R v Watcharaporn Nantahkhum - [2012] ACTSC 55

R v WATCHARAPORN NANTAHKHUM
[2012] ACTSC 55 (29 March 2012)

EVIDENCE – prohibition of publication of evidence – offences of sexual slavery –
non-publication of names of witnesses

Court Procedures Act 2004 (ACT), s 72
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 91, 111

Scott v Scott [1913] AC 417
John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344
Rinehart v Welker [2011] NSWCA 345
R v Kwok (2005) 62 NSWLR 335
R v BR [2010] ACTSC 17
R v McIvor (2010) 12 DCLR (NSW) 77
R v DS (2005) 191 FLR 337
Director of Public Prosecutions (Cth) v Ho [2008] VSC 610
R v Tang (2008) 237 CLR 1

EX TEMPORE JUDGEMENT

No. SCC 149 of 2010

Judge: Refshauge J
Supreme Court of the ACT

Date: 29 March 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 149 of 2010
AUSTRALIAN CAPITAL TERRITORY )

R
Applicant

v
WATCHARAPORN NANTAHKUM
Respondent

ORDER

Judge:  Refshauge J
Date:  29 March 2012
Place:  Canberra

THE COURT ORDERS THAT:

Under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), the names or any other information that may enable the identities of the following witnesses in these proceedings not be published by newspaper, periodic publication, radio, television, electronic or other means, or otherwise be disseminated the public or any section of the public: [three names were then listed].

That courts conduct their business in the open, where all are permitted to watch and hear proceedings and all, especially the media, are permitted to report the proceedings is a fundamental and essential part of the nature of courts. This is an important factor in ensuring the credibility of the justice system and an antidote to any hint of corruption or impropriety.
The principle of open justice, however, has never been absolute. Even in the leading case articulating the principle, Scott v Scott [1913] AC 417, exceptions were identified and accepted, though the exceptions are few and strictly confined.
As Spigelman CJ identified in John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 at 352; [17], this principle can sometimes conflict with other principles, such as the principle of a fair trial. The task of a judicial officer is then to balance the two and strike a position that gives due weight to each.
The legislature has accepted the need for exceptions to the principle of open justice and so, for example, access to courts dealing with children and young people is confined under s 72 of the Court Procedures Act 2004 (ACT) and orders forbidding publication of proceedings or parts of proceedings can be made under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (Miscellaneous Provisions Act), formerly s 91 of the Miscellaneous Provisions Act.
That section now provides:
Prohibition of publication of evidence etc
(1)       This section applies if a court considers that –
(a)the publication of evidence given, or intended to be given, in a proceeding is likely to prejudice the administration of justice; or
(b)in the interests of the administration of justice the names of any of the   following people should not be published:
(i)    a party to the proceeding;
(ii) a witness, or intended witness, in the proceeding.
(2)       The court may, at any time during or after the hearing of the proceeding, make an order forbidding the publication of –
(a)the evidence or a stated part of the evidence; or
(b)a report of the evidence; or
(c)the name of the party or witness.
(3) The court may make an order under subsection (2) (a) or (b) subject to any stated condition or for any period the court considers appropriate.
(4) If a court makes an order under subsection (2), the court may, if it considers it appropriate, direct that stated people, or everyone except stated people, remain outside the courtroom for a stated period.
(5) For this section, the publication of a reference or allusion to a person is taken to be a publication of the person’s name if –
(a)the reference or allusion discloses the person’s identity; or
(b)the person’s identify might be reasonable worked out from the reference or allusion.
In this case, I have been asked by the Crown to make orders that the names of certain persons not be published. These people are witnesses in the trial. In the trial, the accused is charged with certain offences arising out of the conduct of a prostitution business in Canberra. The witnesses are not sex workers but the clients of the business.
Orders in respect of the sex workers who will give evidence in this trial have already been made under s 91 of the Miscellaneous Provisions Act (as it was then), forbidding the publication of their names.
It is expected that the witnesses, whose names are sought to be suppressed, will be required to give evidence that may expose them to severe embarrassment. That by no means of itself suffices as justification for the court making a non-disclosure order. Embarrassment is caused by open justice every day, when, for example, otherwise law abiding members of the community are prosecuted for offences such as drink driving. That is not a basis for making a non-publication order.
The administration of justice is referred to in s 111 of the Miscellaneous Provisions Act as a ground for making an order prohibiting publication of certain information. Thus, as foreshadowed by Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 at 353; [19], the legislature has, by enactment of that section, added to the list of exceptions for the common law principles of open justice.
As Tobias AJA said in Rinehart v Welker [2011] NSWCA 345 at [41], the administration of justice is a “multi-faceted concept”.
In R v Kwok (2005) 64 NSWLR 335 at 341–3; [14], [16], [18], [19], [24] and [36], Hodgson JA, with whom Howie J and Rothman J agreed, held that:
There are recognised categories in which the publication of names may, as a matter of necessity, be prohibited, namely informers, victims of extortion and particularly blackmail, and where necessary for national security.
...
I accept that 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 making non-publication orders.
...
In my opinion, in this respect there is an extremely close analogy with the crime of blackmail, which is included in the categories referred to by Spigelman CJ in John Fairfax Publications Pty Ltd v District Court (NSW) (at 358 [49]); and in my opinion, it is appropriate to assimilate the newly legislated crimes associated with sexual servitude to the established category of blackmail. In both cases, victims will be discouraged from reporting the crime and giving evidence against alleged perpetrators because doing so will bring to light matter that could be considered damaging to the victim’s reputation: in the case of blackmail, the discreditable information that is the subject of the blackmail, and in cases such as this, the engaging in prostitution. However wrong it may be for people to think badly of another because that other had engaged in prostitution, particularly if this is under some kind of compulsion, I think the Court can recognise that there is a real danger that victims will fear that this will happen, and that this circumstance could be a powerful disincentive against victims coming forward, just as in the case of blackmail.
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 reduce the support given by this disincentive ...
Even if it is the case that some of the witnesses will be prepared to give evidence if their names are disclosed, and will only suffer embarrassment, it may be nevertheless appropriate to make a non-disclosure order in the case of those witnesses, because of the desirability of promoting the detection and prosecution of crimes of this sort, which will be aided if victims can have some assurance of anonymity.
...
The principle that justice must be done openly is of central importance, but it is not absolute and overriding in all cases. The qualification to that principle sought in this case is not a large one: cf Witness v Marsden (2000) 49 NSWLR 429 at 432 [14]–[17]. If a non-publication order is made, the evidence of the witness will still be given in open court and their identity will be known to the accused persons.
Thus, the likelihood that witnesses will not come forward – if they must, as in these circumstances, not only give evidence in open court, but have their names more widely published – is a fetter on the administration of justice, which requires that crimes be punished if credible evidence attests to their commission to the requisite standard of proof.
Again, while persons may have evidence to give in such cases, they may be dissuaded from giving it if their names are published. This may well affect the fairness of the trial for both the accused and the Crown. As I said in R v BR [2010] ACTSC 17 at [40]–[41]:
Applying these principles, it seems to me that the critical issue is whether it is reasonably likely that the fair trial (which, relevantly, includes a sentencing proceeding) of the applicant will be impeded if the order is not made. An accused person has this right both at common law and under the Human Rights Act 2004 (ACT).
It seems to me that if a witness, who may well be an important witness ... is likely to be rendered unable to give evidence because of the publication of the applicant’s name, there is a real risk that the fairness of his trial will be compromised. A court would have to consider this carefully. To have relevant witness not be able to appear would be prejudicial to the administration of justice, and accordingly, it would be in the interest of justice that such reasonable steps should be taken as may ensure that it not occur.

I note, also that in similar prosecutions in NSW and Victoria, similar orders have been made. In R v McIvor (2010) 12 DCLR (NSW) 77 at 79; [6], Williams DCJ said
In order to preserve their anonymity the five victims in order of giving evidence and in chronological order of their association with the offenders were Sophie, Jasmin, Susie, Yoko and Mickey. These were the names used by them during their respective periods of sexual servitude with the offenders.

In other cases, initials have been used for sex workers: R v DS (2005) 191 FLR 337 at 341–2; [8]–[12]; Director of Public Prosecutions (Cth) v Ho [2008] VSC 610 at [9].

This anonymity has not been limited to the sex workers who were the subject of the offences. In R v DS, the accused’s name was replaced by initials (at 338; [2]), though this was likely because she was to be a witness in another trial. In R v Tang (2008) 237 CLR 1 at 12–14; [8]–[13], Gleeson CJ, with whom Gummow, Hayne, Heydon, Crennan and Kiefel JJ agreed, used initials for a witness who gave evidence about the recruitment of the sex workers and the financial arrangements made in respect of their involvement in the prostitution business.

The accused’s counsel made no submissions on this application.

Having considering the matter carefully, I am of the view that the order sought should be made and I will make it.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 29 March 2012

Counsel for the applicant:  Ms S Cronan
Solicitor for the applicant:  Commonwealth Director of Public Prosecutions
Counsel for the respondent:   Mr J Sabharwal
Solicitor for the respondent:  Rachel Bird & Co
Date of hearing:  29 March 2012
Date of judgment:  29 March 2012