R v Schiff

[2010] NSWDC 320

CITATION:	R v Schiff [2010] NSWDC 320
HEARING DATE(S):	15 October 2010, 5 November 2010, 10 November 2010, 14 December 2010
JUDGMENT DATE:	14 December 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Lakatos SC DCJ
DECISION:	Non-publication order revoked
CATCHWORDS:	Non publication order - principles of open justice - whether harm to offender's children is sufficient basis for non publication orders - Construction of Australian law in conformity with assumed obligations under International treaties - Police practice - undesirability of dissemination of video footage of arrest of suspects
LEGISLATION CITED:	Criminal Code (Commonwealth) Criminal Code Act 1995 Crimes Act 1900 UN Convention on Rights of the Child
CASES CITED:	Hume v The Council of the Kings School [2010] NSWSC 186 John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors [2005] NSWCA 101; 152 A Crim R 527 O'Shane v Burwood Local Court & Ors [2007] NSWSC 1300; 178 A Crim R 382 John Fairfax Publications Pty Ltd v District Court of New South Wales [20004] NSWCA 324 R v Kwok (2005) 64 NSWLR 335 R v Socialist Worker Printers & Publishers Ltd; Ex parte Attorney-General [1975] QB 637 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 R v C A L (1993) 67 A Crim R 562 P v D1 and Ors [no 3] [[2010] NSWSC 644 ESB v Victoria [2010] VSC 479 ABC v D1 & Ors Ex Parte The Herald & Weekly Times Limited [2007] VSC 480 Plaintiff S157/2002 v Commonwealth (2003) CLR 476
TEXTS CITED:	Criminal Justice through the Ages - From Divine Judgement to Modern German Legislation (Mediaeval Crime Museum, Rothenburg Germany)
PARTIES:	Regina v Phillip Brian SCHIFF
FILE NUMBER(S):	2009/00056560
COUNSEL:	P R McGuire R W Washington
SOLICITORS:	F Aroney T Bray

APPLICATION FOR CONTINUATION OF NON PUBLICATION ORDER

JUDGMENT

1. The offender has been charged with one count of use carriage service to groom a person under 16 years for sex, contrary to section 474.27(1) of the Criminal Code Act. The maximum penalty for that offence is 12 years imprisonment.

2. The offender was arrested by police officers at his home in West Pymble on 3 August 2009 and subsequently he entered a plea of guilty to the charge on 2 February 2010 before the Local Court.

3. The matter originally came before Judge Ainslie-Wallace (as she then was) and by reason of her Honour’s appointment to the Family Court, the matter was listed before me. An application for a non-publication order had been granted either by her Honour or another judicial officer and that remained in place until the proceedings commenced before me on 15 October 2010.

4. The offender made application for continuation of the order; the Crown opposed the application.

Background

5. The offender has two children, a daughter at high school and a son in primary school. The offender was arrested at his home and his children were present when this occurred. The arresting officers were accompanied by a police film crew and a television crew from a commercial television channel. Those crews took film and photographs, which showed the offender and part of his house.

6. The footage which was an exhibit in the proceedings, showed the offender with his face obscured, being escorted by police to a police vehicle. It was accompanied by some sound recording, which included the offender's surname, apparently uttered on one occasion by an arresting officer. Whilst reference to the name is discernible on close listening, I consider that any reasonable member of the viewing public would have difficulty in picking up that reference, unless he or she listened closely and/or replayed the footage. Nevertheless, it is in my view, regrettable that the vetting process (of which evidence was given) did not pick up this reference. This lapse underscores the very real concerns and significant adverse consequences which accompany the practice of filming arrests and releasing such film to the public domain.

7. The Police Service also issued a media release, which became Exhibit 1. The media release commenced with the following "Editor's note: Vision of the arrest will be made available to news crews today, via Network 10. Still images will be available via e-mail by contacting NSW Police Media Unit on … (telephone number provided)"

8. The media release contained the following information personal to the offender – he is a 45 year old West Pymble man, police attended at his home at West Pymble and arrested him there; he was refused bail and would appear at the Hornsby Local Court.

The Evidence

9. The offender stated that he had not seen the footage but acknowledged that he had one hand over his face during his arrest. He agreed that the house number was not shown; nor was the street name.

10. The offender stated that both his children have tried to come to terms with the relationship breakdown of his wife, his bipolar disorder, and previous positive interactivity with his children. He reluctantly agreed that the circumstances of the offence partly contributed to the adverse effects on his children. The offender accepted that part of the problem that his children had to get over, was created by him.

11. The offender stated that his daughter had attended six sessions with a psychologist.

12. Ms Schiff is a solicitor and the estranged wife of the offender - they have two children, a daughter born in July 1993 and a son born in September 2000. Her daughter is in year 12 and will do her HSC in 2011; her son is in year 4, at a local parish school.

13. At the time of the offender's arrest, they were 16 and 8 years respectively. The offender and his daughter were well known amongst her peers, he had a long involvement in his daughter’s sporting activities and she had been selected for the state squad in lacrosse and had been nominated for the Australian squad.

14. The offender had been the assistant coach of his son's team and had also a significant involvement at a state level with his daughter's sporting activity.

15. The family home was near her son’s school and the local shops; it was a two-storey renovation, and although there were a few of such renovations, traditionally there had been none in the area.

16. On 3 August 2009, Ms Schiff received a telephone call from her daughter - she told her mother that the police were at the family home and there were TV crews running down the side of the house. Ms Schiff arrived home after her husband’s arrest, there were a number of people present and she was unsure if they were police officers. She stated that her daughter started crying, and her son looked confused and had been quite upset earlier on.

17. Ms Schiff was told by a police officer from the Child Protection Unit that her children had become “quite distressed”.

18. Subsequent to his arrest, the offender's daughter had communicated with him on a couple of occasions, but found it too difficult and consequently, severed contact with her father.

19. Ms Schiff was asked to comment on her daughter’s change of demeanour before and after her father's arrest and said that at home, she was very quiet, whereas before she was normally outgoing; in public, she puts on a happy face.

20. Ms Schiff consulted the school counsellor, some two days after the appearance of the husband at the Hornsby local Court - it appeared that their daughter had become upset in the classroom.

21. The school counsellor advised Ms Schiff that her daughter was worried that people might find out about what was happening and this would have a negative impact on her - this was a normal reaction for a child of her age.

22. Ms Schiff observed that her daughter was upset every time her father's name was mentioned, she was anxious when somebody asked of his whereabouts, but otherwise she was coping reasonably well.

23. Later in the year, her daughter had a physical reaction to what happened, she had difficulty in breathing and was diagnosed as having a panic attack. Her daughter appeared to be most concerned when enquiries were made about the whereabouts of her father.

24. Ms Schiff's daughter was referred to a psychologist in Chatswood, who helped her develop techniques for dealing with panic attacks; otherwise the school counsellor was very helpful. The daughter was really upset on one occasion when a police officer attended at the school talking about cyber safety.

25. So far as her son was concerned, before the arrest he had some anxious tendencies and they escalated after the arrest; he became quite unmanageable and did not want do things by himself and did not wish to be left alone when sleeping or in the house; there were difficulties in his going to the bathroom alone or going upstairs alone.

26. Ms Schiff visited his school the day after her husband's arrest and spoke to the principal and school counsellor. After two weeks, she was advised that he was not coping.

27. The school counsellor recommended a referral to a specialist area at the Royal North Shore Hospital, an adolescent anxiety group program; that lasted about one term and there were no other therapeutic interventions required.

28. Ms Schiff stated that her son needs a structured existence and needs to know what is to happen - he repeats questions about what is to happen and gets upset very easily; he lacks resilience. His behaviour after arrest is a more extreme version of that which was occurring before the arrest.

29. Ms Schiff referred to an Internet search she had done in relation to the name Schiff, which indicates few persons with that surname.

30. In cross-examination, Ms Schiff confirmed that she had seen the video footage on YouTube and confirmed that her husband's face was blurred, the house number and street were not identified. Ms Schiff stated that she did not search for various surnames with a like pronunciation of her surname but a different spelling.

31. Ms Schiff was asked about whether her husband's criminal conduct had contributed to her children's reaction and she stated that her son did not have a sophisticated sense of the offending and he was affected by the process of arrest and his uncertainty of his father’s predicament.

32. In relation to her daughter, Ms Schiff said she did not want people to know and was angry about what her father had done to "our family"; she was aware of the fact that the allegation related to his chatting with an underage girl. Ms Schiff wished to protect her children from further trauma.

33. She accepted that her husband’s criminal conduct gave rise to his children's reactions and they continue to relive the memories when the matter is brought up - she stated that if their surname was Smith then the publicity would not have such an adverse effect.

34. Ms Schiff accepted that it was the cumulative stressors of the offence and the arrest which affected her children and stated that they could not compartmentalise each of the stressors.

35. Ms Schiff appeared to be a considered and honest witness. I have no doubt that both she and her children have been severely adversely affected by her husband's conduct and the circumstances of his arrest. On a fair consideration of her evidence, it appears that her children have reacted in a way which most normal children might do when their father has been charged with such an offence. It appears that the offender's son has suffered more, but some adverse effect was to be expected as an unfortunate consequence of their father’s offending.

36. In my opinion, the fact that the arrest of their father was filmed and conducted in the most public circumstances certainly has contributed to the trauma that the children have suffered. It is certainly true that having regard to the principles of open justice, when the offender was brought to court, his identity would have been disclosed, and accordingly, the potential for trauma to his family would have been present in any event. That is a natural and necessary part of the criminal process. In my opinion, such traumatic effects should be limited to that which is necessary for the proper conduct of the criminal process. I consider that what occurred was unnecessary, intrusive and a form of extra-curial punishment which may have had a place in mediaeval jurisprudence, but is out of place in the legal system of this State in the twenty-first century.

37. Mr Timothy Archer, the manager of corporate communications with the New South Wales Police Service testified that he was not present when the offender's arrest was made. However, Mr Stewart, who was a multimedia cameraman was there at the arrest scene, operating the second camera.

38. Mr Archer had no part in the editing of the footage. It was the policy of the unit to edit out all identifying features of a suspect in the footage and it would not be released before that was done. In addition, the footage needed to be legally cleared before release. Thereafter, it was given to Channel 10 and they provide it to other television channels in a news sharing arrangement.

39. The Police Service has recently set up a YouTube website on which it posts footage of various police operations including arrests. The website was not in operation in August 2009 when the offender was arrested. However, the identity of the suspects and those persons arrested are not published.

40. Mr Archer was unable to say how Mr Schiff's name escaped the vetting process.

41. He confirmed that the objectives set out in his statement for the cooperation between the Police Service and Channel 7 in relation to the programme "The Force", also applied to the New South Wales Police Service Multi Media releases.

42. Mr Archer confirmed that the footage taken by Channel 7, would not be released until such time as any judicial process had been completed and in the normal course, the consent of the persons depicted was sought. However, consent was not always obtained.

43. He stated that the media releases were not subjected to external legal scrutiny, but those in the media unit carried out that task.

44. Mr Archer did not agree that the various objectives were premised on the basis that those dealt with by police were guilty of the offences for which they had been arrested; he did agree, however, that none of the objectives related to concerns for the suspect and/or the suspect’s family.

45. Mr Archer confirmed that appropriately blurred footage taken by the Police Multimedia Unit of arrests, would continue to be uploaded to the Police YouTube website on the day following the police operation.

46. There was evidence from the Police Filming supervisor for the show “The Force”. He was in attendance at the offender’s arrest and he stated that none of the film crews entered upon the offender’s property. He also stated that footage from “The Force” is not permitted to be aired by Channel 7 until all court proceedings relating to it are finalised. This latter obligation is a contractual one between Channel 7 and NSW Police.

47. It follows therefore that persons who might ultimately be found not guilty of alleged criminal conduct and their families, would be filmed and the vision (usually edited) would be placed on the Internet. I am unaware if the suspects and/or their families are informed of the potential publication and the safeguards which should normally be put in place to protect their identity. If they are not so informed, in my view, it needlessly increases the trauma associated with their arrest. Even if this was thought to be justifiable in relation to a guilty person (a proposition with which I disagree), it is in my view, not justifiable in relation to a suspected person, or a person found not guilty at a later time, and certainly not justifiable in relation to the family of such a person.

48. In my opinion, it is hard to justify the public humiliation of a person and potentially his or her family, in a way which presently occurs. This is especially so when that result occurs in any event, when the person is brought before the court and the principles of open justice apply.

49. In my opinion, even if the system operates in an ideal manner as outlined by Mr Archer, that is, that all identifying features of a suspect are edited out, the present case demonstrates that that process can be flawed, either by the lack of due diligence or improper intent of those who might release such footage. I do not suggest that there was any mala fides in the present disclosure of Mr Schiff's name, but merely point out the possibility of this occurring.

50. The present case demonstrates, the tension between the proper administration of justice and the perceived public relations benefits to an investigative body like the Police Service of release of video footage of their operations - to use an analogous notion, there appears to be little consideration as to the collateral damage which might be occasioned by this process.

Submissions on behalf of the Offender

51. Mr Washington on behalf of the offender, stated that he was informed by the offender's family that if one was to follow links on the Internet, images of the offender's arrest, and his premises which are recognizable are shown. Friends of the accused and his family had made comment that they had seen the vision. Adverse and prejudicial comments were made to the offender's children about his arrest and the vision on the Internet. I note that neither the evidence of the offender or his wife supported the latter two propositions.

52. The children have nothing to do with the offence and the publicity over the Internet has had a psychological impact on them. Mr Washington submitted that the police and the media were cooperating with each other and this was trial by police and media. He submitted that there was an adverse impact on the administration of justice by reason of these matters.

Submissions of the Crown

53. The Crown submitted that the media release made no reference to the offender's name, and/or his address. He submitted that nothing which was published, tended to identify the offender.

54. The Crown submitted that there was no impropriety by the police and that a non-publication order was not warranted. He submitted that there was nothing to displace the orthodox principles of open justice. In particular, the Crown submitted that the test of necessity for the proper administration of justice had not been established.

Legal principles

55. The legal principles in relation to the concept of open justice have been developed over many centuries.

56. Recently, Latham J set out a useful summary of those principles in Hume v The Council of the Kings School [2010] NSWSC 186. Her Honour at paragraph [13] referred to the judgment of Spigelman CJ in John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors [2005] NSWCA 101; 152 A Crim R 527, where his Honour said:

[60] The principle of open justice is a fundamental axiom of the Australian legal system. It informs and energises numerous areas of the law … In this regard it is, however, pertinent to recognise that the principle has purposes related to the operation of the legal system. …

[61] The purpose of the principle of open justice was well stated by Jeremy Bentham who said:

Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial. …
[62] To similar effect are the observations of Lord Diplock in Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450:
If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice.
[63] Finally, Sir Harry Gibbs observed in Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 at 520:
It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted "publicly and in open view" ( Scott v. Scott (1913) AC 417, at 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for "publicity is the authentic hall-mark of judicial as distinct from administrative procedure"… T o require a court invariably to sit in closed court is to alter the nature of the court. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not close d to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court. …

57. At paragraphs [25] and following, her Honour referred to the limitations on pseudonym orders and stated:

[25] In O’Shane v Burwood Local Court & Ors . [2007] NSWSC 1300, McClellan CJ at CL quashed the order of a magistrate allowing a party to apprehended personal violence proceedings to be identified by way of a pseudonym. … The high point of the application to the magistrate in that case was a submission that the relevant party would be upset by the heightened level of media interest in the matter. His Honour said:
[48] The courts will not add to the list of categories ( John Fairfax Publications Pty Ltd v District Court of New South Wales at [19]) and the present case does not fall within any of the identified categories justifying a pseudonym order.

…

[50] The inconvenience, irritation or distress which may be suffered by Ms B due to media scrutiny is not a consequence of a kind that would undermine the proper administration of justice in hearing and determining APVO applications ...

[51] The values inherent in the principle of open justice would be seriously compromised if parties were able to conceal their identities merely because of a heightened degree of media interest in the proceedings, aroused by the involvement of a person with a high public profile.

58. At paragraph [26] Latham J referred to the following remarks by Howie J in R v Kwok:

It is important in light of the material relied upon by the prosecution to stress that it is the interests of justice that lie at the heart of such an application and not the interests of a private individual, such as a witness or an accused. The decided cases have emphasised the value of open courts to maintaining public confidence in the administration of justice. Open justice encompasses the right of the media to fully and frankly report cases before the courts, even at the expense of the personal feelings of those involved in judicial proceedings, including the innocent complainant.

59. In that case, the plaintiff claimed damages against the defendant on the basis that he was subjected to numerous serious assaults, including sexual assaults, whilst a student at the defendant's school between 1990 and 1992. These assaults were said to have been committed by fellow students, including the applicant.

60. Latham J granted a pseudonym order in respect of the applicant. The basis was two-fold:

i. if criminal proceedings were commenced against the applicant, any future application of the provisions of the Children (Criminal Proceedings) Act would be rendered nugatory; and

ii. the extreme reluctance of some of these “senior students” to make themselves known to the plaintiff or to the defendant, lest they be identified as perpetrators, or as witnesses to the assaults, who did nothing to protect the plaintiff or to report the behaviour to the defendant’s employees.

60. These are self-evidently more than adverse impacts on the parties, witnesses or their families but were tangible impacts upon specified aspects of the administration of justice.

61. In R v Socialist Worker Printers & Publishers Ltd; Ex parte Attorney-General [1975] QB 637, Lord Widgery CJ stated at p.145:

… all of us concerned in the law know that for more years than any of us can remember it has been a commonplace in blackmail charges for the complainant to be allowed to give his evidence without disclosing his name. T hat is not out of any feelings of tenderness towards the victim of the blackmail, a man or woman very often who deserves no such consideration at all. The reason why the courts in the past have so often used this device in this type of blackmail case where the complainant has something to hide, is because there is a keen public interest in getting blackmailers convicted and sentenced, and experience shows that grave difficulty may be suffered in getting complainants to come forward unless they are given this kind of protection.

62. In John Fairfax Publications Pty Ltd and Anor v District Court of NSW and Ors [2004] NSWCA 324, Spigelman CJ wrote:

[19] It is also well-established that the exceptions to the principle of open justice are few and strictly defined: … It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional constraints: …

[20] The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings: …

[21] From time-to-time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional: …

63. His Honour continued:

[30] The District Court has no express power to make an order of the character made by Norrish DCJ. The question is whether a power to make orders of this character is necessarily implied by the conferral of a criminal jurisdiction on the District Court.

…

[35] The test of implication, it must be emphasised, is a test of necessity. To the same effect is the test of necessity adumbrated by Lord Morris of Borth-y-gest in Connelly v Director of Public Prosecutions at AC 1301: “[t]here can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction”.

64. Spigelman CJ then examined the constraints upon the power to make non-publication orders, observing as follows:

[39] Both the existence of, and the limitations upon, a power to make a non-publication order are set out in the principal authority on this subject in this state: John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 , …

[40] In that case, McHugh JA said at 476–7:

The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it . Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is “necessary to enable it to act effectively within” its jurisdiction . [Emphasis added]
…

[47] In John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131, Mahoney JA went on to say (at 161):

This leads to the consideration of what is meant by “necessary to secure the proper administration of justice” in this context. The phrase 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 … 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 kind of conseque nces 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 restricted powers. Thus, there will be hardship on the informer or the security officer or the blackmail 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 att empt 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.
[48] The application of a test of necessity, as the foundation for an o rder relating to a police informer, was affirmed … in the form “as being necessary for the administration of justice”: … I have no doubt that the District Court has an implied power to make a non-publication order in such a case and in the case of other well-established categories, for example, to protect the identity of a victim of blackmail … or to postpone publication of evidence in a voir dire: …

65. His Honour concluded:

[87] Indeed there is authority in the Court of Criminal Appeal directly in point on the present issue. In R v C A L unreported 18 Feb 1993 , Hunt CJ at CL, with whom Smart and James JJ agreed, rejected an application that the applicant for leave to appeal against sentences for robbery and assault, should have his name and application suppressed, because he was to stand trial on a charge of murder. Hunt CJ at CL said:
This Court, in common with all of the courts administering the criminal law in this State, has power to order the non-publication of any report in the media of evidence given in certain specified prosecutions of sexual offences. That power is given in s 578 of the Crimes Act 1900. Not even that power permits a court to prohibit the report of the name of the accused unless such a report would reveal the identity of the complainant. Such a power to prohibit the report of the name of the accused is given in relation to the names or identity of children, by s 11 of the Children (Criminal Proceedings) Act 1987. Neither statutory provision is applicable in this present case. Courts do not have any general power to make such non-publication orders in other cases, not even the Supreme Court: … The application for a “suppression” order must accordingly be refused.

66. In R v CAL (1993) 67 A Crim R 562, Hunt CJ at CL stated the rationale as follows:

The use of a pseudonym for a witness is permitted where it is necessary in order to secure the proper administration of justice. The power of the Supreme Court to make an order that a witness be referred to in court only by a pseudonym is undoubted. … It is generally exercised where the administration of justice would be rendered impracticable by the disclosure of the identity of the particular person because the parties entitled to justice would reasonably be deterred by fear of that disclosure from seeking justice: … The usual case where a pseudonym is used is for the victim of blackmail: … The power has also been exercised in order to protect the identity of an informer: … It has now been held to have been properly exercised in relation to the victim in an extortion case: … In the last of those cases (at 161), the rationale for the exercise of the power is again stated … as being to avoid deterring the informer or the victim of blackmail or extortion from giving evidence in court. Such is said by the law to be necessary in order to secure the proper administration of justice.

Those cases were all concerned with the names of victims, although the procedure is adopted not out of tenderness towards the victim but because it serves the important public interest in securing convictions in such cases, where experience has shown that complainants will not come forward unless they are given this kind of protection: …

67. In O'Shane v Burwood Local Court (NSW) (2007) 178 A Crim R 392, McClellan CJ at CL refused to maintain a pseudonym order with respect to an applicant for an apprehended domestic violence order who had a “domestic relationship” with the Plaintiff.

68. The Application was in part based on adverse effects on the applicant’s children as a further relevant consideration, namely that “[Ms B] has a 16 year old and a 20 year old and if her name is disclosed that inevitably leads to identification of her children, both of whom live at home with her.”

69. His Honour stated:

[39] In R v Kwok (2005) 64 NSWLR 335 the controversy related to suppression of the name and identity of several complainants -witnesses in District Court proceedings for the prosecution of offences under the Criminal Code 1995 (Cth) relating to female persons taken into sexual servitude. Hodgson JA (with whom Howie and Rothman JJ agreed) decided that a non-publication order could be made because “there is an extremely close analogy with the crime of blackmail”(at [18]). His Honour made the following observations:
The only power in the District Co urt to make an order directed to non-publication of a witness’s name is such power as may be implied as being necessary for the administration of justice. …

The assimilation of this kind of crime to the existing established categories is not primarily to protect the victims from shame or embarrassment, but is rather to reduce the disincentive upon victims against reporting such crimes and thereby to reduce the support given by this disincentive to this kind of criminal activity (at [20]).

The Court will not freely invent new categories of cases, but in my opinion the Court may identify categories that, while not coinciding exactly with the existing categories, are very closely analogous to them and have the same rationale for the making of non-publication orders (at [16]).

[40] Witness v Marsden (2000) 49 NSWLR 429 concerned a witness who was a prisoner and had fears for his life and physical safety if he gave evidence without the protection of a pseudonym order. The court considered inter alia whether “the ends of justice would be defeated if the pseudonym order was not made” (at [114] per Heydon JA with whom Mason P and Priestley JA agreed).

[41] With respect to the relevant principle, Heydon JA said 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.

70. In P v D1 and Ors [no 3] [2010] NSWSC 644, Slattery J said:

[19] The Court of Criminal Appeal re-stated the principle that closely analogous categories may be considered in Attorney-General (NSW) v Nationwide News Pty Ltd [2007] NSWCCA 307 at [29]–[40] per Hodgson JA. His Honour there said that a restriction on publication could be justified not just by showing that it comes within one of the particular categories of exception to the open justice principle “but by directly showing that restriction on publication is necessary for the administration of justice” at [33].

71. In ESB v Victoria [2010] VSC 479, the proposed plaintiff was 75 years of age and lived in a small rural community in Victoria. It was alleged that, at both the boys’ home and the reformation centre, he was raped and sexually abused by other boys. It was also alleged that, while he was at the boys’ home, he was raped by the house master and physically abused by other staff.

72. A psychologist concluded that the publication of the proposed plaintiff’s name in the proceeding “would cause him significant psychological distress as such publicity would strike directly at his vulnerabilities and would … have a detrimental effect on his mental health.”

73. In these circumstances, Kyrou J determined that there was justification for the making of the non-publication orders for the following reasons:

[12] On balance, however, I have decided that it is necessary to make the proposed orders in order not to prejudice the administration of justice. I am satisfied that public knowledge of the identity of the proposed plaintiff would prejudice the administration of justice because there is an unacceptable risk that it would exacerbate the conditions affecting the proposed plaintiff’s mental health and might deter him from commencing the proposed proceeding. My reasons are as follows:


(a) The alleged rapes and other abuse are of a very serious nature and allegedly occurred regularly during the proposed plaintiff’s childhood. According to the psychologist, the proposed plaintiff has still not fully come to terms with the alleged traumatic events of his childhood and has difficulty discussing those events. In light of these considerations, I accept the psychologist’s opinion that the disclosure of the proposed plaintiff’s name would have a detrimental effect on his mental health.

(b) Although the medical reports do not state, in terms, that the proposed plaintiff would be reluctant to commence the proposed proceeding if his name were required to be disclosed, it is implicit in the reports that this is so. It is also implicit in the affidavit of the proposed plaintiff’s solicitor, where the solicitor states that the proposed plaintiff has instructed her “to proceed with a claim … against the proposed defendants subject to the preservation of his anonymity.” The psychologist’s reports portray the proposed plaintiff as a traumatised individual who is likely to be further traumatised by publication of his name in connection with events which continue to cause him to experience fear and guilt.

(c) The fact that the proposed plaintiff lives in a small rural community means that it is likely that he is known to the members of that community and that those members would take a keen interest in anything that was published about him. I accept the evidence of the proposed plaintiff’s general medical practitioner — who is familiar with the small rural community — that there is a risk that the proposed plaintiff and his family would be subjected to criticism, ridicule and discrimination if his name were required to be disclosed. While embarrassment, distress and invasion of privacy on their own are insufficient to justify a pseudonym-type order, in this case the subjection of the proposed plaintiff to any criticism, ridicule or discrimination is likely to exacerbate any pre-existing mental health problems from which he suffers.

74. In ABC v D1 & Ors Ex Parte The Herald & Weekly Times Limited [2007] VSC 480, the plaintiff issued a writ against the four defendants in which she claimed that she had been sexually assaulted by the specified defendants in a rural Victorian town (“the town”). Orders were obtained ex parte suppressing the identities of the defendants, as well as the plaintiff, and all the parties were identified by the use of pseudonyms.

75. Forrest J noted that the expert medical practitioner was asked to provide the opinions concerning whether identification of the plaintiff would affect her mental health and whether it would inhibit her ability to continue the action.

76. At paragraphs [41] – [45], His Honour listed a number of examples of pseudonym orders granted by courts:

· victims of an alleged blackmail;

· a prosecution witness in committal proceedings in respect of breaches of the Official Secrets Act;

· to prevent victimisation of potential witnesses;

. where it is necessary to ensure protection of officers of intelligence agencies or for matters of national security;

· police informers;

· potential discrimination against a plaintiff owing to a medical condition is another;

. a plaintiff’s adverse psychological reaction to the naming of defendants who had allegedly sexually abused her as a child led to all of the parties’ identities being suppressed

· haemophiliacs who had contracted HIV;

· in cases involving sexual assaults

77. His Honour also observed that:

[42] ... there are a number of criteria which will not satisfy the test in relation to the suppression of identity of parties or witnesses. Embarrassment, distress or invasion of privacy does not satisfy the test. In R v Chief Registrar of Friendly Societies (ex parte) New Cross Building Society the English Court of Appeal said:

It is not sufficient that a public hearing will create embarrassment for some or all of those concerned. It must be shown that a public hearing is likely to lead, directly or indirectly, to a denial of justice.

78. Forrest J concluded at paragraph [45] that there were “a number of established categories in respect to which suppressions may be made” but it was not “suggested that these categories cover the field. Each case will turn on its own facts; the primary question in this case is whether I am satisfied that it is necessary, in order to avoid prejudicing the administration of justice, that the defendants’ names should be suppressed.”

79. In John Fairfax Group Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at pp.163-4, Mahoney JA said:

First, it is important to remember — because, in what is said about the open conduct of the courts, it appears sometimes to be forgotten — that the open conduct of the courts can cause great pain and loss to those touched by what is done and what is publicised. It is, in my opinion, the function of the law — and the obligation of the courts that are administering it — to avoid such pain and loss to the extent that it is possible to do so. To the extent that this detriment to the individual is not avoided, the law is deficient and the courts have been less than fully effective.

Secondly, the assumption which, I think, sometimes emerges from what is urged for the open conduct of courts is that that principle is to be upheld and the right to publish is to be unrestricted notwithstanding that the individual suffers for it. If this assumption underlies the submissions made in the present proceeding, it is an assumption which I would not accept … the power which the community gives to any person, whether he be in Parliament, an official in government, or a judge is to be exercised properly and accountably. And, it is believed, that will be achieved if the power is exercised, as in the present case, in open court and subject to full publicity.

But that is not a unalloyed panacea. Experience has shown that open courts and unrestricted media publicity produce bad as well as good consequences: the principle is adopted, not because it is an unalloyed panacea, but because it is the least worst method of securing the proper exercise of judicial power and accountability for it.

Thirdly, it is for these reasons proper to consider whether and in what way the open court principle can be maintained without unacceptable detriment to individuals and the proper administration of justice.”

80. This review of the authorities discloses that humiliation and embarrassment to a witness or a party is not enough to override the principle of open justice. Similar considerations must apply to any humiliation and embarrassment to the family of any witness or party.

81. The question is whether a non-publication order is necessary to secure the proper administration of justice. All the cases reviewed indicate that any prejudice, which was said to flow to the person seeking a non-publication order, was connected with some aspect of the administration of justice. In many instances, the rationale behind the making of such orders was that the publication of the identity of a party or witness might have the effect that the party or witness would not participate in the legal proceedings, and accordingly there would be an adverse effect on the proper administration of justice.

82. I have been referred to no case in which a non-publication or pseudonym order was made by a court, solely on the basis of an adverse psychological or medical effect upon a witness or party, let alone a family member of such, unless such adverse effect had the potential to impact upon the bringing or the continuation of those or other legal proceedings.

83. In my opinion, as regrettable as the effect on the offender's children has been, their circumstances have not been demonstrated to bring any adverse effect on the proper administration of justice.

84. Mr Washington relies upon the United Nations Convention on the Rights of the Child, which came into force in September 1990. His written submissions candidly conceded that the Convention, whilst having been ratified by Australia, has not been implemented fully into Australian domestic legislation. He draws to attention to article 2(2); article 3; article 8(1) and article 16 - all of which deal with the protection of the fundamental rights of children, and in particular, direct State Parties to take all measures necessary to ensure that children are protected against all forms of discrimination or punishment on the basis of the activities of their parents.

85. The offender relies upon the High Court authority of Plaintiff S157/2002 v Commonwealth (2003) CLR 476. In that case, Gleeson CJ at paragraphs [27] and following, referred to the relevant principles of statutory construction, which were to be applied by that Court to the resolution of an issue relating to Commonwealth legislation. At paragraph [29], his Honour stated that where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity, the Court should favour a construction which accords with Australia's obligations.

86. The present case is not one of statutory construction. It involves the existence of an implied power of the District Court to make such orders as are necessary to secure the proper administration of justice. The authority referred to does not speak to any power of an inferior court such as the District Court, to imply a power to make a pseudonym order based upon an international convention, which has been ratified, but not passed into domestic legislation.

87. The authorities of the Court of Criminal Appeal and elsewhere have consistently stated that the power of the District Court in cases of this kind is constrained to that which is necessary. I note that there appears to be a divergence of views in the NSW Supreme Court as to the capacity of the courts to extend the existing categories but the weight of authority is against such extensions.

88. This Court, unlike the Supreme Court, possesses no inherent jurisdiction. I do not consider that it is appropriate for this Court, recognizing its place in the judicial hierarchy, to extend the existing law relating to pseudonym orders by reference to an international convention. If that is to be done, it is the province of Parliament, or at least the superior courts. To do so in my view, would not conform with the relevant principles in that it would extend the categories of cases where non-publication orders are warranted, but more importantly, extend them to a category of case where there has been no identified adverse impact of the administration of justice. It is the latter feature which has been a common and essential element in all the categories considered by the courts.

89. In arriving at this conclusion, I have much sympathy for the effect that these events that had on the offender's children, and if I was not constrained by the law, it would be tempting to put measures in place, which would protect their interests in the future. It follows from the above analysis, that in my opinion, a pseudonym order in relation to the offender, based upon the impacts of his public arrest and his criminal offending on his children, is not justified on the present state of the law.

Postscript – Police Service Practice of Disseminating Footage of Arrest of an Offender

90. In the course of argument, I raised my concerns about the practice that media outlets accompanied police in the course of their duties and filmed the arrest of an offender at a time when it was not clear that he would plead guilty or not guilty. Furthermore, I expressed concern that in filming the offender's arrest, it would have a prejudicial impact on the offender's family. I considered that this was an unnecessary consequence of the practice which appears to have been adopted - given that media releases were disseminated, which referred to the offender's arrest and its circumstances. I raised concerns about the possible application of the principles of contempt of court and pre-judgement by media organisations.

91. The Crown submitted that it was now commonplace in commercial television programs that offenders are filmed. He informed the court that the consent of the offenders is not obtained. He also stated that the film is not used until such time as any criminal proceedings, which may follow, are completed.

92. I expressed the view that there was a significant degree of unfairness to an arrested person, and the practice was fraught with potential difficulties concerning the improper influence on the administration of justice. The Crown subsequently adduced evidence relevant to these concerns.

93. I have earlier referred to the evidence of the manager of the Corporate Communications Unit of the New South Wales Police Force, Mr Timothy Archer. He confirmed that the Police Service was collaborating with Channel 7 in relation to a program entitled The Force.

94. In paragraph 5 of his statement of October 2010, he set out the objectives of the New South Wales Police Force in collaborating with Channel 7 - these related to the deterrence of criminal activity and demonstrating to the public that offenders are brought to justice.

95. So far as The Force program is concerned, Mr Archer stated that the consent of the people featured in the program is sought; if consent is not gained, the identities of people featured in the program are not disclosed (unless they are subsequently convicted of an offence). It appears therefore that the view is taken that absent consent, the footage may be broadcast upon the conviction of the offender.

96. Mr Archer also gave evidence of the Police Multimedia Unit, which is used to film the arrest phase of police operations. He stated that the protocol is that the footage is edited and pixelated and then released to Channel 10. It is also then uploaded onto the Police YouTube website. This usually occurs on the day after the arrest. In the present case, the YouTube site had not been established, and therefore this video package was not loaded onto that site.

97. Mr Archer conceded that there was nothing in the objectives of the police co-operation with Channel 7 (which were similar to the objectives of the Multimedia Unit) which had regard to the interests of the suspect and/or his family. He did not say and I am unaware of whether suspects are informed in any event, of the editing out of matters which might identify them.

98. The effect of Mr Archer's evidence was that police co-operate with media organisations to release footage of amongst other things, the arrest of suspected persons. The purpose appears to be in aid of a public relations exercise to show that the Police Service is succeeding in one of its primary missions - namely, the arrest and bringing to justice of offenders. In my view, there can be no criticism of such an endeavour, provided there is a fair assessment of any potential harm which may accrue to the arrested person and his or her family and whether the steps taken sufficiently limit that harm. Furthermore, it appears that the footage is released to one or two days after the arrest.

99. Mr Archer stated that a protocol is put in place, to eliminate identifying features of the suspected person. As with most systems, such a protocol can be imperfect - the present case illustrates such a failure. That failure permitted a soundbite, which identified the offender by surname. Consistent with Mr Archer's evidence, the footage was edited in-house (it appears that Mr Stewart, the cameramen confirmed this) and “legalled” by external lawyers. Notwithstanding this two-tiered process, Mr Schiff’s name was not excised from the video, which was disseminated.

100. Whether or not the offender pleads guilty or is found guilty, human experience shows that, no doubt the presence of television cameras in circumstances of arrest, brings added pressure to an offender - this occurring at a point when he or she is only a suspect.

101. Even if the editing is successfully done, it is likely that those who know the suspect and his family and the general circumstances may in effect put two and two together and deduce that the film is in fact of the offender. The editing may be effective in preventing the wider community from becoming aware of the identity of the offender but as happened in the present case, it may do little to prevent those who know the offender and his family from accessing vision of the arrest, and identifying the person even if his face was pixelated.

102. In either event, the filming of an arrested person at a time when the person is most vulnerable, is apt to cause distress, humiliation and loss of face. I infer that a suspect is not told that the film will be edited and accordingly may believe that his identity will be disseminated without any protection at all.

103. I have great reservations about whether the unilateral actions of the New South Wales Police Service in facilitating such publications are appropriate. Release of the footage has the effect of adding to any curial punishment which may be meted out to the offender upon conviction. This in turn has echoes in mediaeval times past.

104. In the publication - Criminal Justice through the Ages - From Divine Judgement to modern German Legislation (a publication which emanated from Mediaeval Crime Museum, Rothenburg Germany), various learned authors write about ancient and mediaeval criminal laws and punishments imposed upon offenders.

105. In the chapter entitled, Penal Law as a Phenomenon of the History of Ideas, Professor Dr Wolfgang Schild states as follows --

Present-day criminal law and the law of criminal procedure and execution of punishment is perceived by us as government rule by way of statutory norms: a person may be prosecuted only for behaviour, which is already precisely described in the criminal code; he must be considered innocent until duly proven guilty, for which reason he must be given a trial before the eyes of the general public, and without physical and mental coercion.

106. Dr Schild refers to the present day approach to penal law as "humane and social" and continues:

But on considering the Middle Ages, and even the 18th century, we are confronted with a completely different, depressing picture: we find cruelty and pitilessness on a scale that shakes our faith in the humanity of those times.

107. However, Dr Schild points out that in order to properly understand the basis of ancient law and punishment, one needs to view it from the standpoint and in the spirit of those times. From that position, it appears that the public nature of punishment and denunciation of offenders, had as its basis the fact that there was no structured system of law enforcement and justice and families and tribes had to administer the law and punishment, in a way which satisfied the victims, and his or her family or tribe. This was in order to reduce the prospect of further retaliatory breaches of the peace. In addition, the ancient societies believed in witchcraft and superstition in a way quite foreign to the modern viewpoint. Accordingly, there appears to have been some justification in the need to publicly display suspects and miscreants.

108. In my opinion, there is no such need in modern Australian society, given the fact that this society has well resourced and expert law enforcement bodies, which apply the criminal law and protect the community.

109. I note, for example, that ancient notions concerning various offences are rightly considered to be out of date, ill-informed and inapplicable by today's standards. It was for example, necessary when the offence of rape was charged for a raped woman to give "hue and cry", and also to complain of her distress with "a broken body, with fluttering hair etc". Furthermore, the law recognized rape only if it was committed against a respectable woman, but not a " vagrant woman".

110. In a chapter headed Symbolic Procession, the following extract appears:

The symbolic procession was a punishment often decreed in place of merited, more severe penalties, in most cases, corporal punishment. Bondsmen, who ought to have been hanged, had to walk barefoot through the streets with a rope around their necks. … Originally a voluntary expiatory sacrifice, from the late Middle Ages onwards, the carrying of candles was a Church imposed penance for persons found guilty of witchcraft and adultery. It was then taken over into the secular law of atonement is a special form of expiation.
The route was always lined by crowds of onlookers, who gave vent to their satisfaction and malicious glee with catcalls and abuse. Even assault, for instance by throwing eggs, was allowed, for during the execution of their punishment, the wrongdoers were not protected by the public peace. To end on a curious note, in Subersdorf, the judges even supplied the eggs.

111. In more recent times in Germany, there have been television programs that attempt to unmask paedophiles using young actresses as bait. In one case, this has caused the relevant suspect to vanish, and in another case, to commit suicide. The German Justice Minister is quoted as issuing "a sharp warning … against television being used to promote frontier justice, as German media accused the program's makers of engaging in ‘voyeurism’ and ‘witchhunts.’"

112. The Justice Minister told the press: "a state based on the rule of law does not need to pillory people."

113. I accept that the police and other law enforcement authorities have a significant role in educating the public about criminal activity and ways to protect against it. In the present case that involved the nature and threat of internet grooming offences such as forms the basis of the present offence. It is particularly understandable given that the potential victims are children, that public education and warnings are a matter of significant public interest. It is in my view, incumbent upon the State as far as it can, and adults to assist in the protection of the more vulnerable persons in our community, such as children. However, I consider that this could have been adequately achieved by the issue of a media statement, reporting on the arrest of this offender.

114. The fact that police and commercial television cameras were present the latter by arrangement with police, at the offender's premises and were provided the opportunity to film his arrest, appears to me to involve elements of public humiliation, directed towards an accused person, and not it should be noted, a convicted person. In the case of an innocent person, it clearly constitutes needless and undeserved humiliation. In the case of a person who is ultimately found guilty, it involves a public humiliation, which is over and above any lawfully warranted punishment which the person might receive. It smacks of a trial and conviction by the media.

115. These are notions which might have been expected in the Middle Ages in Europe and elsewhere. As with many of the archaic practices in the Middle Ages which modern civilised societies have rejected, in my view, such public humiliation has no place in 21st century Australia. This is especially so when, as it appears is the case here, innocent family members of an accused person are affected by this adverse publicity. I accept the Crown's argument that it was primarily and substantially the offender's conduct, which brought upon him, the public scrutiny, which occurred. However, in my view, the public humiliation should be no more than that which accompanies the proper execution and reporting of the legal process.

116. I agree with the sentiments of the German Justice Minister that any state based on the rule of law does not need to pillory people. And furthermore, I do not propose to encourage the supply of any eggs or encourage others to despatch them.