Saffron, A.G. v Commissioner of Taxation

[1992] FCA 569

Re: ABRAHAM GILBERT SAFFRON
And: COMMISSIONER OF TAXATION
Nos. N G2021-2026 of 1987
FED No. 569
Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Evidence - application under s.50 of Federal Court of Australia Act 1976 for order forbidding publication of name of witness - factors to be taken into account in balancing competing interests.

HEARING

SYDNEY

#DATE 24:7:1992

Counsel and Solicitors for the Applicant: Mr A.J. Sullivan QC with

Mr F.P. Carnovale, instructed by Walker and Raphael

Counsel and Solicitors for the Respondent: Mr G.K.Downes QC with Mr S. Gibb

instructed by Australian Government Solicitor

Counsel and Solicitor for the witness: Mr P. Pearsall instructed by

Ms Duchen

ORDER

THE COURT ORDERS:

1. The witness be referred to as Bookkeeper X until further order.

2. That reference to the name not be published.

3. That transcript of the name be kept confidential until further

order.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

An application has been made on behalf of a witness, ("the witness") for an order under s.50 of the Federal Court of Australia Act 1976 forbidding the publication of her name. Section 50 provides, as follows:

"The court may, at any time, during or after the hearing of a proceeding in the court, make such order forbidding or restricting the publication of particular evidence or the name of a party or witness as appears to the court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth."

1. It is common ground that there is a power to make the order sought. What is now in dispute is whether the power ought to be exercised for the reasons generally discussed in the authorities, for instance, Australian Broadcasting Commission v Parish (1980) 29 ALR 228; In re A prosecution under the Customs Act (1980) 24 SASR 453; B v Tuncks (1980) 24 SASR 532; National Companies and Securities Commission v Banker's Trust Australia Limited (1989) 91 ALR at 332-336; Martin v M (1991) 54 A Crim R 173, a decision of the South Australian Supreme Court, sitting as a Full Court, Re F, another decision of that court reported at (1989) 51 SASR 141; R v Noud; Ex parte McNamara (1991) 2 Qd R 86; R v Savvas (1989) 43 A Crim R 331, a decision of Hunt J in the New South Wales Supreme Court.

2. The authorities establish that it is necessary for the Court to balance the competing interests involved. The general background to the application is as follows. In the principal proceedings the taxpayer is appealing from a number of assessments in the circumstances described in the judgment of the members of the Full Court of this Court in Saffron v Federal Commissioner of Taxation (1991) 102 ALR 19. Reference is there made to the report of the judgment of the Court of Criminal Appeal dismissing an appeal by Mr Saffron against his conviction on a charge that he conspired to defraud the Commonwealth (see Saffron v The Queen (1988) 17 NSWLR 395). As the judgments in the Full Court show, the assessments now challenged cover the same ground in essential respects as the criminal charge in which it was alleged that false accounting records were kept. The role of the witness was described at pages 405-6 of the report.

3. The witness has given a written statement of her evidence which has not yet been tendered but its tender has been foreshadowed. I have also been informed that the witness has been granted by the Commonwealth immunity from prosecution. In support of her application, the witness relies, in the first instance, upon a fear that her prospects of obtaining employment would be jeopardised. The position is that, regrettably, the witness has been unemployed for about 12 months and is at the moment seeking employment. However, as I have already indicated to counsel for the witness in the course of the argument, I am not persuaded that there is any real prospect of prejudice to the witness in this respect. As has been noted, regrettable though it may be, the fact is that the witness has been unemployed for the last 12 months and her prospects of obtaining employment in the immediate or even short term cannot be optimistically viewed.

4. More important, I think that the risk that a potential employer would notice her name, which is a relatively common one, and link it with her application for employment is a relatively slight risk. I do not think that it would be right to say that any serious prejudice would be sustained in this particular connection if her name were published for the purposes of these proceedings.

5. On behalf of the applicant, however, other matters are relied upon. In her evidence, in answer to questions from her counsel, the witness gave the following testimony:
   

"I think you were about to indicate, or you were indicating, some family concern - or concern from members of your family - and is it the - you have a mother, I think an elderly mother?---I've got a mother, a mother-in-law. I've got a son, who's involved in - who's now out in the workforce. I've got relatives that are involved in business that it would be - I'd just prefer it not known that I was involved at the moment again because I have already been through it once under those - and prior to that to my knowledge it wasn't at the time - it was suppressed, or it was asked to be suppressed and I was - I'm hoping that this time it can be suppressed again. I just don't particularly want to be associated at the moment with the case.

Well, do you say to the - - -?---Or to be known to the public that I'm associated, it's - - -

Are you concerned about your relationship with members of your family or are you concerned about how members of your family may be affected by publication that you are involved in the matter?---I'm concerned - - -I mean, involved with Mr Saffron over the years?---I'm concerned about the family. Just publication of it. I know from prior evidence when we were in business ourselves that round about ways people knew that I was involved with it and questions came up about it with my husband's business associates."

1. The articulation of that evidence was not always clear but I am satisfied that that arose at least in part because in giving her evidence - and that was evidence given in chief - and, in particular, in giving her evidence in cross-examination, the witness was visibly distressed.

2. In my opinion the witness was visibly distressed because of the prospect which she held that relatives, and I would infer other persons who knew her, would associate her with a suggestion that false accounts had been kept. Having seen her in the witness box I have concluded that if this were to happen she would suffer a real prejudice. She would, I think, be quite distressed. On the other hand, as senior counsel for Mr Saffron has pointed out in opposing the present application, it is right also for the Court to take into account the general public interest in the open administration of justice.

3. In balancing these respective interests I think that particular weight should be given to the limited nature of the application. No application is made beyond that of her identification as a witness. I think also it is right to bear in mind in this connection that as a witness she will have no interest in the outcome of this appeal. The witness was, I thought, extremely upset at the prospect of being publicly identified. I believe that this was a genuine fear on her part. I propose to give considerable weight to the real prospect that if named she would be seriously distressed emotionally.

4. On balance I have come to the view, with some hesitation, that I should accede to the application, and I propose to order accordingly.