R v O'Dempsey (No 3)

[2017] QSC 338

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Dempsey (No 3) [2017] QSC 338

PARTIES:

R

(applicant)

v
VINCENT O’DEMPSEY
(respondent)

FILE NO:

SC No 1046 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application for non-publication order: identity of police informant

ORIGINATING COURT:

  Supreme Court at Brisbane

DELIVERED ON:

16 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2017

JUDGE:

Applegarth J

ORDER:

Subject to any affected party making an application and

submissions, and until further order, there be no

publication of the name or identity of the witness, [the name of the witness appears in the formal order]

COUNSEL:

D L Meredith for the prosecution
A J Glynn QC for the defendant

SOLICITORS:

Office of Director of Public Prosecutions for the prosecution Robertson O’Gorman Solicitors for the defendant

1. At a pre-trial hearing on 16 March 2017 the prosecution sought a non-publication order in relation to the name of a witness who was to give evidence in the trial of R v O’Dempsey.  That witness is a police informant.  The defendant did not oppose the making of such an order and a non-publication order was made that day until further order.  On 16 May 2017 the prosecution, with the support of the defendant, asked for the non-publication order to continue.  I was persuaded to continue the order until further order. These are my reasons for that decision.

Relevant principles

1. The principle of open justice is one of the most fundamental aspects of the justice system in Australia.  Exceptions to the principle are few and are strictly defined[1].

   [1]     John Fairfax Publications Pty Ltd v District Court(NSW) (2004) 61 NSWLR 344 at [17] – [20]; J v L & A Services Pty Ltd (No 2) (1995) 2 Qd R 10 at 44-45.

2. Our judicial system is based on the notion that proceedings are conducted in open court. Justice must not just be done; it must be seen to be done[2].

   [2]     Scott v Scott [1913] AC 417; Russell v Russell (1976) 134 CLR 495 at 520.

3. In exceptional circumstances, a case or part of it will be heard in camera.  Also, in exceptional circumstances, a non-publication order, which restricts publication of all or parts of a court proceeding, will be made.  However, information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment or distress[3].

   [3]     J v L & A Services Pty Ltd (No 2) (1995) 2 Qd R 10 at 45.

4. The cases recognise that there is a “significant distinction between holding proceeding[s] in camera and holding proceedings in open court but with directions having the consequence of concealing the names of witnesses (with or without a further direction limiting publication of evidence)”[4].

   [4]     R v His Honour Judge Noud; Ex parte MacNamara (1991) 2 Qd R 86 at 104; R v Socialist Worker Printers and Publishers Ltd [1975] 1 QB 637 at 651-652.

5. This can involve use of a pseudonym to conceal an identity.  It…