XYZ v Commonwealth of Australia

[2005] HCATrans 311

[2005] HCATrans 311

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M14 of 2005

B e t w e e n -

XYZ

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 4 MAY 2005, AT 9.30 AM

Copyright in the High Court of Australia

MR P.J. HANKS, QC:   May it please the Court, I appear with my learned friend, MS K.L. WALKER, for the plaintiff.  (instructed by Buxton & Associates)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia:   May it please the Court, I appear with my learned friend, MS R.J. ORR, for the defendant.  (instructed by Australian Government Solicitor)

Due to technical problems, the following 37 minutes of proceedings were not recorded and, accordingly, cannot be transcribed.

HIS HONOUR: On 3 September 2002 the plaintiff was arrested by Australian Federal Police officers in Melbourne and charged with three offences contrary to sections 50BA and 50 BC of the Crimes Act 1914 (Cth). The offences are alleged to have been committed in Thailand between July and December 2001. In September 2003 the plaintiff was committed to trial in the County Court of Victoria. From time to time that court has conducted what are termed “case conferences” concerning the future disposition of the matter.

In January 2005 the Director of Public Prosecutions of the Commonwealth filed an indictment charging the plaintiff with three offences, two offences contrary to section 50BA(1) of the Crimes Act 1914 and one offence contrary to section 50BC(1)(a) of the Crimes Act.  From time to time judges of the County Court have made orders forbidding the publication of the proceedings that took place in that court. 

On 25 February 2005 the plaintiff filed a writ of summons in this Court, together with a statement of claim, claiming a declaration that sections 50BA and 50BC of the Crimes Act are not valid laws of the Commonwealth. Proceedings were commenced using the pseudonym “XYZ” to denote the plaintiff.

The proceeding now comes before me on the return of the first summons for directions concerning the future conduct of the matter. The plaintiff seeks an order that the proceedings continue identifying him only as XYZ. A larger form of order was originally foreshadowed as the subject of application but, in the course of debate this morning, attention having been drawn to the provisions of section 15YR of the Crimes Act, the application is confined in the manner I have indicated. Section 15YR provides, amongst other things, that:

A person commits an offence if:

(a)      the person publishes any matter; and

(b)      the person does not have the leave of the court to publish the matter; and

(c)      the matter:

(i)       identifies another person (who is not a defendant in the proceeding) as a child witness or a child complainant in relation to the proceeding; or

(ii)      is likely to lead to the other person being identified as such a child witness or child complainant. 

The fundamental rule in this Court, as in other courts of Australia, is “that their proceedings shall be conducted publicly and in open view”:  see Russell v Russell (1976) 134 CLR 495 at 520 per Justice Gibbs; Scott v Scott [1913] AC 417 at 441. As Justice Gibbs said in Russell v Russell (1976) 134 CLR 495 at 520:

This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected . . . The fact that courts of law are held openly and not in secret is an essential aspect of their character.

The application that now is made is not an application that would close the proceedings in this matter from the public or the open view of the public.  The proceedings of the court, even if the plaintiff’s name is not revealed, would be fully exposed to public and professional scrutiny and criticism.  They would be held openly.  They would not be held in secret.

The plaintiff says that unless his name is not associated with the proceeding he may not, perhaps even will not, continue with them.  For my part, I consider that this aspect of the matter bears little weight in determining what course I should follow.  There are two reasons why that is so.  First, it is a matter for the plaintiff whether he wishes to maintain these proceedings in this Court, and, secondly, unlike cases such, for example, as those concerning medically acquired HIV disease, the plaintiff is not a voluntary participant in the judicial process.  The proceedings that have been brought against him in the County Court are proceedings brought against him contrary to his wish and the point which he seeks to make in this Court is a point which, if it is to be made at all, would have to be made in those proceedings.

In my view the important consideration in this matter is that which is reflected in the provisions of section 15YR(1) of the Crimes Act 1914. The particular interest that is to be regarded is the interests of the person who it is alleged was the victim of the offences charged against the plaintiff. The question then becomes whether it suffices in this case to allow section 15YR to operate according to its terms, leaving it to subsequent proceedings to determine whether the publication of the plaintiff’s name would be likely to lead to the other person being identified as a child complainant, or, at this stage of the proceeding, it is better that that risk be avoided by continuing to refer in this form to the plaintiff by the pseudonym XYZ.

On balance, caution requires the continued use of the pseudonym XYZ in order that the protection of the child complainant seen as worthy of the protection afforded by section 15YR may be maintained. Accordingly, there will be an order that, until further order, proceedings continue naming the plaintiff as XYZ.

Mr Hanks, is there any other matter that you wish to raise?

MR HANKS:   No, your Honour.

HIS HONOUR:   Yes, Mr Solicitor?

MR BENNETT:   No, your Honour.

HIS HONOUR:   Very well.  Call the next matter.

AT 10.17 AM THE MATTER WAS CONCLUDED