Regina v DWF19 (No 1)
[2019] NFSC 3
•8 October 2019
SUPREME COURT OF NORFOLK ISLAND
Regina v DWF19 (No 1) [2019] NFSC 3
File numbers: SCC 1 of 2019
SCC 2 of 2019Judge: RARES J Date of judgment: 8 October 2019 Catchwords: COURTS AND JUDGES – application to suppress reasons for sentence – whether suppression of Court’s reasons a matter of practice or procedure under ss 169, 213 and 214 of the Criminal Procedure Act 2007 (NI) and or s 19(4) and (5) of the Supreme Court 1960 (NI) – principle of open justice – publication of reasons for judgment or sentence and open justice not matters of practice or procedure – where principle of open justice requires Court to sit in public and to allow public to be present and make fair reports of what occurred in open Court, in absence of any contrary law made by Parliament – absence of any statutory power of Court to supress reasons for judgment or sentence – Court’s duty to give reasons for imposing sentence that finally disposes of proceeding – where ss 169, 213 and 214 of the Criminal Procedure Act 2007 (NI) applied only to persons disseminating information from or about proceedings and did not apply of their own force to the Court – where Crown failed to apply for offender to be given pseudonym immediately after arrest to protect victims’ identity – where impact on victims and their families did not justify closing the Court when Court could give reasons for sentence that sufficiently satisfied requirements of open justice – where child victim not aware of full extent of crimes committed against her – where offender could be arraigned by excluding particular matter that it was necessary in the interests of justice not to reveal publicly from so much of count in indictment when read aloud in Court but where offender had full version of indictment to which he could enter plea Legislation: Criminal Code 2007 (NI) ss 108, 113, 118, 119, 122
Criminal Procedure Act 2007 (NI) ss 167F, 169, 213, 214
Federal Court of Australia Act 1976 (Cth) s 37AG, Pt VAA
Norfolk Island Legislation Amendment (Protecting Vulnerable People) Ordinance 2018 (NI) ss 2, 4, item 59E in Sch 3
Sentencing Act 2007 (NI) ss 5, 119
Supreme Court Act 1960 (NI) s 19
Cases cited: Attorney‑General v Leveller Magazine Ltd [1979] AC 440
Canadian Pacific Tobacco Company Ltd v Stapleton (1952) 86 CLR 1
Commonwealth Director of Public Prosecutions v Christian [2019] FCAFC 5
Daubney v Cooper (1829) 10 B&C 237
Dickason v Dickason (1913) 17 CLR 50
Fleming v The Queen (1998) 197 CLR 250
Fox v Percy (2003) 214 CLR 118
Hogan v Hinch (2011) 243 CLR 506
John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Matthews v R (No 2) [2013] NSWCCA 194
R v Christian (No 2) [2018] NFSC 5
R v Hamilton (1930) 30 SR (NSW) 277
Reg v Denbigh Justices, Ex parte Williams [1974] QB 759
Scott v Scott [1913] AC 417
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72
Date of hearing: 7, 8 October 2019 Category: Catchwords Number of paragraphs: 61 Counsel for the Prosecution: Mr J Hunter QC with Ms S Cartledge Solicitor for the Prosecution: Commonwealth Director of Public Prosecutions Counsel for the Offender: Ms L Reece Solicitor for the Offender: McIntyres Lawyers ORDERS
SCC 1 of 2019
SCC 2 of 2019BETWEEN: REGINA
Prosecutor
AND: DWF19
Offender
JUDGE:
RARES J
DATE OF ORDER:
8 OCTOBER 2019
THE COURT ORDERS THAT:
1.The offender be identified by the pseudonym “DWF19”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
DWF19 (the offender) stands charged on two indictments, the first, signed on 15 July 2019 (filed in proceeding 2 of 2019) (the first indictment), consisting of a single count that occurred in 2011, and the second, signed on 2 August 2019 (filed in proceeding 1 of 2019) (the second indictment), consisting of 30 counts that occurred in 2017 or 2018.
The indictments allege a total of 31 counts involving sexual and related offences committed against three young female complainants, whom I will call respectively “victim 1” who is named in the first indictment, and “victim 2” and “victim 3”, who are named in the second indictment. The offender indicated that he would plead guilty to all of the 31 counts as soon as the form of the indictments to be preferred against him by the Crown had been settled, which occurred on or about 26 July 2019. The offender entered pleas of guilty on all counts yesterday.
The indictments
The first occasion of offending occurred between 20 July 2011 and 20 October 2011 when the offender committed an act of indecency on victim 1, who was then 16 years of age, knowing that she did not consent, or being reckless as to whether she consented or not, contrary to s 118(1) of the Criminal Code 2007 (NI). That count is the subject of the first indictment and carries a maximum penalty of five years imprisonment.
The remaining 30 counts are in the second indictment. Count 30 involves conduct that occurred on a date between 1 September 2017 and 2 July 2018, when the offender used victim 2, who was then under 16 years of age, for the production of child pornography, contrary to s 122(3) of the Code. That count carried a maximum penalty of 10 years imprisonment and or 1,000 penalty units.
The remainder of the 29 counts involved victim 3, who, at the relevant times, was a child of 10 years of age and, therefore, under the age of 12. She was subjected to 13 acts of indecency, contrary to s 119(2) of the Code, that each carried a maximum penalty of 10 years imprisonment; 13 acts of sexual intercourse, contrary to s 113(2) of the Code, that each carried a maximum penalty of 14 years imprisonment; and three uses of her for the production of child pornography contrary to s 122(1)(a)(i) of the Code, that each carried a maximum penalty of 15 years imprisonment and or 1,500 penalty units.
Relevantly, s 108 of the Code defines the expression “sexual intercourse” as follows:
108 Meaning of sexual intercourse in Part 3.2
In this Part:
sexual intercourse means—
(a) the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
(b) the penetration, to any extent, of the vagina or anus of a person by an object, being penetration carried out by another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
(c) the introduction of any part of the penis of a person into the mouth of another person; or
(d) cunnilingus; or
(e) the continuation of sexual intercourse as defined in paragraph (a), (b), (c) or (d).
Because of the definition of “sexual intercourse”, the offending against victim 3 as described in indictment 2 could comprehend a broad range of sexual acts that fall within that definition. For the purposes of these reasons, as I will explain, it is not desirable to identify which particular variant of that definition was the sexual intercourse in any of the 13 counts to which the offender has pleaded guilty.
The law recognises that any form of sexual intercourse, as defined, by an adult of the offender’s age, of about 53 or 54 at the time of his offending against victims 2 and 3, with a child under the age of 12, is a repulsive and despicable act. Such conduct is calculated to cause significant psychological harm to that child that will last probably for his or her life, as well as to cause significant psychological and emotional harm to those who love and care for him or her, and is likely to affect them and their immediate families.
The Crown’s application to suppress these reasons
Background
On 1 October 2019, the Crown filed an application in both proceedings that sought an order that the reasons for sentencing the offender, on his then foreshadowed pleas of guilty that he entered when formally arraigned, be suppressed and not published or, alternatively, that those reasons be redacted so as to remove as much of the details of the offending as might “if published, cause harm or embarrassment to one or more of the complainants [victims]”. For the reasons I will give, that application was fundamentally misconceived.
Relevantly, the Crown relied upon ss 169 (in its form prior to 29 September 2018), 213 and 214 of the Criminal Procedure Act 2007 (NI), which provided:
169 Prohibition of publication of complainant’s identity
(1) A person commits an offence if the person publishes, in relation to a sexual offence proceeding––
(a) the complainant’s name; or
(b) protected identity information about the complainant; or
(c) a reference or allusion that discloses the complainant’s identity; or
(d) a reference or allusion from which the complainant’s identity might reasonably be inferred.
Penalty: 50 penalty units, imprisonment for 6 months or both.
(2) It is a defence to a prosecution for an offence against this section if the person establishes that the complainant consented to the publication before the publication happened.
(3)An offence against this section is a strict liability offence.
(4)In this section:
protected identity information means information about, or allowing someone to find out, the private, business or official address, email address or telephone number of a person.
213 Prohibition of publication of evidence etc
(1) If it appears to a court that—
(a) the publication of evidence, given or intended to be given, in a proceeding before the court, is likely to prejudice the administration of justice; or
(b) in the interests of the administration of justice, it is desirable that the name of a party to, or a witness, or intended witness, in a proceeding before the court be not published;
the court may, at any time during or after the hearing of the proceeding, make an order—
(c) forbidding the publication of the evidence or a specified part of the evidence, or of a report of the evidence, either absolutely or subject to any conditions that the court specifies or for any period that is specified; or
(d) forbidding the publication of the name of the party or witness.
(2) If a court makes an order under subsection (1), the court may, if it considers appropriate, also direct that people specified by the court, or everyone except people so specified, must remain outside the courtroom for the period that the court specifies.
214 Noncompliance with s 213 order
(1) A person who contravenes an order or direction under section 213 commits an offence.
Penalty: 50 penalty units, imprisonment for 6 months or both.
(2) For section 213 and this section, the publication of a reference or allusion to a party to, or a witness in, a proceeding is, if the reference or allusion is such as to disclose the identity of the party or witness, taken to be a publication of the name of the party or witness.
In the course of revising these reasons, I became aware that the version of s 169 of the Criminal Procedure Act (on which the Crown relied) had been repealed, with effect from 29 September 2018, by ss 2(1) and 4, and item 59E in Sch 3 in the Norfolk Island Legislation Amendment (Protecting Vulnerable People) Ordinance 2018 (NI), and the current, substituted, s 169 does not deal with any prohibition on publication. That Ordinance enacted s 167F which is an inexact analogue of the former s 169. Those amendments also commenced on 29 September 2018, more than 12 months before the sentencing hearing.
The new s 167F provides:
167F Sexual offence proceeding –– prohibition of publication of complainant’s identity
(1) A person commits an offence if the person publishes, in relation to a sexual offence proceeding:
(a) the complainant’s name; or
(b) protected identity information about the complainant; or
(c) a reference or allusion that discloses the complainant’s identity; or
(d) a reference or allusion from which the complainant’s identity might reasonably be worked out.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(2) It is a defence to a prosecution for an offence against this section if the person proves that the complainant consented to the publication before the publication happened.
Note:A defendant bears a legal burden in relation to the matter in this subsection, see section 59 of the Criminal Code 2007.
(3) In this section:
protected identity information means information about, or allowing someone to find out, the private, business or official address, email address or telephone number of a person.
As is apparent, s 167F(1) operates in a similar manner to the repealed s 169(1). For the purposes of these (revised) reasons, I will continue to refer to s 169(1) since it was the provision on which I was asked to, and did, decide this application.
The Crown also relied on ss 19(4) and (5) of the Supreme Court Act 1960 (NI), as supplying this Court with some power, either from the Court Procedure Rules 2006 (ACT) or the Federal Court of Australia Act 1976 (Cth), to make a suppression or a non‑publication order on the basis that the making of such an order was somehow a matter of this, or any Court’s, practice and procedure, as opposed to the substantive powers that this Court has to make such an order.
On 20 July 2018, after the offender was arrested, he was charged with multiple offences against victim 3 in the circumstances that I will describe shortly. The charges were preferred in the offender’s name and, at all times in every appearance he has made before the Court of Petty Sessions and this Court, his name has appeared in the court list without a pseudonym.
The Crown’s evidence
The Crown relied on five affidavits in support of its application, one by each of victim 1, victim 2, her mother, and the mother of victim 3, as well as by the informant, Senior Constable Sarah Jason.
Senior Constable Jason said that, based on her having lived and worked on Norfolk Island for the last almost two years, she was aware that most of its population of 1,700 were related to one or more of seven families. She said that victims 2 and 3 were members of at least one of those families, and that victim 1, having been born on the island and grown up here, had become a surrogate member of one of the families.
The informant noted that the island was about 35 square kilometres, had only one main road through the town, a supermarket, a school, an airport, a hospital or medical facility and one shopping area. She said that there was little opportunity for anyone who lived on Norfolk Island to keep to themselves, to avoid being seen or bumping into people that they knew or were related to, and that, because of those factors, “the rumour mill on the Island is strong and fast” and has the sobriquet ‘Dem Tull’, or ‘they tell’”. She said in paragraph 6 of her affidavit:
I have been made aware of numerous Dem Tull on the Island in regards to the charges against [the offender]. This Dem Tull has included members of the community approaching myself stating that they are aware of the charges against [the offender], they are aware of the extent of his offending against three victims, and they are also aware that he is due to return to the Island for his impending Court appearance in October. In the past few weeks and months, I personally have had members of the community ask if they are going to be allowed to sit in the Supreme Court so they can hear the judgements for themselves. When I have asked why they wish to be in Court, they have stated that they have a personal curiosity in the matter and they have no other reason to be in the Court or to hear the judgements.
The informant said that, in the past, there had been a very low rate of reporting on any matters to police, especially ones relating to child abuse and intra-family offences. She said that there was:
...generally a distrust of ‘mainland’ judicial processes and a lack of understanding around the legal system in general.
She asserted that the police and other organisations were working with the community to build trust and understanding and that she believed that if the reasons for sentence of the offender were published:
...there will be people on [the] Island that will be deterred from future reporting of offences for fear of their matters being made more public than just a Police investigation and Court attendance.
The informant, however, acknowledged that “most people on [the] Island know what matters are going before the Court”. She asserted it was most likely that if reasons for sentence were published, even if the victims’ names were not used:
…most people on [the] Island will know who the victims are and will know the details of what has occurred to them by a close family member.
She added that, if the details were published in the public domain:
...they have the possibility of being detrimental to the young victims, especially [victims 2 and 3] and their siblings…
Victim 1 gave evidence that she thought it was most important to protect the younger victims, a matter which I am satisfied she sincerely believed. She reiterated this concern when she read to the Court her eloquent and very personal victim impact statement yesterday. She said that there were not many people on the island who did not know that something of a sexual nature had happened to each of the three victims, but she said that her impression was that they did not know the extent of what had happened to victims 2 and 3. She said, sagely, that her own matter was historical and not widely discussed, but that she was aware that people on the island knew who were the victims, as well as the offender, and that persons had given evidence in police statements. She expressed the very human desire to shield victim 3, in particular, from other people ascertaining the details of the offending.
Victim 2’s mother said that she and victim 2’s father had decided to move, and had in fact moved, from Norfolk Island to continental Australia after people had become aware that something had occurred that adversely involved their daughter. She said that the family’s leaving the island had “really helped” victim 2 by removing her from gossip and people making nasty, judgmental, inappropriate and or bullying statements to her daughter. Victim 2’s mother also said that everyone knew everyone else on the island and were gossiping about what had happened to victim 2 on the supposition that they knew what had really happened when they actually did not.
Victim 2’s mother, understandably, was distressed at the adverse psychological and emotional impact of the offending on her young daughter, as well as the effect on her child of the malign behaviours of others towards victim 2. Victim 2’s mother did not want the details of the offending against her daughter to be published. That was a perfectly understandable protective reaction of a parent in the circumstances.
Victim 2 explained that before moving away from the island, she had become the subject of rumours and persons of all ages had directed inappropriate sexually oriented remarks to her in conversation. That is a wicked form of reaction to an innocent person who has suffered abuse through no fault of her own. Victim 2 said:
As this is a small community, where everyone knows everyone, avoiding conversation, conjecture and ridicule is virtually impossible.
She expressed the hope of being able to return to the island on which she had grown up but feared that, if details of the offender’s conduct were published, the earlier inappropriate actions of others towards her, that she had experienced in the past, would be exacerbated.
Victim 3’s mother expressed her concerns for her daughter, who just has turned 12. She also stated that the island was a small community where “everyone knows your business”. She feared that if the Court were open, or reasons for sentence were published, persons would “put two and two together and know exactly what happened” to victim 3. She also expressed a real parental concern to protect her young and vulnerable child from further harm. Victim 3’s mother observed that people had asserted that they “know what happened” to her daughter, but she did not think they were aware of the details, which she did not want to become common knowledge on the island.
She also acknowledged that, because of everyone on the island knowing everyone, “everybody knows [the name of victim 3]”, that the offender was in a particular relationship to members of victim 3’s family and that he had “touched her in a general sense”. Indeed, she said that about 20 children had told victim 3 that they knew that the offender was in jail because he had touched her.
Importantly, victim 3’s mother said that her daughter did not know the extent, or the full extent, of what had happened to her and, as a parent, she did not want her daughter, in the future, to be able to read about those unsavoury matters in reasons of the Court or hear about it from strangers. Victim 3’s mother reiterated that gossip was “a big thing” on the island. She explained that her daughter had experienced an emotional rollercoaster as a result of what had happened to date. She also said that, had she been aware that the reasons for sentence had to be published, she may not have provided as much and as many details to the police as she had in fact provided. That was because of the effect that she feared such publication of reasons by the Court would have on the whole family and, particularly, on victim 3.
The Crown’s submissions in support of its application for suppression
The Crown acknowledged that, despite the use of pseudonyms to refer to each of the victims such as “victim 1”, “victim 2” or “victim 3”, their identity was either already well known to many on the island or was easily established. The Crown argued that the purpose of its application was to protect each victim from further trauma and embarrassment by public dissemination of intimate and personal details of the offender’s criminal activity in respect of each victim.
The Crown asserted that the courts had a “traditional practice of expressing reasons for conclusions by finding the facts and expanding on the law” (emphasis added). It accepted, as the evidence made clear, that there is already a high level of public awareness of the proceeding on the island and that many residents had been heard to gossip about general aspects of the offending. The Crown also relied on material contained in victim 3’s victim impact statement about the detrimental effect on her of her friends’ comments based on what they said had happened to her.
The Crown submitted that any reasons for sentence would be likely to provide very specific details about the offending and the circumstances in which it occurred. It contended that s 169(1)(d) of the Criminal Procedure Act expressed the legislative purpose that any reference or allusion from which a complainant’s identity might reasonably be inferred should be prohibited from being published, even in the Court’s reasons, in relation to a sexual offence proceeding. It argued that this purpose was to protect the identity and the interests of a complainant in such a proceeding in a small community such as on the island. The Crown argued that, in all of the circumstances, each complainant’s identity might reasonably be inferred from any discussion of the offending in reasons for sentence.
It also relied on the Court’s powers under ss 213 and 214(2) of the Criminal Procedure Act to prohibit publication of all or a specific part of the evidence, if it appeared that such publication would be likely to prejudice the administration of justice or that it was desirable, in the interests of the administration of justice, that the name of a party to, or a witness or intended witness in, a proceeding (or any reference to, or allusion capable of disclosing, his or her identity) not be published.
The Crown also argued that the provisions of Pt VAA of the Federal Court of Australia Act could apply to this Court by force of s 19(5) of the Supreme Court Act because the publication of reasons for judgment or sentence was a matter of practice or procedure. The provisions of Pt VAA confer a statutory power on the Federal Court to make suppression or non‑publication orders including on the ground, under s 37AG(1)(d), that such an order is necessary to avoid causing undue stress or embarrassment to a party to, or a witness in, a criminal proceeding involving an offence of a sexual nature, including an act of indecency.
The Crown argued that, at common law, the principle of open justice may be displaced where to do so is necessary to secure the proper administration of justice or where, as McHugh JA said in John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476‑477, if its observance would frustrate some public interest for the protection of which Parliament had modified the principle of open justice. The Crown also contended that ss 169, 213 and 214 of the Criminal Procedure Act had modified the application of the principle of open justice by making primary the position of protecting the anonymity of the complainant in a sexual offence. And, it argued that such protection was the more necessary in respect of a complainant who was a minor.
The Crown submitted that no legal rule or principle required a court to publish its reasons for judgment in or by a particular medium. It referred to Matthews v R (No 2) [2013] NSWCCA 194 for the proposition that a court publishes its reasons by handing them down to the parties in open court and that any subsequent action to make those reasons available on the internet was administrative, not judicial. The Crown referred to the decision of the Full Court of the Federal Court in Commonwealth Director of Public Prosecutions v Christian [2019] FCAFC 5 that had affirmed the refusal of Wigney J, sitting as a judge of this Court in R v Christian (No 2) [2018] NFSC 5, not to take down from the internet reasons that his Honour had published already and that had appeared on the internet before the Crown had sought the non‑publication order. The Crown submitted that the circumstances in that matter were distinguishable on the facts here because, first, there was no evidence that the complainant had expressed any concern about the publication of his Honour’s reasons for sentence and, secondly, the Crown made its application after those reasons had been made public on the internet.
The Crown contended that, in these proceedings, the facts concerning the offender’s conduct were abhorrent, shocking and graphic and that victim 3 was still a vulnerable child. It argued that, in the future, she would be likely to be vulnerable to third parties, including those with whom she may wish to enter into an intimate relationship, being able to ascertain graphic and intensely private details of the sexual offences that the offender had perpetrated on her. The Crown contended that victim 3 would be likely to suffer from, or be susceptible to, ongoing psychological harm, which would be exacerbated if details of the offences were available in public reasons for sentence, especially since she is not now aware of the full circumstances of the offender’s conduct toward her, for reasons given in my reasons for sentence.
The Crown argued that, in the circumstances, it was vital for the Court to endeavour to keep the identity of the victims confidential even though, as it accepted, this would be difficult to achieve. However, it argued that the Court would endeavour to minimise any potential for further embarrassment to, or suffering of further trauma by, each of the three victims. It contended that this should be done by the making of the orders it sought.
The offender did not oppose the Crown’s application.
Consideration
The Sentencing Act 2007 (NI) in s 119(1) requires that, when the Court finds an offender guilty of a sexual offence (such as each of counts 1 to 26 in the second indictment and the sole count in the first indictment), it must record the conviction of the offender of that offence and impose a term of imprisonment, although it may suspend the sentence in whole or in part. Importantly, s 5(1) of the Sentencing Act provides that the only purposes for which the Court may impose a sentence (as s 119 requires to occur for at least 27 of the counts here) are one or more of the following: first, to punish the offender to the extent, or in a way, that is just in all the circumstances, secondly, to provide conditions in the Court’s orders that will help the offender to be rehabilitated, thirdly, to discourage not only the offender but others from committing the same or a similar offence, fourthly, to make it clear that, by the Court applying the law to the facts, the community does not approve of the conduct of the kind for which the offender bears that criminal responsibility and, fifthly, to protect the community from the offender.
The Sentencing Act requires the Court, in fixing a sentence, to have regard to many factors and to impose its sentences for more than one offence that often will involve it undertaking a complex and detailed evaluation in each case of the particular facts and the statutory requirements governing the offence and sentencing so as to achieve one or more of the statutory purposes that s 5(1) expresses. Those factors will vary in relevance and importance in any particular case, as may the significance of achieving one or more of the purposes that s 5(1) requires the Court to weigh and balance in arriving at its particular sentence.
One thing is clear: the Sentencing Act necessarily requires the Court to explain, in its reasons for sentence, to the community, and to the offender, how it has performed its statutory task, including what it has taken into account, how it has evaluated all the facts in accordance with the law and why the sentence it imposes will achieve one or more of the purposes that the Act specifies, including, where it imposes an actual or suspended term of imprisonment, how that sentence relates to one or more of those statutory purposes that the Act prescribes.
I reject the Crown’s application as fundamentally misconceived. The principle of open justice is not, as the Crown asserted, a matter of practice and procedure. Rather, the principle reflects the constitutional role of the judiciary as the third arm of government to exercise its judicial powers, transparently and publicly, unless either justice cannot be done in any other way, or if a law made by Parliament removes or modifies expressly or by necessary intendment the requirement to give reasons or to sit in public.
It is the role of courts, ordinarily, to sit and act in public and to apply and enforce the law in any community that has a democratic system of government such as exists in Australia, of which this Territory is part.
Both the Crown and the informant did not appear to appreciate that every member of the public has a right enforceable at common law to be present in open court for no better reason than he or she is a member of the community, provided that they do not interrupt the proceedings and there is no specific statutory power justifying the person’s exclusion or removal from the courtroom: Daubney v Cooper (1829) 10 B&C 237 at 240 per Bayley J giving the reasons of the Court of Kings Bench, applied in Hogan v Hinch (2011) 243 CLR 506 at 530 [20] per French CJ and Reg v Denbigh Justices, Ex parte Williams [1974] QB 759 at 764D-G per Lord Widgery CJ (Ashworth and Bristow JJ agreeing). Moreover, everyone has a common law right to publish a fair and accurate report of court proceedings, as McHugh JA held in Police Tribunal 5 NSWLR at 481E-F (Glass JA agreeing at 467E):
Without the publication of the reports of court proceedings, the public would be ignorant of the workings of the courts whose proceedings would inevitably become the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making. The publication of fair and accurate reports of court proceedings is therefore vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice. It is a right which can only be taken away by words of plain intendment.
There is no inherent or implied power in a superior court of record, such as this Court, or implied power in an inferior court, to close the court or to restrict the rights of, first, the public access to the courtroom, to see and hear what occurs in it and, secondly, to make a fair report to others of what occurred in open court: Scott v Scott [1913] AC 417, applied in Dickason v Dickason (1913) 17 CLR 50 at 51; Hogan 243 CLR at 530 [50] per French CJ, 552-553 [87]-[88] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Police Tribunal 5 NSWLR at 476G-477D and 481D-F. Barton ACJ, with whom Isaacs, Gavan Duffy, Powers and Rich JJ agreed, said in Dickason 17 CLR at 51.
...there is no inherent power in a Court of justice to exclude the public, inasmuch as one of the normal attributes of a Court is publicity, that is, the admission of the public to attend the proceedings. Power to exclude may be conferred expressly by law, but there is no law which empowers us to proceed otherwise than with the ordinary publicity of a Court of justice.
In R v Hamilton (1930) 30 SR (NSW) 277 at 278, the Court of Criminal Appeal of the Supreme Court of New South Wales held that a criminal trial had to be conducted in open court, except where justice could not otherwise be secured. There, Street CJ, with whom Ferguson and Halse Rogers JJ agreed, applied what Viscount Haldane LC had held in Scott v Scott [1913] AC at 438-439, saying:
All that the learned Chairman of Quarter Sessions tells us is that, in the interests of decency, and in order to prevent men and women of prurient tastes from being present in Court and absorbing the unpleasant details of a very unpleasant case, he ordered the gallery to be cleared. However praiseworthy his motive may have been, I do not think that he was justified, on the authorities as they stand, in the course which he took.
As was pointed out in Scott v. Scott by Lord Haldane, who was then Lord Chancellor, before the public can be excluded from the Court it must be shown that by nothing short of the exclusion of the public can justice be done. “The mere consideration, “he goes on to say, “that the evidence is of an unsavoury character is not enough any more than it would be in a criminal Court.” The case being dealt with there was a case in the matrimonial causes jurisdiction of the Court. Again he says, “A mere desire to consider feelings of delicacy or to exclude from publicity details which it would be desirable not to publish is not, I repeat, enough as the law now stands. I think that to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made.”
(bold emphasis added)
There are well recognised exceptions to the principle of open justice, including cases where, first, the subject matter of the litigation would be destroyed by its being made public (e.g. where the proceeding seeks to protect a trade secret or confidential information) and, secondly, the interests of wards of the court, children or persons incapable of conducting their own affairs are involved. However, at common law, mere embarrassment of a party, a witness or a third party, arising from (or from a fear of) having personal, including deeply sensitive, matters described in open court cannot justify closing the court, even in cases of divorce or sexual assault. In addition, even if a recognised exception to the principle of open justice would apply in a particular situation, if the subject matter would have been capable of being protected from public disclosure, it will lose that protection if the subject matter has already been disclosed. The House of Lords explained in Attorney‑General v Leveller Magazine Ltd [1979] AC 440, that once such matters were disclosed, became public knowledge or were made easy to discover, a court had no power to make or continue a suppression or non-publication orders unless statute otherwise provided: see too Police Tribunal 5 NSWLR at 480C-481B per McHugh JA.
However, in the last half century, Parliaments have broadened various courts’ powers to exclude the public and have made or created statutory limitations on, or powers of courts to limit, publicity of proceedings, such as can now be seen in ss 169, 213 and 214 of the Criminal Procedure Act. Another example of Parliamentary intervention is the special power under s 37AG(1)(d) of the Federal Court Act.
Importantly, the provisions of ss 169, 213 and 214 apply of their own force, not to the Court but to persons who seek to disseminate outside the courtroom information revealed in it, or elsewhere, that has a real tendency, at least, to identify a complainant in a sexual offence case: cf. Canadian Pacific Tobacco Company Ltd v Stapleton (1952) 86 CLR 1 at 6 per Dixon CJ.
As I observed in the course of argument, from the moment of the offender’s arrest on 20 July 2018, it was obvious that, unless, at that time, he (as an accused) were immediately given a pseudonym in the proceedings in the Court of Petty Sessions, the identity of each of his victims and, in particular, victim 3, would be readily ascertainable by anyone knowing of his familial relationship to each of them, as the evidence on which the Crown relied established was almost now common knowledge. After all, he was being charged with committing acts of indecency and sexual intercourse with a child under the age of 16 years in respect of whom he had a familial connection. Yet, remarkably, despite ss 169, 213 and 214 of the Criminal Procedure Act, let alone victim 3’s best interests, the police and prosecuting authorities abjectly and inexplicably failed to do anything to protect her identity from being disclosed in the first place, or from further disclosure, for over 14 months until the Crown made its belated application on 1 October 2019. This situation should not be repeated.
The emotional and psychological impact of the public revelation of the offender’s conduct is apparent in each of the victim impact statements of victims 1 and 2, to which I have given consideration. Nonetheless, I am not satisfied that this impact is of such a character that the exceptional inherent power of this Court to restrict publicity of the detail of the offending against each of those two young persons (leaving aside the operation of the statutory prohibitions against persons disclosing their identities as victims of the offending) can justify any restriction of the publication of details of the offending in relation to them: Dickason 17 CLR at 51 and Hamilton 30 SR (NSW) at 278.
However, I am of opinion that the position is different in respect of victim 3, who is now 12 years old. On the evidence and other material before me, victim 3 is still a vulnerable child. She has suffered, and continues to suffer, significantly from so much of the offending as she is conscious occurred to her. Critically, from about early February 2018 until his apprehension on 20 July 2018, the offender drugged victim 3 on several occasions during the period of his offending. He used a powerful sedative, zopiclone. That is a prescription medicine that had been prescribed for treatment of his wife. That medicine is not used to treat children, such as victim 3, who, at the time of the offending, was 10 years old.
In my opinion, the present and future welfare of victim 3, as a child, and in later life, will be placed at an unacceptable risk of irreparable harm if the full details of the prisoner’s offending and his identity were described chapter and verse in the reasons for sentence.
A judge or court, ordinarily, has a duty to give reasons for a final or dispositive decision in proceedings. As Gaudron, Gummow, Hayne and Callinan JJ said in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 at 84 [26], the ordinary rule is that reasons should be given. Their Honours there held that an earlier practice of the Supreme Court of Victoria not to give reasons for refusing to leave to appeal from a decision of a tribunal was wrong in law. They said:
The disappointed [party] (and any court asked to review the refusal) must, however, be able to know from the reasons given by the primary judge why the judge reached the decision to refuse leave.
The imposition of sentence on an offender finally disposes of proceedings on an indictment. The failure of a court to give reasons on a material issue of fact or law is itself an error of law: Fleming v The Queen (1998) 197 CLR 250 at 260 [22] per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ. That is because the absence of reasons makes it impossible for an appellate court to determine whether or not the dispositive order, judgment or sentence, was based on an error of fact or law: Fox v Percy (2003) 214 CLR 118 at 126 [24] per Gleeson CJ, Gummow and Kirby JJ.
One of the Court’s most important tasks in imposing a sentence is to explain to the guilty party, his or her victim and to the community, why the Court has exercised its powers to deprive, as I must do in this proceeding, a person of his or her liberty for a period of the sentence. The Sentencing Act requires transparency and explication, not silence, as s 5(1) makes clear.
However, in order to protect the interests of victim 3 as a paramount consideration, I required that the offender be arraigned by having a copy of the full version of the second indictment before him and for him to be asked to plead to counts 9 to 27 inclusive, without the graphic particulars of each count being read out aloud in open Court. Instead, I required in arraigning him that those details be instead referred to by my associate interpolating the expression “the act particularised in the” numbered count of the indictment when reading that out in Court.
I also admitted, as exhibit A, the statement of facts in respect of the second indictment, which were agreed. I indicated to the parties that I proposed to refer in my reasons for sentence to the relevant part of that statement for a more explicit description and explanation than I will give here in respect of the offending in counts 9 to 27. In that way, the offender and any court on appeal, if there be any appeal, will know what are those facts that I have taken into account, but are not set out in terms or other summary in those reasons.
Conclusion
For these reasons, I am of opinion that this course and the use of the pseudonym to identify the offender, to which the parties raised no objection or demur, will safeguard and protect the best interests of victim 3 while amounting to the minimum derogation from the principle of open justice that I consider possible in the circumstances. I otherwise reject the Crown’s application.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 15 November 2019
11
6