J found that the learned magistrate had made a jurisdictional error by applying the common law test as to whether a suppression order should be made. An order was made setting aside the magistrate's order dismissing the application. A further order was made that the matter be remitted back to the Magistrates Court for determination. However, the charge against the accused is an indictable offence and prior to the order being made in the Supreme Court the accused was committed (on 9 February 2018) to the District Court to stand trial. Accordingly, the Magistrates Court no longer has any jurisdiction in relation to this matter.
The charge against the accused is now listed for trial in the District Court commencing on 22 October 2018.
The media outlets, West Australian Newspapers Ltd and Channel 7 Perth Pty Ltd are given leave to appear on the application as interveners.
It is agreed between the parties that I should treat this hearing as a de novo hearing as to whether a suppression order should be made. The application for a suppression order by the accused is made pursuant to s 171 of the Criminal Procedure Act 2004 (WA). The section relevantly provides as follows:
(1)In this section, unless the contrary intention appears -
proceedings means proceedings on or in relation to a case.
(2)Subject to this section, all proceedings in a court are to be in open court and the courtroom where the court sits is to be open to the public unless this Act or the rules of court or another written law provides otherwise.
(3)On an application by a party to the case, or on its own initiative, a court may order a person who may be called as a witness in proceedings, other than the accused -
(a)to leave the courtroom and to remain out of hearing of the courtroom until called to give evidence;
(b)not to discuss his or her evidence with a person or persons specified by the court.
(4)On an application by a party to the case, or on its own initiative, a court may, if satisfied it is in the interests of justice to do so -
(a)order any or all persons, or any class of persons, to leave or be excluded from the courtroom during the whole of the proceedings, or a part of them specified by the court;
(b)make an order that prohibits the publication outside the courtroom of the whole of the proceedings, or a part or particular of them specified by the court;
(c)make an order that prohibits or restricts the publication outside the courtroom of any matter that is likely to lead members of the public to identify a victim of an offence.
(5)The powers in subsection (4) may be exercised by a court at any time after an accused is charged with an offence and before or after the accused first appears in the court on the charge.
(6)An order made under subsection (4) may be made subject to conditions specified by the court.
(7)If a court of summary jurisdiction makes an order under subsection (4)(b) or (c) in a case that involves an indictable charge in respect of which the accused is committed to another court for trial or sentence, the court to which the accused is committed may set aside the order, whether or not it also makes an order under this section.
Legal principles
The statutory test of whether a court should exercise a discretion to make a suppression order under subsection (4) is whether the court is satisfied it is 'in the interests of justice to do so'. This statutory test replaces the common law although the section should be construed against the common law background: Re Hogan; ex parte West Australian Newspapers Ltd [2009] WASCA 221 at [41]. The submission of counsel for the interveners was that the statutory test was essentially the same as the common law test. It was submitted that consistent with the common law the accused had to establish on cogent evidence:
(a)that the circumstances were exceptional in the sense that they came within one of the very limited exceptions recognised by the common law (one of these was that publication would put at risk a person's life);
(b)that the order sought is necessary to secure the proper administration of justice, that is, it being implied as necessary for the proper function of the court: J v L & A Services Pty Ltd (No 2) (1995) 2 Qd R 10, 38 [In my opinion this is a jurisdictional requirement. At common law, a court has no discretion as to whether it should sit in public or in private or make a non-publication order: R v Tait (1979) 46 FLR 386; J v L & A Services Pty Ltd (No 2) (19). The power to make a non-publication order arises out of the power of a court to exercise such powers that are necessary to enable it to act effectively within its jurisdiction: John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131.]; and
(c)that the non-publication order will prevent the unacceptable consequences of self-harm or suicide.
In my opinion this rigid formulaic approach submitted by counsel for the interveners is based upon the common law test and falls into the same error as identified by Tottle J in Re His Honour Magistrate Gregory Smith; ex parte Millan [No 2] as failing to apply the statutory test. The statutory test of 'interests of justice' is a broad concept and accommodates a wide range of considerations. The process of deciding of whether a non-publication order is in the interests of justice involves a balancing exercise of these considerations. The phrase 'interests of justice' means exactly what it says. It must be given a meaning which properly reflects the breadth of the matters: West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10 [31]. The concept of the 'interest of justice' is not limited to the common law principle of open justice and is not limited by what is necessary for the proper administration of justice: West Australian Newspapers Ltd v The State of Western Australia [31].
That is not to say that the common law principle of open justice is not a relevant consideration. In deciding what is in the interests of justice, the principle of open justice is a significant element to take into account: West Australian Newspapers Ltd v The State of Western Australia [31]. The principle of open justice promotes veracity of testimony by encouraging attention amongst those involved in a case to the seriousness of the judicial process. Publicity may cause (or encourage) others with relevant information to come forward. It increases the community's appreciation of the methods of government and confidence in judicial remedies. It also ensures that the fairness, integrity and efficiency of the courts, and its administrators, are subject to public scrutiny: Russell v Russell (1976) 134 CLR 495. Nevertheless, open justice is not an end in itself; it is a means of bringing about the benefits which flow from informing the community about the workings of the court, and while exceptions to the principle are narrowly confined at common law, it is not absolute nor does it represent an inflexible dictate: West Australian Newspapers Ltd v The State of Western Australia Owen JA at [30].
The concept of 'interests of justice' does not exclude from consideration, when appropriate and with significant limitations, the personal interests of those involved in the judicial process: West Australian Newspapers Ltd v The State of Western Australia [31] (Owen JA). The weight to be given to the interests of participants in the court process will vary according to the nature of the proceedings, the nature and effect of the prohibition in question, its connection with the core activity of the court's proceedings and the extent to which the rationale for the principle of open justice is or may be affected: Re Hogan; ex parte West Australian Newspapers Ltd [34] (McLure P).
As a general rule, given the importance of the principle of open justice a court will, in deciding the issue of whether it is in the interests of justice to make a non-publication order, require that there be exceptional circumstances and as a part of the balancing process take into account the extent of the diminution of the application of the principle of open justice: see for example West Australian Newspapers Ltd v The State of Western Australia [32] - [35] (Owen JA).
The prohibition sought in this case goes to the question of identifying the accused in the media. Nothing is sought by way of limiting the ability of the public from attending the proceedings where the name of the accused will be openly revealed. However, although the principle of open justice is primarily about conducting proceedings in open court, it is well recognised that this includes the facility of the media to report the proceedings. The entitlement to report is the corollary of having access to the court by members of the public who might normally not have the time or other resources to attend the court itself: John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 (Spigelman CJ) [20].
The naming of accused persons or even a witness plays an important role in promoting the principles of open justice. It can have the effect of demonstrating to the public that regardless of a person's wealth, position in society or political influence, the court process applies equally to all individuals (see for example the decision in Rayney v The State of Western Australia [No 8][2017] WASC 66).
In general, the widespread publicity created by modern media in criminal proceedings can cause acute embarrassment or do great harm to a person's wellbeing and reputation. Such personal interests will generally be sacrificed to the greater public interest in adhering to an open system of justice with full and frank reporting: John Fairfax Group Pty Ltd v Local Court of NSW (Kirby P) (143); Re Robins SM; ex parte Western Australian Newspapers Ltd (1999) 20 WAR 511, 515; Rayney v The State of Western Australia[No 8]. However, such things as embarrassment and concern of harm to other persons are not necessarily irrelevant. Although embarrassment and concern of harm to other persons related to an accused person may not constitute exceptional circumstances, they may be relevant in providing the full context of an accused person's mental state. Together with other factors, exceptional circumstances may exist if the accused's mental state is likely to lead to self-harm: see for example West Australian Newspapers Ltd v The State of Western Australia (Owen JA) [33]. However, the evidence that a person's life will be put at risk must be compelling: Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, 54-55; Re Her Honour Chief Judge Kennedy; ex parte West Australian Newspaper Limited [2006] WASCA 172.
Grounds for the application
The application by the accused before the Magistrates Court was for an order prohibiting the publication of any material that could identify the accused as an accused person in the proceedings. The application to this court amends the orders sought by removing the wording 'any material that could identify the accused' and seeks orders prohibiting the publication of:
1.The identity of the accused as the accused in these proceedings; and
2.Any film or photograph of the application that could identify the accused as the person in the proceedings.
These amendments to the application were in response to a submission by counsel on behalf of the interveners that the original order sought could be potentially breached by simply reporting the factual circumstances of the alleged offence to someone who had other information which then enabled them to conclude the accused was the accused.
The ground for the amended application is that there is a real risk that if the orders are not made, the accused's mental health condition will deteriorate such that he is likely to self-harm or attempt suicide.
The application by the accused for the suppression order is supported by an affidavit sworn by the accused on 28 August 2017. Annexed to this affidavit is a psychological report of Mr Doug Brewer dated 26 August 2017. The accused also relies on subsequent psychological reports of Mr Doug Brewer dated 6 September 2017 and 11 September 2017.
The affidavit of the accused deposes to the following matters:
(a)When the accused was 19 years of age he was charged with murder. He spent six months in prison on remand until the charge was dismissed.
(b)The experience had a profound impact on his life and he has never recovered from the experience. He suffers from post‑traumatic stress disorder and chronic depression.
(c)The accused avoids going out in public and only does so to buy groceries at the supermarket or to pickup and drop-off his son at school. Publication of the charge against him will cause him great anxiety and stop him going out at all.
(d)The accused is concerned that the publication of his identity in relation to these proceedings may cause friends of the deceased relating to the murder charge to seek revenge against him.
(e)The accused met his current partner in August 2014. His partner also suffers from depression and attempted suicide on 25 August 2017. He has concerns that disclosure of his identity in these proceedings will impact upon his partner's mental well‑being.
(f)The accused has a son aged 16. He separated from the mother of the son when the child was two years old. He has primary care of the child since his birth. The son lives with the accused Monday to Friday. The son attends a private college under a scholarship programme of gifted and talented education. He is concerned that his son will be ridiculed, victimised and embarrassed by his peers if the accused is identified in relation to the current charge.
(g)The accused is also concerned that the publication of his name in these proceedings may affect the employment of his son's mother who is employed at Legal Aid WA and his brother who is employed as a school teacher at a suburban public high school.
The psychological report of Doug Brewer of 26 August 2017 states that the accused was referred by his general practitioner to Mr Brewer on 20 February 2017 for anxiety related sequelae associated with the events back in 1995 which led to the accused being charged with murder.
The report gives a description of the circumstances of the accused being charged with murder. It states that the accused went to the aid of a friend being attacked and was set upon by the perpetrator's friend. A violent struggle ensued and in the course of defending himself the accused placed the other person in a head lock and the person died of asphyxiation. The charge against the accused was dismissed by a magistrate at a preliminary hearing. Following the dismissal of the charge, the accused was persistently threatened by the deceased's girlfriend and his friends which lead to the accused obtaining a restraining order.
The report of Mr Brewer states that on testing, the accused had scores in the 'extreme' range well above the cut‑off score considered to be indicative of post-traumatic stress disorder, and scores within the extremely severe range for depression, anxiety and stress. The report states that the accused 'is in constant fear that those associated with the deceased person, will avenge his death as they have vowed'.
The report concludes:
Mr Millan is extremely concerned that publication of his name may lead to his identity and his whereabouts being discovered by those whom he has spent the last 17 years hiding from. His primary concern is for his son who does not know of his father's past, may be identified and bullied and that this may impact on his schooling.
I strongly support Mr Millan's application for his name to be suppressed as I believe this would jeopardise his ongoing therapy. His mother has spent several years encouraging him to leave his house to attend treatment, and he has only just commenced the journey of recovery. – – – While there is no evidence to support the risk of serious retaliation still being considered by others, Mr Millan is physically shaken when he recalls the intensity and veracity of their threats. However, consideration is warranted, I believe, given the likelihood that his name appearing in the press may trigger some milder form of revenge or retaliation.
On the basis of this report the consequence feared by the psychologists is that the accused's therapy would be jeopardised. The second report dated 6 September 2017 was largely a rewrite of the earlier report of 26 August 2017. However, it mentioned the association between post‑traumatic stress disorder and suicide and the accused's past history of attempted suicide:
PTSD is all too often associated with suicide and self-harm. In the two years following Mr Millan's release from remand in 1996, he made several serious attempts at taking his own life. His constant hypervigilance and recluse lifestyle, together with unrelenting intrusive thoughts and nightmares, opened the door to drug addiction which greatly increased his suicidal ideation. When he became aware of his impending parenthood, Mr Millan was able to voluntarily 'kick' is (sic) dependence on drugs, however, there has been several further attempts to end his life when depression and hopeless despair was at an extreme.
Mr Millan is extremely concerned that publication of his name may lead to his identity and his whereabouts being discovered by those whom he has spent the last 17 years hiding from. Following his brief attendance in court to request a suppression order on 1st September 2017 he was harassed by reporters and TV camera operators as he left the building. During our therapy on Saturday 2nd September 2017 Mr Millan's psychological condition had deteriorated, his experience of the press following and filming him as he left court triggered the traumatic memories of the past. Ruminating on a deep sense of hopelessness and helplessness had begun to fuel his anxiety and depression. This is typical of what we see with severe, untreated, post‑traumatic stress sufferers, and frequently results in a major relaps (sic).
The final report of 11 September 2017 makes mention of the risk of suicide. The report states:
I am gravely concerned that such a relapse may not only interfere with his ability to continue treatment, but there is a very real possibility that his fragile grasp on the present may be lost and a steep descent into hopeless despair and depression may once again jeopardise is (sic) existence. I believe the single most impactful threat to Mr Millan's metal (sic) health is the re-traumatisation that is likely to occur if he is faced to relive the past through the newspaper, TV and social media of the present. This is known as 'flashback' in PTSD treatment and is often associated with disassociation, decompensation and self-harm.
In addition to this material described above I observed the accused when he appeared before me on the hearing of the application on the 21 June 2018. He manifested obvious signs of anxiety. His knees were severely shaking, his hands shook and his head was in a slumped forward position avoiding eye contact.
I think it is also relevant in this case to take into account the timing of the accused's application for a suppression order in this matter. The alleged offence took place 16 November 2016. The accused was first interviewed by the police on the 16 February 2017. The accused was first referred to Mr Brewer for anxiety on the 20 February 2017. The prosecution notice issued on the 6 July 2017 with a first appearance date on the 1 September 2017. The application for a suppression order was lodged prior to the first appearance date. I will return to the importance of this timetable later in this decision.
Submissions
The accused submits that I should find that the accused's mental condition is such that if a suppression order is not made his mental state is likely to deteriorate to the extent that he will be at risk of self‑harm and suicide. It is submitted this constitutes exceptional circumstances. It is submitted that the diminution of the open justice principles would be limited if the order is granted. It is submitted that the balance of the interests of justice favour such an order being made.
Counsel for the interveners submits that my decision should be driven by common law principles. While it is conceded that the likelihood of self-harm and committing suicide are recognised exceptional circumstances for the making of a suppression order, it is contended that there is insufficient evidence that the accused's life would be at risk and that the revealing of his identity would create the risk of suicide. It is contended that the evidence only establishes a likelihood of a deterioration in the mental state of the accused not the more drastic consequences of self-harm or suicide.
Counsel for the Commonwealth although neither consenting nor objecting to the order for suppression submits that the suppression order if granted should be removed once the trial is completed or a conviction entered by a plea or a discontinuance.
Factual findings
I make the following factual findings based upon the evidence before me:
1.The accused suffers from post-traumatic stress disorder. This produces extremely severe symptoms of anxiety, depression and stress.
2.The accused's symptoms have been long‑standing and severe. He previously attempted suicide shortly after he was charged with murder but has had a re-occurrence of suicidal ideation since that period.
3.The symptoms suffered by the accused originate from experiences when he was charged with murder, spent six months in custody and the charge against him was then ultimately dismissed.
4.The accused has lived for many years in fear of the deceased's friends seeking revenge. As a result of these fears and anxieties he has lived a reclusive lifestyle. However, the accused has lived a reasonably functioning life. He has been in two relationships. He has a son of whom he provides the primary care for from Monday to Friday of each week. There is no evidence that his post‑traumatic stress disorder has interfered with his employment.
5.I infer from the background of the murder charge and the fact that the accused took out a restraining order that the persons the accused fears may take revenge already know the identity of the accused. Further, the risk of retaliatory action seems unlikely given that the persons feared by the accused have not taken any action. However, I conclude that notwithstanding the remoteness of such retaliatory action, the accused remains anxious of such action being taken and genuinely is concerned that the publication in relation to this matter may generate a renewed hostility towards him.
6.The accused has only been able to take steps towards addressing his psychological problems since February 2017 by seeking treatment from a clinical psychologist Douglas Brewer. I conclude that the consultation with Douglas Brewer was generated by the accused's deteriorating mental state (which included anxiety and depression as a result of the charge against him). This deteriorating mental state was not only concerned with the accused's anxiety over his concerns of retaliatory action by persons associated with the deceased, but also from the accused's embarrassment arising from the nature of the charge and allegations against him and how those allegations may affect those close to him such as his son, partner, ex‑wife and brother. I believe this embarrassment and concern plays a significant role in the accused's deteriorating mental state and that this embarrassment and concern will be heightened if the accused's identity is published. I reach this conclusion in part upon the material contained in the accused's affidavit which indicates that it is a general anxiety about the charge against him which is causing some of his psychological deterioration. The accused's affidavit states as follows:
13.The publication of my charge will cause me great anxiety and stop me going out at all, even to the supermarket.
14.I also have concerns that the publication identity may cause the friends of the deceased relating to my murder charge to seek revenge against me.
In the report of 26 August 2017 Mr Brewer stated the accused's primary concern was for his son.
7.The publication of the accused's name will cause a deterioration in the accused's mental health and jeopardise his ongoing psychological treatment. Further, there is a real possibility that the accused will deteriorate to such an extent that a suicide attempt may be made. This finding is consistent with the reports of Mr Brewer which are unchallenged by any other evidence.
Conclusion
In this case I must balance the factors personal to the accused against the public interest of the accused being named under the principles of open justice. The decision in this case is not easy. The accused clearly has significant vulnerabilities. In relation to the present charge the accused has pleaded not guilty, he is presumed innocent and if he is ultimately acquitted there will occur a 'double whammy' of unnecessary harm in circumstances where the accused previously had served 6 months imprisonment for a murder charge that was later dismissed and which caused his pre-existing post‑traumatic stress disorder.
As stated above it is relevant to consider the extent to which a non‑publication order may cause a diminution in the principles of open justice. In this case, if a non-publication order is made, an important aspect of the principle of open justice of naming the accused will be removed. However, other aspects of the principle of open justice will not be diminished. The trial will still take place in open court and the media will be able to fully report the proceedings other than by naming the accused.
The accused's counsel in support of the application relies heavily upon the decision in West Australian Newspapers Ltd v The State of Western Australia. That case concerned an application for a non‑publication order by a witness who was to be called by the State in a murder prosecution against a Mr Heijne. Mr Heijne and the deceased were long‑term gay partners. The prosecution's case was that in the months leading up to the deceased death, Mr Heijne had formed a relationship with the witness who was 19 years of age. The deceased and his partner were in their 40s. The relationship between the witness and Mr Heijne was romantic and passionate and Mr Heijne had become obsessed with the young man. The State's case was that Mr Heijne had argued with the deceased and following the argument had strangled him to death. It was further contended that Mr Heijne had confessed to the witness that he had strangled the deceased. The witness had suffered clinical depression from the age of 15. He had undergone intensive treatment including admission as an inpatient to psychiatric facilities. He had undergone significant treatment for drug and alcohol abuse. From the time Mr Heijne had been charged with the murder charge the witness had been bedridden for days at a time and had experienced severe low moods, including strong thoughts of suicide. The witness lived in a small community outside Perth. His family was well‑known and respected in the community. He was concerned about the effect on his family if the community became aware of his relationship with Mr Heijne. The witness worked in a local business. He had a good reputation. He was in a serious relationship with a female person. He was greatly concerned about the impact it would have upon him if he had to reveal to this female person of his relationship with Mr Heijne. He stated that the publication of his name would cause his mental state to suffer and the new life he had sought to build would be lost. The judge at first instance held that these were exceptional circumstances and that the diminution of the principle of was minimal. An appeal to the Court of Appeal was dismissed.
However, there are important differences between the case of West Australian Newspapers Ltd v The State of Western Australia and the present case. Most importantly the application for non‑publication related to a witness. The non-publication of the identity of a witness can raise different considerations. A witness is often an innocent bystander who would prefer not to be involved. In the appropriate case, it is in the public interest that the publication of the name of a witness be prohibited to encourage witnesses to come forward and cooperate with the authorities. An analogy can be drawn with informers who are recognised as a classification of witnesses whose names may be subject to a non‑publication order.
In deciding whether to make a non-publication order in this matter I believe it is relevant to take into account that in many criminal prosecutions for sexual related offences, most accused persons are likely to be traumatised as a result of being charged. This is also in the context that often their family (including children) are stigmatised. In my experience from other cases the impact upon such an accused can be very severe, leading to severe depression, despair and suicidal ideation. Given the importance of the principles of open justice I believe judges must be cautious before making a non-publication order for such accused persons. Otherwise, given the nature of allegations involving sex offences, there may be many non-publication orders made and the principles of open justice will be significantly eroded.
Balancing all of these factors I have mentioned, I am not persuaded that the accused's mental health issues and his personal circumstances are sufficiently different from many other accused persons to justify the displacement of the normal practice of naming accused persons as a part of the open justice principles. Accordingly, I conclude that it is not in the interests of justice for there to be a suppression order and the application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CG
ASSOCIATE TO CHIEF JUDGE SLEIGHT30 AUGUST 2018
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