R v Parlov; R v Mena; R v Roberts (No 2)
[2022] ACTSC 223
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Parlov; R v Mena; R v Roberts (No 2) |
Citation: | [2022] ACTSC 223 |
Hearing Date(s): | 1 August 2022 – 5 August 2022 |
DecisionDate: | 5 August 2022 |
ReasonsDate: | 30 August 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [28] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – non-publication order – whether non-publication order should be made – impact of refusing non-publication order – where individual fears for safety if name is made publicly available – where a similar order was made in the Magistrates Court and is still in effect in relation to the same individual – impact of non-publication orders on potential witnesses |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 6703 |
Cases Cited: | Hogan v Hinch [2011] HCA 4; 243 CLR 506 |
Parties: | The Queen ( Crown) Rebecca Parlov (Co-accused) Sugimatatihuna Mena ( Co-accused) Bradley Roberts (Co-accused) |
Representation: | Counsel T Hickey ( Crown) K Lee (Parlov) J Sabharwal ( Mena) M Keaney (Roberts) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid (Parlov) Armstrong Legal ( Mena) Equal Justice (Roberts) | |
File Number(s): | SCC 205 of 2021 SCC 206 of 2021 SCC 208 of 2021 |
LOUKAS-KARLSSON J:
Before me is an application in proceeding filed by the prosecution on 29 July 2022 made pursuant to s 32(1)(a) and 111(1)(b)(ii) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and r 6703 of the Court Procedures Rules 2006 (ACT).
By that application the prosecution sought orders to the following effect:
(a) That the witness [redacted] give evidence at the trial by way of audio-visual link at a location outside the courtroom;
(b) That the publication of the name of [redacted] be forbidden;
(c) Any further order the Court considers appropriate.
The application is supported by two affidavits of Ms Hannah Mitchell affirmed on 29 July 2022 and 3 August 2022 respectively.
[Redacted] is one of the two complainants in this trial and is currently remanded at the AMC having been sentenced for an offence that she pleaded guilty to in the Magistrates Court. There is no need to discuss that charge in detail beyond noting the following matters.
First, the charge that [redacted] pleaded guilty to was destroying or concealing evidence with the intention of influencing a decision about starting a legal proceeding contrary to s 706(1) of the ACT Criminal Code. The evidence involved was evidence relating to this proceeding. Second, the accused persons in the trial before me are also housed in the AMC.
The fact that the complainant, who has made statements to the police concerning the accused and will be called to give evidence in these proceedings, is currently residing in the same location as the accused has led, according to the evidence of Ms Mitchell, to a number of incidents occurring at the AMC.
There was no disagreement that the first order sought should be made and I will not address the reasons for making that order further in these reasons. Suffice to say I accept the evidence that [redacted] who is one of the complainants in this trial feared for her safety were she required to come to Court on the same bus as one or more of the accused to give evidence.
Accordingly, I made an order permitting [redacted] to give evidence via audio-visual link from the AMC on 1 August 2022.
On 2 August 2022, on the first day proper of the trial, I made an interim order that [redacted] name not be published so that I could consider whether it was appropriate that the order sought by the prosecution be made.
The first affidavit of Ms Mitchell annexed the reasons for sentence of Chief Magistrate Walker. In those reasons, the Chief Magistrate varied the extant non-publication order (in the Magistrate’s Court matter) to extend only to [redacted] name and any information that might reasonably lead to her identification.
That order varied the previous non-publication order that covered all aspects of the proceeding. As the Chief Magistrate’s ex tempore reasons indicate the order was made on the basis that the publication of [redacted] name may lead to a further risk of harm to her were her name to become more widely known as an informant (see p 4).
In support of a non-publication order in these proceedings, the prosecution submitted that [redacted] could be subject to victimisation as a prison informer, citing R v Kwok [2005] NSWCCA 255 at [17]. As such, the prosecution submitted that a similar non-publication order should be made in this proceeding.
The prosecution further submitted that the publication of [redacted] name in these proceedings may also discourage other witnesses in her situation (being, prison informers, or those in a similar situation) from coming forward in other cases. The prosecution submitted that the order will assist [redacted] to give evidence free of illegitimate external pressure to either not give evidence or not give truthful evidence. The prosecution referred to the discouraging effect on other people to come forward in such circumstances, were this order not granted.
Counsel for Ms Parlov submitted that a non-publication order should not be made. Counsel submitted that the principle of open justice supports the argument against the imposition of a non-publication order in proceedings, and counsel referred to the case of R v Meegan [2014] ACTSC 263. Counsel for Ms Parlov cavilled with the idea that [redacted] fits under the definition of a ‘prison informer’, citing Pollard v The Queen (1992) 174 CLR as authority for that proposition. However, as counsel accepted, the categories are not closed. Prison informers are not the sole beneficiaries of non-publication orders in proceedings such as these.
Counsel for Ms Parlov also submitted that it was not correct to say that the absence of a non-publication order for this witness would discourage other witnesses in her situation coming forward, as [redacted] was arrested and gave an interview following arrest. The prosecution, in response, noted that [redacted] was initially unwilling to give evidence. On balance, I accept the prosecution’s submission and accordingly I do not accept counsel for Ms Parlov’s submission on this point.
Counsel for Ms Parlov submitted that there is no evidence of illegitimate external pressure upon [redacted]. Further, counsel submitted that [redacted] role in the trial is already known to the accused and other detainees at the AMC. Therefore, counsel submitted that there is a real question of futility in making this order, as there is evidence before the court that detainees, and the accused, are already aware of [redacted] role in this matter.
I accept the prosecution’s submission that this is fundamentally different to having [redacted] name (and therefore her role in this matter) published in the newspapers, and the knowledge circulated throughout the community and more widely through the AMC.
The prosecution further submitted that the absence of a non-publication order in these proceedings would make the non-publication order made in the Magistrates Court obsolete. I accept this submission.
Given the clear link between the offence the witness pleaded guilty to and the likely evidence that she may give at trial, were her name to be published in connection with this matter it would become obvious to whom the Magistrates Court proceeding referred to.
This matter is not, however, determinative. The non-publication order was granted in the Magistrates Court effectively to protect the safety of the witness. Accordingly, if I do not accept the submission that the witness will face some possibility of harm were her identity revealed now there is at least an argument that the underlying purpose of the Magistrates Court order would have been served.
However, for the reasons that follow I do not need to decide whether were I not to accept that the witness may come to harm whether the non-publication order would still be in the interests of justice in order to protect the extant order in the Magistrates Court. This is because I accept broadly the submissions of the prosecution that the order is necessary to protect the safety of the witness.
Conclusion of consideration
The central issue before me is whether an order pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) should be made to prevent the publication of the witness’ name.
Non-publication orders made by this Court were recently explored by the Court of Appeal in Monday (a pseudonym) v The Queen [2022] ACTCA 25 (Monday v The Queen).
As in that case, it is relevant to refer to the observations of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [21]–[22], cited with approval in R v Collaery (No 7) [2020] ACTSC 165; 354 FLR 7 at [122]:
An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional society. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.
It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court’s inherent jurisdiction or an inferior court’s implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could “cause an entire destruction of the whole matter in dispute”. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer’s victim, called as a prosecution witness, may be suppressed because of the “keen public interest in getting blackmailers convicted and sentenced” and the difficulties that may be encountered in getting complainants to come forward “unless they are given this kind of protection”. So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer. The categories of case are not closed, although they will not lightly be extended. Where “exceptional and compelling considerations going to national security” require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified. The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open-court principle. The jurisdiction of courts in relation to wards of the State and mentally ill people was historically an exception to the general rule that proceedings should be held in public because the jurisdiction exercised in such cases was “parental and administrative, and the disposal of controverted questions… an incident only in the jurisdiction”. Proceedings not “in the ordinary course of litigation”, such as applications for leave to appeal can also be determined without a public hearing.
It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings.
(emphasis added, citations omitted)
The safety of witnesses or potential witnesses is an accepted category of case where non-publication orders may be made: Monday v The Queen at [22]-[23] (Elkaim J and McWilliam AJ) referring to the case of Witness v Marsden [2000] NSWCA 52; 49 NSWLR 429 (Marsden). Elkaim J and McWilliam AJ in dismissing the application for leave to appeal in that case expressly distinguished the facts of Monday v The Queen from the situation where the order sought concerned a witness yet to give evidence, the very case before me.
As Heydon JA (with whom Mason P and Priestley JA agreed) stated in Marsden at [144]:
It is necessary that there be a minimalist interference with open justice to the extent of pseudonym orders in favour of the Witness. That is because without them the Witness reasonably fears death or physical injury, or alternatively an unnecessary loss of liberty. These are evils which it is necessary to avoid by that degree of minimalist interference. Without the orders, the Witness is exposed to hurt, and the party calling him is faced with the risk of testimony proceeding from a person who is reluctant, but in a particular sense. Many witnesses, as the plaintiff pointed out, are reluctant, but few are reluctant because of fears for their lives, safety or liberty.
Accepting that any non-publication order ought to infringe on the principle of open justice to the least extent, in my view, it is in the interests of justice that an order pursuant to s 111 be made prohibiting the publication of the witness’ name.
Orders
I confirm the orders of the Court made on 5 August 2022 were as follows:
(a) Pursuant to s 111(1)(b)(ii) of the Evidence (Miscellaneous Provisions) Act the publication of the name of the witness [redacted] is forbidden.
(b) The Registry is directed to inform members of the media of the terms of order 1.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rebecca Emder Date: 30 August 2022 |
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