West Australian Newspapers Ltd v The State of Western Australia

[2010] WASCA 10

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WEST AUSTRALIAN NEWSPAPERS LTD -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 10

CORAM:   OWEN JA

WHEELER JA
BUSS JA

HEARD:   3 NOVEMBER 2009

DELIVERED          :   22 JANUARY 2010

FILE NO/S:   CACV 74 of 2009

BETWEEN:   WEST AUSTRALIAN NEWSPAPERS LTD

First Appellant

CHANNEL SEVEN PERTH PTY LTD
Second Appellant

AND

THE STATE OF WESTERN AUSTRALIA
First Respondent

GERARDUS GERRIT HEIJNE
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :McKECHNIE J

Citation  :THE STATE OF WESTERN AUSTRALIA -v- HEIJNE [2009] WASC 162

File No  :INS 17 of 2008

Catchwords:

Administration of justice - Non-publication order - Order suppressing name of a witness in a criminal trial - Evidence otherwise able to be published - Whether infringement of open justice principle- Turns on own facts

Legislation:

Criminal Procedure Act 2004 (WA), s 171(4)(b)

Result:

Application for an extension of time within which to appeal granted
Application for leave to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

First Appellant               :     Mr J D MacLaurin

Second Appellant          :     Mr J D MacLaurin

First Respondent           :     Mr B Fiannaca SC

Second Respondent      :     No appearance

Solicitors:

First Appellant               :     Edwards Wallace

Second Appellant          :     Edwards Wallace

First Respondent           :     Director of Public Prosecutions (WA)

Second Respondent      :     No appearance

Case(s) referred to in judgment(s):

Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221

OWEN JA: 

Introduction

1. This is an appeal against a non‑publication order made by McKechnie J which prevented the publication outside the courtroom of the name or identity of a male prosecution witness in a wilful murder trial.  The evidence which was to be given by the witness concerned his relationship with the accused shortly before the offence was alleged to have been committed.

2. The appellants also apply for an extension of time within which to appeal and leave to appeal.

Proceedings against Heijne

1. The non‑publication order the subject of this appeal arose out of criminal proceedings against Gerardus Heijne in the Supreme Court.  In order to understand the circumstances in which the non-publication order was made, it is necessary to provide some detail about those proceedings.

2. Heijne was charged on indictment that on 3 January 2007 at East Perth he wilfully murdered, alternatively murdered, Frank Cianciosi.  Heijne and Cianciosi had been long term partners for about 25 years.  They shared the house in East Perth in which Cianciosi died.  They were also in a franchise business together.

3. Heijne was tried in the Supreme Court before McKechnie J and a jury between 18 May 2009 and 8 June 2009.  The prosecution case was that in the months leading up to Cianciosi's death, Heijne had formed a relationship with a young man who worked at the business, first at a suburban store and later at the head office.  At the time, the young man was 18 or 19 years old while Heijne was in his early 40s.  While the relationship was not necessarily sexual, it was romantic and passionate.  Heijne became obsessed with the young man and his relationship with Cianciosi deteriorated.  The young man was to be called as a prosecution witness.

4. The prosecution contended that on the night of Cianciosi's death, he and Heijne had argued at their house.  Heijne became very angry and strangled Cianciosi to death.  The prosecution opened the case on the basis that the next morning Heijne had confessed to the young man that he had strangled the deceased.

5. The defence did not dispute that there was a physical altercation between Heijne and Cianciosi immediately before the latter's death.  It denied, however, that Heijne had wilfully murdered or murdered Cianciosi.  The defence was advanced on several alternatives:  lack of intent either to kill or to do grievous bodily harm; lack of causation; self defence; and provocation.

6. On 8 June 2009 the jury convicted Heijne of murder.  On 9 June 2009 he was sentenced to a term of life imprisonment with a minimum non‑parole period of 13 years and 6 months.  Heijne has subsequently lodged an appeal against his conviction but that has no relevance to this appeal.

Application for a non‑publication order

1. Heijne's trial had been due to commence on 11 May 2009 but for reasons that are not relevant for present purposes the starting date was deferred until 18 May 2009.  On 6 May 2009 the State filed an application seeking an order prohibiting the publication outside the courtroom of the identity of two persons whom the State intended to call as witnesses.  One of them was the young man (the witness).  The application in respect of the other person failed and I do not need to mention it again.

2. The application was heard by McKechnie J on 11 May 2009.  The application was opposed by counsel for Heijne.  Leave was granted to counsel for media organisations to appear and make submissions.

3. The application was said to be brought pursuant to s 171(4)(b) of the Criminal Procedure Act 2004 (WA), which reads, relevantly:

   171.Court to be open, publicly

   …

   (2)Subject to this section, all proceedings in a court are to be in open court and the courtroom where the court sits is to be open to the public unless this Act or the rules of court or another written law provides otherwise.

   …

   (4)On an application by a party to the case, or on its own initiative, a court may, if satisfied it is in the interests of justice to do so —

   …

   (b)make an order that prohibits the publication outside the courtroom of the whole of the proceedings, or a part or particular of them specified by the court…

4. The basis for the application was, in substance, that if the name or identity of the witness was published, his mental health would suffer and, due to the revelations of his past relationship experience, he would face difficulties within his family and his community.

Affidavit of the witness

1. When the application was filed it was supported by an affidavit of an employee of the Office of the Director of Public Prosecutions to which was annexed a letter from the young man detailing his concerns about the disclosure of his identity.  This was the state of the evidence at the time the application was heard.  His Honour noted that the material was not in admissible form and ordered that an affidavit be sworn by the young man giving direct evidence of the matters he had raised in his letter.  The affidavit was sworn on 11 May 2009.  The affidavit was delivered to the court on 13 May 2009.  It is not clear when it was served on the appellants' solicitors but it must have been on one of 13 May, 14 May or 15 May 2009.  I note that 15 May 2009 was a Friday and that the trial was due to commence on the following Monday (18 May 2009).

2. The witness deposed that from the age of 15 he had suffered from clinical depression.  He was first diagnosed with depression at age 15 when he attempted suicide.  Since then he had undergone intensive treatment, including admission as an inpatient to psychiatric facilities.  He had also undergone significant treatment for drug and alcohol abuse.

3. The witness deposed that since Heijne had been charged with Cianciosi's murder and he had been required to detail his relationship with the two men, he had suffered mood swings, hallucinations and serious depression.  He had often been bedridden for days at a time and had experienced severe low moods, including strong thoughts of suicide.

4. It has not been possible to outline comprehensively the witness' condition and its treatment, as the detail of those matters may identify him within his community.  It is important to note, however, that the feelings and thoughts to which the witness deposed were against a background of a previous suicide attempt and lengthy treatment of his medical condition.

5. The witness deposed that he lived with his family in a small community outside Perth.  Members of the witness' family were well‑known and respected in the community.  The witness said that he was concerned about the harm his family would suffer if they and the community became aware of his relationship with Heijne.

6. The witness deposed that he had obtained a job in a local business.  Through his employment there he had gained friends and acquaintances.  He had achieved a level of respect in the community and enjoyed a reputation as hardworking, respectful, helpful and kind.  If people within his community were to find out about his past relationship, all the work that he had done to build a new life and new friends would be undone.

7. The witness also deposed that he was in a serious relationship with a female.  He said:

   [S]he is the only thing that has stopped my suicidal thoughts and eased my depression.  A future with her provides me with a reason for hope…  It would literally kill me for anything printed and viewed by her about the content of my involvement in this case to ruin what is the most important thing in my life at the moment.

8. He said that without a prohibition on the publication of his name, his mental state would suffer and the new life which he had sought to build would be lost.

Decision of the primary judge

1. On 18 May 2009 McKechnie J granted the application and ordered that the witness' name and identity not be published outside the courtroom.  He indicated that he would publish reasons at a later date.

2. On 16 June 2009 those reasons were published.  The primary judge began by setting out the principles to be applied when determining an application to restrict the publication of court proceedings.  His Honour noted that the general rule is that courts must conduct their proceedings in public and there should be no restriction on the reporting or discussion of those proceedings.  Information may not be withheld from the public merely to save a witness from loss of privacy, embarrassment, distress, financial harm or other collateral disadvantage.  There are circumstances, however, when it is appropriate to restrict the publication of court proceedings when it is necessary for the proper administration of justice.  This may occur when, without restrictions on publication, justice could not be done because of the grave difficulty of securing the testimony of a witness with a 'secret'.

3. The primary judge then referred to the material contained in the witness' affidavit.  He noted that the witness had suffered mental illness in the past and was trying to build a new life in a small community.  His Honour observed that the witness was reluctant to give evidence if that meant it might cause his past to be revealed, but remarked that in a criminal trial a witness under summons has no choice but to come and give evidence.  According to his Honour (at [21]), an order made suppressing the identity of a witness 'is not made to cater for the private wishes of the witness but for the public administration of justice'.

4. The primary judge commented on the limited nature of the suppression order sought, saying [22]:

   The court will be open.  The identity of the witness will not be suppressed from the jury.  All the evidence of the witness will be available for fair and accurate reporting by members of the media who are free to attend the case.  The application seeks only the suppression of the identity of the witness.

5. His Honour continued [22]:

   The witness was and is a young man who has deposed to the likely effect on his mental health if his identity were to be published.  He is a person (to use Lord Widgery's term) 'with a secret'.  Mindful of the general principle as I have stated it above, I see no public interest in the publication of the witness's identity.  On the contrary, I see a strong public interest in the suppression of the witness's identity.  The interests of justice do not exclude completely the private interests of a witness especially where that witness's mental health may be significantly adversely affected.  It is important for the administration of justice that a witness is concentrating on the giving of evidence truthfully and actively rather than on the widespread dissemination of their private life.  It is unlikely that publication of the witness's name will lead to further material being brought forward having regard to the evidence presently available, and taking account of lines of defence that would appear to be open.

6. Finally, his Honour commented on the significance of the fact that the relationship which the witness did not want revealed was of a particular character, saying [23]:

   Although Australia is a diverse society, many members of society still stigmatise gay relationships.  It is in the interests of the administration of justice that where a witness with a mental history as recounted gives central evidence in relation to such a relationship that they may do so without the burden of concern about publication of their relations.

7. The primary judge then made the order prohibiting the publication outside the courtroom of the witness' name or identity.

Grounds of appeal

1. There were originally three grounds of appeal.  The first ground was abandoned.  The remaining grounds are as follows:

   2.The Court below erred in law in finding that it was in the interests of justice that there be a non-publication order on the name and identity of the witness ordered prior to the commencement of the trial upon the basis that the witness had a 'mental history', had in the past engaged in conduct that might be stigmatised by members of the Australian society, and ought to be able to give evidence in the trial without the 'burden of concern' regarding publication of such past relationships.

   Further Particulars

   (a)the Court below failed to properly apply or place sufficient weight upon the relevant principles of open justice and failed to find that the 'burden of concern' about giving evidence which might reveal a past relationship did not justify, as being in the interests of justice, the making of a non-publication order; and

   (b)the Court below should have found that the basis for the application was within the category of seeking to avoid an invasion of privacy, embarrassment or damage to reputation, which is insufficient to justify a non-publication order.

   3.The Court below erred in law [or], alternatively, as a mixed question of fact and law, in finding that the evidence of the witness himself provided a proper basis upon which to be satisfied that it was in the interests of justice that there be an order prohibiting publication outside the Court of the name and identity of the witness.

   Further particulars

   (a)The affidavit evidence did not provide cogent or compelling evidence to support the ultimate basis found for the making of the non-publication order, nor of any proper and exceptional basis for the making of the non-publication order and the rationale for making the non-publication [order] was based upon speculation; and

   (b)the affidavit evidence of the witness himself, as opposed to independent medical evidence, was not a proper basis upon which to draw any conclusions regarding the likely effect of giving evidence without a suppression order upon the mental health of the witness.

Ground 2 - whether the non-publication order was in the interests of justice

1. In this ground the appellants allege that McKechnie J erred in law in finding that it was in the interests of justice to make the non‑publication order.  They say that his Honour failed to place sufficient weight on the principle of open justice.  They also say that the harm which the non‑publication order was designed to prevent was within the same category of harm as embarrassment, distress or loss of privacy, and hence was not sufficient to justify such an order.

2. The principle of open justice has been dealt with extensively by this court, most recently in Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221. I do not intend to repeat what has been said in those cases. Suffice it to say, the court has emphasised that while exceptions to the principle of open justice are narrowly confined, the principle is not absolute and nor does it represent an inflexible dictate. The principle of open justice is a significant element within the proper functioning of the justice system. It promotes veracity of testimony by encouraging attention among those involved in a case to the seriousness of the judicial process. Publicity may cause (or encourage) others with relevant information to come forward. It increases the community's appreciation of the methods of government and confidence in judicial remedies. It also ensures that the fairness, integrity and efficiency of the courts, and its administrators, are subject to public scrutiny. Nevertheless, open justice is not an end in itself; it is a means of bringing about the benefits I have just mentioned which flow from informing the community about the workings of the court. Any challenge to a decision on the basis that the decision intrudes upon the principle of open justice must be assessed in light of the principle's rationale.

3. In the present case, the primary judge had to decide whether it was in the interests of justice to make a non-publication order pursuant to s 171(4)(b) of the Act. The 'interests of justice' is a broad concept and accommodates a wide range of considerations. It should not exclude from consideration, when appropriate and with significant limitations, the personal interests of those involved in judicial proceedings. The phrase should not be limited, as the appellants suggested, to mean 'in the interests of the administration of justice'. The phrase means exactly what it says. It must be given a meaning which properly reflects the breadth of the matters which may be taken into account when considering whether to make an order.

4. When the phrase 'in the interests of justice' is understood in this way, it becomes apparent that the gravamen of the appellants' complaint in this ground is that the primary judge simply got it wrong.  In substance, they attack the primary judge's conclusion that, on balance, the matters deposed in the witness' affidavit which supported the making of the order outweighed the more general consideration of open justice which militated against making such an order.  Whether the primary judge erred in reaching that conclusion depends on two things.  The first is the extent to which the circumstances revealed in the witness' affidavit and otherwise should be characterised as exceptional circumstances.  The second is the extent to which the non‑publication order should be characterised as involving a diminution of the application of the principle of open justice.

5. In my view, at least some of the matters deposed in the witness' affidavit could properly be regarded as exceptional.  The witness had suffered from mental illness for a number of years.  He had a history of drug abuse which was closely tied to his mental health problems.  He had been treated in three different institutions.  He had contemplated suicide and attempted self‑harm.  His involvement in the case had led to mood swings, hallucinations and serious depression.  It would, in my view, have been open to the primary judge to regard those matters as exceptional.  Other matters, such as the witness' present circumstances and those of his family, would not, on their own, have been regarded as exceptional.  But they have to be seen in the context of the evidence about his mental state.  The witness was trying to make a new life for himself in a small community and that fresh start could be jeopardised if his involvement with Heijne became known.  Similarly, revelations of the witness' relationship with Heijne could derail his new relationship with a girl which he describes as the only thing which eases his depression and suicidal thoughts and which provides him with a reason for hope.

1. In my view, the matters deposed in the affidavit indicate that the witness would suffer harm beyond mere embarrassment, distress, loss of privacy or shame if his identity were revealed.  This is different from instances where, for example, a person would suffer embarrassment if his or her infidelity or other sexual indiscretions were revealed.  Here, the witness' loss goes beyond embarrassment.  On the evidence it was open to his Honour to conclude that there was a real risk that the witness' mental health could be seriously compromised by the publication of his identity.  Such a decline in his mental health could result in a relapse into drug abuse or self‑harm.

2. On the other hand, the nature of the restrictions imposed do not represent a major departure from the requirements of open justice.  The witness' name was used in court and before the jury.  He gave evidence in open court.  The media were free to report details of the evidence the witness gave (and all the other evidence led in the trial) and the witness' relationship with Heijne.  The only departure from open justice was that the media could not publish the witness' name or identity.  In my opinion, that should not materially detract from the media's ability to publish a fair and accurate report of the court's proceedings.  This is not a case in which the media's capacity to inform the public about a trial was significantly hampered because, for example, the evidence of a witness was suppressed or parts of the trial were held in camera or where it might have been difficult to communicate the true import of the evidence without identifying the witness.  The name of the witness had no material bearing on any of the evidence led in the case or the narrative of the case.  No one suggested that had the witness been named, others might have come forward with additional information.

3. In my opinion, the appellants have not demonstrated that the primary judge erred in finding that it was in the interests of justice to make the non‑publication order.  His Honour had to weigh the principle of open justice against considerations of the witness' mental wellbeing.  His Honour was of the view that granting a non‑publication order would interfere with open justice only to a minimal degree, but would protect the witness, a young man with a history of serious mental illness, from significant harm.  He concluded that it was therefore in the interests of justice to make the order sought by the prosecution.  In my view it was open to his Honour to do so.  What his Honour said at [23] has to be seen in this light.  The question is not whether details of a person's sexual orientation is to be protected but rather whether there is a prospect of harm above and beyond mere embarrassment that might flow from publication.  This will, as is always the case, depend on the evidence and the individual circumstances.

4. This ground of appeal fails.

Ground 3 ‑ the evidence supporting the application

1. In this ground the appellants allege that the affidavit of the witness did not provide a sufficient basis for the making of the non‑publication order.  The appellants complain that the matters deposed in the affidavit do not provide cogent or compelling evidence in support of the order.  They also say that the evidence of the witness himself, as opposed to evidence of an independent medical expert, was not capable of establishing that the witness would suffer mental harm if his identity were published.

2. The primary judge had the task of determining whether the witness' circumstances were so exceptional as to justify a departure from the principle of open justice.  The question is whether the primary judge was entitled to rely on an affidavit sworn by the witness setting out his history of mental illness and drug abuse, his deterioration in wellbeing in response to becoming involved in the case, his family and social circumstances, and his fears about the consequences if his identity were revealed.  With hindsight it might have been better had evidence been led from an independent medical expert as to the likely harm that would be suffered if the witness' identity were published.  But that was not done and the primary judge had to deal with the evidence as it had been presented. 

3. The non‑publication order was made at the commencement of the trial on 18 May 2009.  At the hearing on 11 May 2009 the main argument advanced by the appellants was that 'the matters advanced … fall squarely within the category [in cited authorities] of simply embarrassment, even damage to reputation, invasions of privacy which have never been sufficient to overcome the starting point and the principle of open justice'.  Counsel went on to submit that there was no cogent or compelling evidence that would set this case apart.  There had been a suggestion by counsel for Heijne that there was no evidence in admissible form.  His Honour agreed and no one demurred when he directed that an affidavit be filed, obviously to cure problems related to admissibility.  The attack mounted against the application was not so much against the factual accuracy of the young man's testimony but rather as to whether, in substance, it went beyond mere embarrassment.

4. I accept that there was only a short period of time between the date of service of the affidavit and the pronouncement of the non‑publication order.  But at no time either before, during or immediately after the finalisation of the trial or before the publication of the reasons was his Honour asked to re‑open the matter.  The appellants did not make an application to cross‑examine the witness.  They did not object to the admissibility of any passages in his affidavit.   They did not make an application for an order that the witness submit to independent medical examination.  Nor did they put on any evidence themselves in opposition to the application.  While the witness was, or could have been, compelled to give evidence it is reasonable to infer that he did so in the knowledge that the non‑publication order was in place.

5. In my view, if the import of the challenge is that there was no evidence in admissible form to support the non‑publication order, it is not now open to raise that matter.  If, as seems more likely the case, the challenge is based on the probative value (or lack thereof) of the material in the appellant's affidavit the question is a different one.  In fact it raises two questions.  First, whether the material, if accepted, was capable of supporting a conclusion that it was in the interests of justice to make a non‑publication order.  Secondly, whether the material was such that it could be afforded sufficient weight to make it capable of acceptance for that purpose.  The first of those questions is answered by the discussion concerning ground 2.  As to the second question, in my view it was open to his Honour to accept the material in the affidavit and, if he thought it was of sufficient probative value (which he obviously did), to base his conclusions on it.

6. Ground 3 has not been made out.  I appreciate the difficulties in which the parties would have found themselves in the short period between 13 May (or 15 May) and 18 May 2009 but the fact is that when the orders were pronounced the evidence stood in the form in which it had been submitted.  And nothing I have said should be taken as advocating 'trials within trials' when a matter such as this is raised in connection with a trial of serious crimes.  Each case is to be assessed according to its own circumstances.

7. This ground of appeal fails.

Extension of time and leave to appeal

1. The appellants apply for an extension of time within which to appeal and leave to appeal.  The circumstances which give rise to the need for an extension of time are as follows.

2. The application for the non‑suppression order was heard by McKechnie J on 11 May 2009.  On 18 May 2009 his Honour made an order preventing the publication of the witness' name and indicated that reasons would be published in due course.  On 16 June 2009 his Honour published those reasons.  On 30 June 2009 the appellants lodged their notice of appeal, 14 days after the publication of the reasons but 43 days after the date of the decision.

3. The application for the extension of time is not opposed by the first respondent.  Given that the delay in filing the appeal was caused primarily by the delay in receiving the reasons for the decision and that the

application is not opposed, I would grant the application notwithstanding that the appeal will ultimately fail.

1. The principle of open justice is, as I have said, a significant element in furthering the public interest and exceptions to it are closely confined.  For that reason I would not lightly refuse leave to appeal even though, in the end, the appeal must fail.

Conclusion

1. For the reasons I have given, I would grant an extension of time within which to appeal and would grant leave to appeal.  But I would dismiss the appeal.

2. WHEELER JA:  I agree with the reasons of Owen JA in relation to the substantive issues in this appeal.  However, I would not have granted leave to appeal.  I would have refused leave because, in my view, the appellants have not demonstrated that "substantial injustice" would be done if the decision remained unreversed.

3. The injustice to which the appellants point, if the decision of the court below is unreversed, is that there will be continuing in existence a non‑publication order restricting their ability to report the name and identity of a witness in the trial of the second respondent.  I accept that that would be a prejudice and that, if the decision below was wrong, it would be an injustice to the appellants not to reverse it.  Whether the injustice would be "substantial" may be a matter for debate, given that the appellants were at liberty to report all of the content of the witness' evidence, save only for details of his identity, and given that the trial was some time ago and that it is not of current public interest.  However, it seems to me that it is not sufficient, in a case such as this, to look only at the interests of the appellants in determining whether there would be a "substantial injustice" in leaving the decision appealed from undisturbed. 

4. The interest of the appellants is not the only interest at stake in these proceedings.  There is also the interest of the witness whose identity was suppressed, and the question of the public interest in relation to the future conduct of criminal proceedings.  In order to understand those issues, it is necessary to mention briefly the chronology of relevant events. 

5. The trial of the second respondent had been due to commence on 11 May 2009.  For reasons which are not relevant, that date was deferred until 18 May 2009.  On 6 May 2009, the State filed an application seeking an order prohibiting publication of the identity of two persons, whom the

State intended to call as witnesses.  The application in respect of one of those persons failed. 

1. The application was heard by McKechnie J on 11 May 2009.  It was opposed by counsel for the second respondent.  It was also opposed by counsel for media organisations, who was granted leave to appear and make submissions.

2. At the conclusion of argument on 11 May 2009, McKechnie J continued a temporary suppression order which was then subsisting.  On 18 May 2009, at the commencement of the trial, his Honour made an order for suppression of the identity of the witness.  The trial took place between 18 May and 9 June 2009.  The witness gave evidence on 19 May, and it appears from the materials before us (which are not a complete record of the trial) for part of 20 May 2009.  McKechnie J published reasons for his decision suppressing the identity of the witness on 16 June 2009.

3. No application for leave to appeal was foreshadowed, it appears, either at the time at which McKechnie J announced his decision or at any time during the course of the trial.  The application for leave to appeal was made on 30 June 2009, some 29 days after the last day for appealing.

4. It appears, therefore, that when the witness came to give evidence, he would have done so knowing that the issue of the suppression of his identity had been determined favourably to him by McKechnie J, and without there having been made any suggestion that that decision would be the subject of appeal.  That is important in the light of the reasons for the seeking of the order before McKechnie J.  McKechnie J found that the witness' mental health may be significantly adversely affected by disclosure of his identity in connection with the proceedings.  His Honour also noted that it was important for the administration of justice that a witness was concentrating on the giving of evidence truthfully and actively, rather than on widespread dissemination of their private life. 

5. Had there been any suggestion before McKechnie J that his decision would be the subject of an appeal, a number of steps would possibly have been open to the State and to the witness.  It might have been possible for his Honour to have published reasons at an earlier stage, and for the State to have deferred the calling of the witness until an urgent appeal had been heard (or at least sought).  That course would have affected the coherence of the evidence at trial, but it is not impossible that the State might have taken it.  If there were particular aspects of his evidence about which the

witness was concerned, he might, at appropriate points during the trial, have felt it desirable to have sought a ruling from his Honour concerning whether it was necessary for him to answer particular questions, or how far it was necessary for him to elaborate on particular matters.  It may at least have been possible for him to disclose matters he was concerned about to his family and community members in a context of his choosing, in advance of their disclosure during the course of legal proceedings.  It seems to me there is a potential for injustice to the witness to permit the bringing of an appeal at a time when those steps are not open to him. 

1. Further, so far as the future conduct of other proceedings is concerned, it must be acknowledged that it will be rare indeed for orders of this type to be made.  However, where they are made, it seems to me that it is in the interests of justice that they either continue to stand, or are promptly reversed, before relevant evidence is given (wherever possible) so that a witness affected by such an order is able, as McKechnie J put it, to concentrate on the giving of evidence in the knowledge of the final state of the orders made. 

2. I should make it clear that it is not intended, in these reasons, to imply any criticism of the course taken by the solicitors for the appellants.  Orders of this kind are rare and the question of an appeal, no doubt, was given careful consideration.  However, for the reasons which I have outlined, a question of whether an appeal has been instituted or foreshadowed as a matter of urgency is a relevant consideration in determining whether leave to appeal should be granted in cases such as the present. 

Conclusion

1. I would grant an extension of time within which to appeal, but I would not grant leave to appeal.  If I had granted leave to appeal, I would have dismissed the appeal for the reasons given by Owen JA. 

2. BUSS JA:  I agree with Owen JA.