Tsamis v Victoria (No 3)

[2019] VSC 507

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2014 06898

MARTHA TSAMIS	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2019
DATE OF JUDGMENT:	5 August 2019
CASE MAY BE CITED AS:	Tsamis v Victoria (No 3)
MEDIUM NEUTRAL CITATION:	[2019] VSC 507

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PRACTICE AND PROCEDURE — pseudonym order — application by defendant in respect of identification of particular witnesses — discretionary considerations.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Sowden with Mr H Kirimof	Mr Gary Prince
For the Defendant	Mr P Hayes QC with Ms R B Sion and Mr J C Hooper	Russell Kennedy

HIS HONOUR:

1. The plaintiff alleges that the defendant published a number of defamatory imputations concerning her in two publication. For present purposes I record that some of the imputation in relation to one of those publications were that the plaintiff:

(a)   was operating Inflation in a manner that resulted in drug dealing in and around the venue;

(b)   was operating Inflation as a ‘honey pot’ (meaning a source of attraction) for drug dealers;

(c)    had allowed minors to enter the venue in breach of the provisions of the Liquor Control Reform Act 1998 (Vic);

(d)  had operated Inflation in a way that jeopardized her patron’s health and resulted in many hospital admissions; and

(e)   managed the venue in a manner that was conducive to drug trafficking, drunkenness and violence.

1. One of the defendant’s grounds of defence is that these defamatory meanings were true in substance and in fact (common law truth) or were substantially true (Defamation Act 2005 (Vic) s 25 truth defence).

1. In support of these defences the defendant has subpoenaed a number of persons who had dealings with police either at or in the vicinity of the Inflation night club during the relevant period. These persons were, or claimed to be, patrons of the night club at Cloud 9 events.

1. The defendant seeks pseudonym orders in respect of these witnesses. In substance the defendant seeks an order that each witness not be identified in open court, submitting that this objective is most effectively achieved without any incursion on the principle of open justice by the use of a pseudonym. The defendant also seeks orders that some documents that identified these persons that have been filed with the court be treated as confidential.

1. The plaintiff did not oppose this application.

1. I acknowledge the strong presumption in favour of open justice and free communication of information in the administration of justice. This is a foundational principle of the rule of law. That said, there are circumstances where the administration of justice requires qualification of the open justice principle.

1. The exercise of the court’s inherent jurisdiction is qualified by the provisions of the Open Courts Act2013 (Vic) (‘Act’). Of particular relevance is s 7(d) that provides that the Act does not limit to or otherwise affect making an order that:

(i)conceals the identify of a person by restricting the way the person is referred to in open court;

(ii)restricts the way an event or thing may be referred to in an open court;

(iii)prohibits or restricts access to a court or tribunal file.

Accordingly, although a pseudonym order should only be made where it is necessary to do so to prevent prejudice to the administration of justice, the court is not required to invoke the process specified in the Act before exercising this jurisdiction.

1. Each of these witnesses will be asked to give evidence that may have a tendency to incriminate them in relation to minor drug possession. Mostly, but not in all cases, no criminal charges were laid. The relevant events occurred more than 6 years ago. These witnesses are now young adults, some of whom were under 18 at the relevant time. All have been compelled to give evidence by subpoena with an assurance from the defendant that none of them will face any criminal charges as a result of any evidence that they give at the trial.

1. The defendant does not seek a suppression order and other than a pseudonym order, there are other procedural responses that might be adopted to avoid disclosing the names and address of these witnesses in open court during the running of the trial.

1. However, as the trial is to be conducted before a jury I am satisfied that the most convenient and expeditious approach is to grant a pseudonym order. The jurors will know the name of each witness giving evidence under a pseudonym.

1. Importantly, there will be no restriction on the public nature of the proceeding and the ability of the media to report on the proceeding will only be restricted as to the identity of the individual witnesses given a pseudonym. In this respect pseudonym orders differ from other restrictions on open justice such as suppression and closed court orders. That distinction is reserved by s 7(d)(i) of the Act, as noted above.

1. Having regard to the consequences that I have referred to, I am satisfied that the public interest in the open administration of justice will not be constrained by this process. I am also satisfied that there is insufficient public interest in the identification of the personal details of these witnesses. Having regard to their age at the time, the circumstances in which relevant conduct occurred and the purposes for which the defendant seeks to adduce evidence from them, absent a pseudonym order, it is possible that the quality of the evidence available to the defendant in its attempt to establish a justification defence may be affected by extraneous considerations such embarrassment, unnecessary and salacious publicity, or collateral re‑agitation of conduct long forgotten that was dealt with when it occurred. Such concerns may compromise the quality of the evidence being presented to the jury by these witnesses.

1. I will order that each of the witnesses must be identified in open court by the use of the pseudonym corresponding to their name on the confidential schedule to my order of 5 August 2019 and that they not be referred to in open court by their true names. Adopting this process places the responsibility for maintaining confidentiality about the identity of these witnesses upon the parties and the witnesses themselves, leaving the media free from any restriction on publishing what they learn in open court before the jury about the circumstances of the trial.