FEDERAL COURT OF AUSTRALIA
Commonwealth Director of Public Prosecutions v Christian [2019] FCAFC 5
ORDERS
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Appellant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BESANKO AND ROBERTSON JJ:
Introduction
1 This appeal by the Commonwealth Director of Public Prosecutions raises narrow but important questions concerning orders made by the primary judge on 30 July 2018 as to the redaction of certain online versions of judgments given in the criminal jurisdiction of the Supreme Court of Norfolk Island. Leave to appeal was granted on 28 August 2018.
2 One judgment in respect of which an order affecting publication on the internet was sought by the Director was dated 2 March 2018 and concerned an application for review of a grant of bail by the Chief Magistrate. The primary judge referred to this judgment as The Queen v Christian [2018] NFSC 2 (Christian No 1).
3 The second judgment in respect of which an order affecting publication on the internet was sought by the Director was dated 7 June 2018 and concerned the sentencing of the offender who had entered pleas of guilty to five counts of the offence of sexual intercourse with a young person contrary to s 113(2) of the Criminal Code 2007 (NI). The primary judge referred to this judgment as The Queen v Christian (No 2) [2018] NFSC 4 (Christian No 2).
4 We shall refer to Christian No 1 and Christian No 2 together as the two judgments.
5 The application of the Director was that the two judgments not be available on the internet. The two judgments, as well as the judgment under appeal, are all currently available on the open (non-subscription) internet on at least AustLII, the Federal Court of Australia website and Jade. As made clear by the Director, it is publication on the “open source internet” which is the issue. The orders sought are not directed to the publication of judgments on the internet as part of a subscription. Further, the Director explained that under the orders she sought, the judgments would still be available in the ordinary course to people who have a sufficient interest to take the trouble to go to the Supreme Court or contact the Supreme Court and get access to the judgments.
6 The two judgments had been given in open court and the Director did not then make any application for non-publication.
7 Also, the Director did not at any time seek an order preventing a person, including a journalist, from obtaining a copy of the two judgments from the Registry.
8 On 3 October 2018 the Court made orders granting counsel leave to appear as amicus curiae and in the role of contradictor on the appeal. We are grateful for their assistance.
The orders under appeal
9 The orders made by the primary judge were as follows:
1. Within 7 days of the date of this order, the Registrar is to write to the administrators of the websites maintained and operated by the Federal Court of Australia, the Australian Legal Information Institute (AustLii) and Judgments and Decisions Enhanced (Jade) and request that the online versions of the judgments in The Queen v Christian [2018] NFSC 2 (Christian No 1) and The Queen v Christian (No 2) [2018] NFSC 4 (Christian No 2) be redacted as follows:
(a) in relation to Christian No 1, the names of the victim’s friends which appear on the last line of [15] and the first and second lines of [17] be deleted or obscured; and
(b) in relation to Christian No 2, the last word of the first sentence of [6], the same word which appears as the sixth word of the first sentence of [12] and the seventh word of the third sentence of [12], and the first two lines of [16], other than the word “they” appearing at the end of the second line of [16] be deleted or obscured.
2. The application by the Crown dated 25 July 2018 is otherwise dismissed.
In substance, the Director challenges order 2, that her application was “otherwise dismissed”.
The reasons of the primary judge
10 The reasons of the primary judge were, in summary, as follows.
11 The primary judge said the Director’s primary submission was that the publication of the two judgments somehow contravened s 169 of the Criminal Procedure Act 2007 (NI). (This provision is set out at [15] below). If, as the Director contended, the two judgments tended to reveal the complainant’s identity, s 169 was breached when they were delivered orally, and certainly when the written version of the judgments were published and able to be obtained by members of the public. The Director’s submissions before the primary judge, however, were directed solely to the publication of the two judgments on the open internet.
12 At [28] the primary judge said:
28 The difficulty for the Director, however, is that neither of the judgments contain any references or allusions from which the complainant’s identity might reasonably be inferred. Nor do they contain information concerning the complainant which, taken together with information which had been proven to be already possessed by members of the community, was sufficient to enable identification.
13 At [38], the primary judge categorically rejected the contention that the six categories of information identified by the Director in support of her application, considered individually, collectively or cumulatively, contained references or allusions from which the complainant’s identity might reasonably be inferred. Nor did the categories of information relied on by the Director provide any support or justification for the Director’s contention that the judgments should not be “published publically, including on the internet”, because they tended to reveal the complainant’s identity.
The grounds of appeal
14 The grounds in the notice of appeal, as amended, were in the following terms:
Grounds of appeal
1. In relation to s 169 of the Criminal Procedure Act 2007 (NI) and the identification of the complainant, the primary judge erred in not concluding that (1) the age and (2) the school year of the complainant are in the circumstances references or allusions from which the victim’s identity might reasonably be inferred.
2. In relation to the dismissal of the relief that the judgments be recalled and thereafter not made available for publication on the internet on the grounds that their publication on the internet is reasonably likely to cause undue harm to the victim, the primary judge’s discretion miscarried in one or more of the following ways:
2.1. It was an irrelevant consideration that the victim’s views about the publication of the judgments on the internet had not been sought and put before the court, particularly having regard to her age and that seeking her views may have itself caused her harm;
2.2. Having found that most people in the relevant community already know the identity of the victim, the primary judge made a mistake on the facts in not concluding that the publication of the judgments on the open source internet would be likely to cause the victim significant embarrassment, trauma and/or psychological harm;
2.3. It was an irrelevant consideration that there was no evidence that anyone had accessed the judgments for a nefarious purpose;
2.4. It was an irrelevant consideration that details of the offending were referred to by the Crown in presenting its submissions in the sentencing hearing;
2.5. It was an irrelevant consideration in rejecting the relief that many people on Norfolk Island already know the name of the complainant and at least some of the details of the offences and offending conduct;
2.6. The primary judge erred in principle in misapplying Matthews v The Queen (No 2) [2013] NSWCCA 194 and in not dealing with the appellant’s submissions with reference to that case.
3. In relation to the dismissal of the relief that the judgments be recalled and thereafter not made available for publication on the internet on the ground that their publication on the internet is reasonably likely to be detrimental to the administration of justice by discouraging other victims from reporting offences or cooperating with the authorities, the primary judge’s discretion miscarried in one or more of the following ways:
3.1. Not considering, or giving insufficient weight to, the evidence of the reluctance of people on Norfolk Island from being seen to be cooperating with the police and the more recent increasing co-operation of people with the police and considering irrelevant matters including that that evidence was not specifically about the present matter, that it was not apparent that sexual assault is common on Norfolk Island and that, as he concluded, the average resident would be unaware that the Court’s judgments are published online;
3.2. Not concluding on the facts that the publication of the judgments on the open source internet would be likely to cause other victims to be more reluctant to report offences or to cooperate with the authorities.
4. The primary judge erred on a matter of principle in regarding it to be centrally important to considerations of open justice that the judgments, being judgments at first instance and of no or limited precedential value, be available for publication on the open source internet.
The orders sought were as follows:
1. That the appeal be allowed.
2. That the orders of the primary judge be set-aside and replaced with an order to the following effect:
The reasons for judgment in The Queen v Christian [2018] NFSC 2 and The Queen v Christian (No 2) [2018] NFSC 4 be recalled by the Court and thereafter be published to the parties and not be made available for publication on the open source internet.
3. Any other orders that the Court considers appropriate.
The Director said that the mechanism she envisaged was that the Court make an order recalling its reasons for judgment which would then have the effect of those third-party providers taking them down, or if necessary the Court would order them to take those reasons for judgment down. Then the Court would publish its reasons for judgment again, but only to the parties. The reasons for judgment would however remain available in the Registry to those who wished to come and get them. Under this proposed regime it would be possible for a newspaper to reproduce part or all of the two judgments. It will be necessary later in these reasons to analyse the substance of the orders sought by the Director.
The legislation
15 Section 169 of the Criminal Procedure Act was in the following form:
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.
16 Sections 213 and 214 of the Criminal Procedure Act also relevantly provided:
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.
17 The Supreme Court Act 1960 (NI) provided:
Rules of court
19. (1) The Chief Justice may make rules of court, not inconsistent with this Act, regulating the practice and procedure of the Court, and prescribing all matters and things necessary or convenient to be prescribed for carrying out or giving effect to this Act or for the conduct of the business of the Court.
…
(4) Until, in relation to a matter or class of matters, rules of court are made by the Chief Justice, under subsection (1), the rules of court for the time being in force of the Supreme Court of the Australian Capital Territory in relation to that matter or class of matters shall, so far as applicable and mutatis mutandis, be the rules of court of the Supreme Court.
(5) Where provision in respect of a question of practice or procedure is not made by this Act, by rules of court or by any other law in force in the Territory, the practice of the Federal Court of Australia in its original jurisdiction applies.
(6) In this section, “practice and procedure” includes matters relating to —
(a) the attendance of witnesses;
(b) the custody or bail of accused or convicted persons; and
(c) the enforcement and execution of judgments.
18 The Court Procedure Rules 2006 (ACT) provided:
1600 Orders—required by nature of case
(1) On the application of a party to a proceeding, the court may, at any stage of the proceeding, make any order that the nature of the case requires.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
Note 2 Order is defined in the dictionary to include judgment (see also def made).
(2) The court may make the order even if there is no claim for relief extending to the order in the originating process, statement of claim, counterclaim or similar document.
19 The Federal Court of Australia Act 1976 (Cth) provided:
37AE Safeguarding public interest in open justice
In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
(1) The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or…
…
(2) The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
37AG Grounds for making an order
(1) The Court may make a suppression order or non-publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice;
(b) …;
(c) …;
(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.
The definition of “party” in s 37AA was follows:
party to a proceeding includes the complainant or victim (or alleged victim) in a criminal proceeding and any person named in evidence given in a proceeding and, in relation to a proceeding that has concluded, means a person who was a party to the proceeding before the proceeding concluded.
The Director’s submissions
20 The concern of the Director was said to be threefold. First, she submitted that certain details in the two judgments constituted references or allusions from which the complainant’s identity might reasonably be inferred. The complainant was 13 years of age at the time of the offences and 14 at the time of the proceedings. Second, to the extent that the complainant’s identity was already known in her community – which was considerable – or could be inferred from the judgments, the indefinite/permanent publication online of details of the offending would be liable to cause her embarrassment and distress or trauma. The Director wanted to protect the complainant from having the intimate details of her life in the judgments published and available on the internet indefinitely and forever. Third, it was submitted that the publication of information from which the complainant’s identity might be inferred and/or the publication of details of the offending might reasonably have the effect of inhibiting other complainants, whether in the present or the future, from coming forward and reporting offences against them to the relevant authorities.
21 The Director submitted that the open justice principle operated, in Norfolk Island, against the statutory backdrop of s 169 of the Criminal Procedure Act. That provision made it clear that the legislature placed a premium on the protection of the identity of a complainant of a sexual offence. It made it an offence for a person to publish, in relation to a sexual offence proceeding, even “a reference or allusion from which the complainant’s identity might reasonably be inferred” (s 169(1)(d)).
22 That provision, the Director submitted, informed the grounds upon which a court would limit publication of its own judgment so as to avoid the reasonable possibility that a complainant’s identity was revealed by publication of a judgment, and to avoid the consequences for a complainant that might reasonably follow from the publication of details of the offending where the complainant’s identity was known.
23 The Director submitted that the primary judge erred by acting upon wrong principles, allowing irrelevant matters to guide the exercise of his discretion, and mistaking the facts such as to amount to appellable error even if the decision was properly characterised as discretionary: House v The King [1936] HCA 40; 55 CLR 499 at 504-5.
24 The Director submitted that the primary judge failed to reach the conclusion that ought to have been reached, namely that the complainant’s age and school year were references or allusions in the two judgments from which her identity might reasonably be inferred. Having reached that conclusion, the Director submitted, the primary judge ought then to have concluded that the two judgments should be recalled and not made available for publication on the “open source internet” in order to protect the identity of the complainant.
25 The Director submitted she was concerned to prevent harm to the complainant that might arise from persons who were not present at the proceedings but who might now readily access the two judgments on the internet. The fact that the two judgments were delivered ex tempore in open court meant that open justice was served, meaning that there was little reason not to accede to the relief that was sought, rather than to justify refusing the relief on that ground. Open justice was not implicated, or significantly implicated, by the restriction of publication on the internet.
26 Accordingly, the Director submitted, the primary judge erred in relying on a single aspect of the judgment in Matthews v The Queen (No 2) [2013] NSWCCA 194 without taking into account other distinguishing features of the two cases. Although the Court in Matthews did not consider it necessary in the administration of justice to depart from the open justice principle, the Director submitted the same conclusion did not follow in this case. The Director submitted that there was an implication for open justice in the orders she sought but referred to the distinction in Matthews at [3] to a judgment being handed down and in that sense “published”, but not “published” in the sense of being uploaded immediately onto Caselaw [www.caselaw.nsw.gov.au].
27 Next, the Director submitted that the primary judge had regard to certain matters which were extraneous or irrelevant. The first of these matters said to be irrelevant was that the complainant had not expressed concern or alarm as to the publication of the two judgments on the internet. The second of these matters was that details of the offending were referred to by the Director in presenting her submissions in the sentencing hearing. The third of these matters was that “many people on Norfolk Island most likely already knew the name of the complainant and at least some of the details of the offences and offending conduct”. The fourth of these matters was that the judgements had not in fact been accessed by third parties for nefarious purposes.
28 The Director next submitted that the primary judge made an incorrect finding of fact that publication of the two judgments on the “open source internet” was unlikely to cause significant embarrassment, trauma and/or other psychological harm to the complainant. First it was submitted that the primary judge should not have relied on the fact that the complainant had not raised any concern regarding trauma caused by online publication of the judgments. Second, the Director submitted the primary judge failed to consider that the two judgments contained significant factual details which, if made publicly available by a readily accessible means, were likely to cause the complainant embarrassment and trauma. Third, it was submitted that the primary judge failed to appreciate that publication on the internet is a much more readily accessible means than other forms of publication, particularly for lay people. Accordingly, the Director submitted there was a real risk that publication of the two judgments on the internet could occasion trauma, embarrassment and/or other psychological harm to the complainant in the future.
29 The Director’s fifth ground was that the primary judge made an incorrect finding of fact that publication of the judgments on the “open source internet” was unlikely to deter the people of Norfolk Island, including child victims of sexual assault, from reporting to or co-operating with the police in the future. The Director submitted that it was well-established that deterrence of discouragement of potential complainants or other parties from seeking justice may be grounds for finding that it is necessary to restrict the open justice principle. The Director submitted that the primary judge failed to have appropriate regard to the evidence that was strongly supportive of the conclusion that the public identification of a sexual offence complainant and the publication of details of the offending would damage the trust that victims might have in the administration of justice and deter them from reporting crimes against them. The proper conclusion to be drawn from the evidence was that if information given in confidence to police and other authorities relating to complainants and victims of sexual assault became readily and widely available on Norfolk Island, it would dissuade complainants and victims on Norfolk Island from assisting the police.
30 The Director’s sixth ground was that the primary judge erred on a matter of principle by exaggerating the importance of the judgments being publicly available on the “open source internet”. The reasons for judgment in both Christian No 1 and Christian No 2 had been given in open court and open justice thereby had been (significantly) served, and the two judgments had minor precedential value with reference to uniformity or consistency in bail and sentencing.
The contradictor’s submissions
31 Counsel appearing as amicus curiae (the contradictor) submitted that the primary judge had the same powers to make suppression and non-publication orders as the Federal Court does in its original jurisdiction under Part VAA of the Federal Court of Australia Act. Accordingly, the contradictor did not dispute that the primary judge had a power to make the orders sought by the Director if it was necessary to do so to prevent prejudice to the proper administration of justice, or if it was necessary to avoid causing undue distress or embarrassment to the complainant. The contradictor also accepted that s 169 of the Criminal Procedure Act informed what was necessary to prevent prejudice to “the proper administration of justice”.
32 The requirement of necessity imposed a high threshold, it was submitted. In Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651, the High Court held the word “necessary” in former s 50 of the Federal Court of Australia Act imposed a stringent standard before a nonpublication order could be made. “Necessary” did not mean merely “convenient, reasonable or sensible” nor did it import any suggestion of a “balancing exercise”. The contradictor submitted the same reasoning applied to Part VAA of the Federal Court of Australia Act.
33 The contradictor submitted the High Court in Hogan held that a decision under former s 50 concerning the making of a suppression order was not a discretionary one. It was held that once the relevant necessity – “to prevent prejudice to the administration of justice or the security of the Commonwealth” – was demonstrated, the Court was obliged to make the relevant order. That reasoning by its terms applied also to the inherent powers of a court to make a non-publication order, which power was exercisable only when necessary in the interests of the administration of justice. Accordingly, the contradictor submitted that this appeal was not one to which the principles in House v The King applied. The contradictor also referred to Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at [18] (Kiefel CJ), [48]-[50] (Gageler J), [85]-[87] (Nettle and Gordon JJ). However, the submission continued, given the errors alleged it was necessary for the Director to establish one or more of the asserted “House v The King errors”.
34 The contradictor submitted, in relation to ground one, that the primary judge was correct, for the reasons given at [32]-[34], that the age and school year of the complainant were not “references or allusions from which the complainant’s identity might reasonably be inferred” within the meaning of s 169 of the Criminal Procedure Act. There was no evidence quantifying the number of girls the complainant’s age residing on Norfolk Island at the time of the offence. On the evidence, it was not possible for a person to reasonably infer the complainant’s identity from her age and school year.
35 In relation to ground two, the contradictor submitted it was important to note that this ground and also ground three appeared to be premised on the basis that it was enough if publication was “reasonably likely” to cause undue harm to the complainant. The contradictor submitted that that was not the relevant question. Whilst the probability that publication (or ongoing publication) would cause harm was relevant to the question of necessity, it was apt to distract attention from the correct question: was the non-publication order necessary to prevent prejudice to the proper administration of justice or to avoid causing undue distress or embarrassment to the complainant?
36 The contradictor submitted that Matthews v The Queen (No 2), particularly at [7]-[10], did not support the proposition that the principle of open justice was not implicated, or significantly implicated, by restricting publication on the internet of material disclosed in open court. It would be an exceptional case where it was “necessary” to the administration of justice to prevent the continuing publication of material previously disclosed without restriction in open court.
37 The contradictor submitted the absence of evidence of the views of the complainant was also a highly relevant matter for the primary judge to consider, when further embarrassment or traumatisation were put forward as reasons for making the orders belatedly sought. The Director’s speculation that the complainant was not competent to assess the significance of the considerations presently before the Court was, at best, irrelevant. The significance of the possible distress was always a matter for the Court to assess.
38 The absence of evidence that any person had accessed the judgments for an improper purpose was, it was submitted, a matter that the primary judge was entitled to consider.
39 The contradictor submitted the significance of the Crown referring to details of the offending when presenting its submissions in the sentencing hearing was that there was no suggestion at the time that the details could embarrass the complainant, and no suppression or non-publication orders were sought. That was a matter which tended to undermine the conclusion that the non-publication orders sought were necessary to prevent undue distress or embarrassment to the complainant.
40 The contradictor submitted that the judgments at issue did not contain details which could seriously be described as unnecessarily salacious or embarrassing. Further, it was not apparent what information the two judgments disclosed that would be likely to cause the complainant further undue distress or embarrassment among those who already knew the complainant’s identity. In addition, the contradictor submitted that, for the reasons given by the primary judge, disclosure of the judgments would provide support to the complainant.
41 The contradictor submitted that the primary judge plainly carefully weighed the competing factors, which were complex and nuanced, and formed the considered view that a blanket restraint on publication was not justified. An appeal court would not lightly gainsay the view formed by a primary judge on such matters, still less find House v The King error.
42 Ultimately, the contradictor submitted, the primary judge was correct to conclude that there was no real risk of undue distress or embarrassment to the complainant, and that even if there was a risk it was very small and speculative: see the judgment at [50]. In those circumstances the order sought could not have satisfied the high threshold of “necessity”.
43 The contradictor submitted the primary judge accepted the premise that a non-publication order could be justified by the need to prevent prejudice to the proper administration of justice where publication was likely to cause other victims of crime to be more reluctant to report offences or to co-operate with the authorities but there was little, if any, evidence that continuing publication of the two judgments on the internet would be likely to have such consequences. None of that evidence suggested that continuing publication of the judgments would possibly, let alone likely, lead to Norfolk Island residents not co-operating with the police. The substance of the evidence was that such residents were reluctant to co-operate with police generally.
44 The orders sought could not, it was submitted, be regarded as “necessary to prevent prejudice to the proper administration [of] justice”.
45 As to ground four, the contradictor submitted that the fundamental public interest in open justice, as noted by the primary judge at [65], was what lay at the heart of the high burden that must be satisfied before a court is permitted to restrict the publication of material disclosed in open court. The correct question in the present case was why should reasons for judgment that were already available on the internet be suppressed. The primary judge adopted the correct approach: see the judgment particularly at [67].
46 The contradictor submitted the primary judge was correct to conclude that, save for the minor redactions which his Honour made, the non-publication orders sought were not necessary to prevent prejudice to the proper administration of justice or to avoid undue distress or embarrassment to the complainant.
The Director’s reply submissions
47 In reply, the Director accepted that the relevant test would be whether the order sought was “necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature”: s 37AG(1)(d) of the Federal Court of Australia Act. If that provision applied, the decision of the primary judge did not amount to the exercise of a discretion to which the principles in House v The King would apply.
48 If s 37AG did not apply then this was not a case where the exercise of the Court’s power was conditioned by any express or implied statutory limitations or restrictions as was the case in Hogan.
49 The Director submitted that the relevant provisions of the Federal Court of Australia Act were a matter of statutory requirement and not a matter of practice within the meaning of s 19(5) of the Supreme Court Act. Her submission was that the power was a common law power as reinforced by or as made clearly available under r 1600 of the ACT Court Procedure Rules as picked up by s 19(4) of the Supreme Court Act and that it was a matter of discretion.
50 The Director confirmed that all that was sought to be achieved by the orders was that the two judgments be removed from the internet. What was sought to be achieved was that the two judgments were not made available for publication on those parts of the internet that the ordinary public (i.e. without subscription) could access.
51 The Director submitted that the question of whether an order of the kind sought was relevantly “necessary” ought to be viewed as involving two distinct limbs of consideration. Under the first limb, consideration must be given to the question of what harm would be likely to occur to the complainant by publication of the judgments. This limb, being a factual question, involved an assessment of the evidence before the Court on the ordinary civil standard of balance of probabilities. Only once the first limb had been addressed was it logical to then ask whether a non-publication order was “necessary” to prevent the identified harm from occurring. While it was accepted that deciding what was “necessary” under the second limb involved the application of a stringent standard, the same standard was not applicable to the first, factual, question of what harm to the complainant was likely.
52 The Director submitted the Court was asked to prevent publication on the internet after it had become apparent that the two judgments had been published on the internet and risked causing undue distress or embarrassment to the complainant. Under such changed circumstances, it was not logically relevant to take into account the position as it had been at the time of the hearing in relation to the Director’s appreciation of whether a restrictive order was then necessary.
53 The Director submitted that whether or not the complainant had formed a subjective view at the current time that publication of the judgments on the internet would cause her undue distress or embarrassment now or at some later time was irrelevant to the Court’s own assessment of that question, which must be carried out based on the objective features of this case.
54 The Director submitted that her reference to details of the offending in presenting her submissions at the hearing was irrelevant to the distress and embarrassment that may now or in the future be caused to the complainant by the publication of those details on the internet. The present case was aimed at ensuring that the relevant details were not forever available online. What was said orally in the presence of a small number of people in court during the sentencing hearing, particularly in the absence of any suggestion, let alone evidence, that what was said orally had been reported on the internet, was not logically relevant to that question.
Consideration
55 There are three main issues on the appeal. First, is the source and nature of any power in a judge of the Supreme Court of Norfolk Island to make the orders sought. Second, is the form and substance of the orders sought in the present case. Third, is the challenge to the fact-finding of the primary judge. It is convenient first to consider the orders sought as that will have a substantial bearing on the source and nature of any power.
Orders sought
56 The substance of the orders is relevant both to the source and nature of the power to grant the relief and, assuming power, the appropriateness of such an order.
57 The width of the relief sought by the Director at first instance needs to be borne in mind: that is, the application was that the entirety of the two judgments be removed from the open internet. Similarly, the amended notice of appeal seeks an order that the two judgments be recalled and thereafter not be made available for publication on the “open source internet”.
58 The order is not directed to those who were present in court when the matters the subject of the two judgments were heard or when the two judgments were delivered.
59 In our opinion, the substance of the order sought, leaving aside any mechanism by which its effect might be achieved, is that third parties be prohibited from making available, without charge, the two judgments on the internet. The third parties could not be defined as it is not known with any certainty what entities are involved or may choose to become involved in making available the two judgments without charge on the internet. It is not sought to prevent those third parties from having access to the two judgments because the Director accepts that anybody may obtain a copy from the Registry.
60 It follows that the character of the order sought is that it is a non-publication order against the world so far as concerns publication on a website which does not charge for access.
61 In relation to the appropriateness of the order sought, the Director does not apply, for example, to prevent a newspaper circulating on Norfolk Island from publishing either the entirety of the two judgments or parts of them.
62 The Director submitted that the form of order is narrow and directed to casual and gratuitous access to the two judgments, but there is no evidence showing the ease, or otherwise, with which the two judgments may be found on free websites on the internet.
63 In our opinion, the primary judge did not err in characterising the objective of the order sought as being to have the two judgments removed from the internet: see the judgment at [2].
The source of the power
64 As to the source of the power, in John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344 Spigelman CJ said at [21] that from time to time the court was asked to make orders that some aspect or aspects of court proceedings not be the subject of publication but that any such order must, in the light of the principle of open justice, be regarded as exceptional. At [38]-[39], Spigelman CJ said:
[38] Much of the relevant case law on non-publication orders is concerned with courts which have an inherent jurisdiction. In such a case a test of necessity is applied to the exercise of the power to make an order, as distinct from determining the existence of the power. In the context of an implied power, the two levels are analytically distinct but, as a practical matter, there will rarely be any need to differentiate between the two levels. Cases which apply a test of necessity to the exercise of an inherent jurisdiction or of an express statutory power will guide the determination of whether a power arises by way of implication for a statutory court.
[39] Both the existence of, and the limitations upon, a power to make a non- publication order are set out in the principal authority on this subject in this State: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, an authority which has frequently been referred to with approval and which this Court should follow.
65 There is an express power in the Supreme Court of Norfolk Island, including after the hearing of a proceeding, to make an order forbidding the publication of the name of a party, which includes the publication of a reference or allusion to a party to a proceeding if the reference or allusion is such as to disclose the identity of the party: see ss 213 and 214 of the Criminal Procedure Act, set out at [16] above, made expressly applicable to a proceeding in the Supreme Court by s 212.
66 The Director did not address these sections but she did make a submission about the corresponding terms of s 169 of the Criminal Procedure Act creating an offence to publish, in relation to a sexual offence proceeding, a reference or allusion from which the complainant’s identity might reasonably be inferred. The Director submitted that s 169 was directed only at identification questions but not at the other questions the Director raised. She submitted that such an order was inadequate to the harm or mischief which she sought to prevent.
67 In our opinion, the only source of power to make the type of order contended for by the Director could be the inherent jurisdiction or implied power in limited circumstances to restrict the publication of proceedings conducted in open court: see Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [26] per French CJ. We note that at [46], French CJ said the existence of a power to make orders prohibiting publication of evidence or information disclosed in proceedings in open court to bind the world at large was doubtful.
68 We do not regard the possible statutory sources of power as sufficient to sustain an order of the character sought by the Director. It seems to us to be clear that such an order is not a matter of practice and procedure such that it could be the subject of rules of court. It would follow that the rules of court for the time being in force of the Supreme Court of the Australian Capital Territory would not be made applicable by s 19(4) of the Supreme Court Act (NI). Even if they were, the provision of the Court Procedure Rules (ACT) relied on would be entirely inadequate to sustain the proposed order. We have set out the terms of that rule at [18] above. Similarly, in our opinion, s 19(5) of the Supreme Court Act (NI), which we have set out at [17] above, would be inadequate to pick up the substantive law enacted by the provisions of the Federal Court of Australia Act giving the court power to make a suppression order or non-publication order.
69 In referring to the inherent jurisdiction or implied power, we are assuming that such a power would continue to exist to sustain an order of the character sought by the Director even though the legislature has made express provision for the Supreme Court to forbid the publication of the name of a party in ss 213 and 214 of the Criminal Procedure Act: see [16] and [65] above.
70 On the assumption that there is a power to make a non-publication order against the world in the present circumstances, the issue then becomes whether the exercise of the power is justified by reference to the necessity of such orders in the interests of the administration of justice. The Director put her submissions on the basis that the orders were necessary in the proper administration of justice. In light of the importance of the principle of open justice, we see no reason to approach the issue of what is necessary in this context in a manner which departs from the approach of the High Court in Hogan v Australian Crime Commission at [30]-[31], that is, that “necessary” is a strong word and it is insufficient if all that appears is that the order be convenient, reasonable or sensible or serve some notion of the public interest.
71 We see no error on the part of the primary judge in approaching the issue by reference to whether or not the order sought was necessary to prevent prejudice to the proper administration of justice: see the judgment at [7].
72 Relevant to what is necessary is, first, the limited nature of the order sought, limited to publishers on the open internet and not to non-internet publishers whether for reward or otherwise, and, second, the shadowy evidentiary basis for the Director’s contention that there was a substantial risk that people on Norfolk Island had or would have the interest and knowledge to access the “open source internet” for that purpose.
Challenges to the fact-finding
73 To be borne in mind is the paucity of the evidence before the primary judge and that in substance the grounds of appeal contend that the primary judge erred in failing to draw inferences.
74 The first point is whether the two judgments contain a reference or allusion from which the complainant’s identity might reasonably be inferred. The primary judge considered that the two judgments did not. In terms of evidence, for example, at [14] the primary judge said that there was no evidence or indication that the complainant, or any member of her family, considered that the judgment in Christian No 2 tended to reveal the complainant’s identity, or that the publication of the reasons could cause her any further embarrassment, or that the complainant had any concerns whatsoever in that regard. In terms of conclusion, we have set out at [12] above what the primary judge said at [28]. We refer also to [38] of the judgment.
75 We see no error in the conclusion of the primary judge on this issue. We do not accept the Director’s submission that the primary judge failed to reach the conclusion that ought to have been reached, namely that the complainant’s age and school year were references or allusions in the two judgments from which her identity might reasonably be inferred. We therefore reject ground one of the Director’s amended notice of appeal.
76 Having concluded that there was no error in this respect, there is little of substance remaining on this aspect of the appeal. We do not accept the submission on behalf of the Director that two different limbs of consideration are involved: see the submission we have set out at [51] above. Neither do we accept what was perhaps implicit in this submission on behalf of the Director, that the primary judge applied a wrong standard of proof to fact-finding by reference to the concept of what was “necessary”.
77 Another significant matter, to which the primary judge referred at [17], is that many people on Norfolk Island are most likely already to know the identity of the complainant and at least some of the details of the offences and offending conduct. The primary judge said it may also be readily inferred that anyone who did not now know the complainant’s name, but for some reason wanted to find it out, could readily ascertain her name from other people on the island who already knew it, without troubling themselves to locate either of the two judgments on a legal database on the internet. The primary judge added that the same could be said about information concerning the nature or circumstances of the offending conduct.
78 To describe these matters as irrelevant considerations means, in context, no more than that the Director disagrees with the reasoning of the primary judge.
79 In context, that the complainant’s views about the publication of the two judgments on the internet had not been sought was not an irrelevant consideration because, as the primary judge said at [15], it would have been a weighty consideration if there had in fact been evidence that the complainant was upset and traumatised by the continuing availability of the judgments on the internet.
80 Next, in our opinion, that there was no evidence that anyone had accessed the judgments for a nefarious purpose was not an irrelevant consideration. The primary judge said this in the course of rejecting what he described as a rather speculative submission on behalf of the Director, noted at [49] of the judgment.
81 Third, that details of the offending were referred to by the Director in presenting her submissions in the sentencing hearing was not an irrelevant consideration but a matter considered by the primary judge, at [43], in the context of a submission by the Director that some details of the description of the offences and the surrounding circumstances could embarrass the complainant. The primary judge was assessing whether or not the facts now said to be likely to cause embarrassment and trauma to the complainant were earlier seen in that light.
82 Fourth, that many people on Norfolk Island already knew the name of the complainant and at least some of the details of the offences and offending conduct was not an irrelevant consideration. At [17], the primary judge was assessing whether there was any utility in the relief sought by the Director.
83 We do not accept that the primary judge made a mistake on the facts in not concluding that the publication of the two judgments on the “open source internet” would be likely to cause the complainant significant embarrassment, trauma and/or psychological harm. The submission on behalf of the Director was summarised at [39] of the judgment and the primary judge gave six reasons for rejecting it, the first being that there was no evidence that the complainant had expressed any concern or alarm about the publication of the two judgments on the internet. The primary judge described the suggestion that the complainant would be likely to be traumatised by the publication of the details of the offences as pure speculation. It seems to us that the primary judge was being asked to draw inferences and declined to do so for reasons he gave.
84 As to the submission that the primary judge erred by misapplying Matthews and in not dealing with the appellant’s submissions with reference to that case, it is difficult to see what the relevant principle is said to be or how the primary judge misapplied any such principle. As stated by the primary judge at [64], the New South Wales Court of Criminal Appeal in Matthews refused the application for a non-publication order and one of the Court’s reasons was that many of the details were canvassed at the trial which was conducted in open court. The primary judge also noted that here the information in the two judgments had also already been available on the internet for a number of weeks. It follows that we reject ground two of the amended notice of appeal.
85 The next ground of appeal, ground three, was that the primary judge erred in not recalling the two judgments and thereafter not making them available for publication on the internet on the ground that their publication on the internet was reasonably likely to be detrimental to the administration of justice by discouraging other complainants from reporting offences or co-operating with the authorities. The primary judge considered these matters at [51]-[56] and held that the evidence provided little, if any, support for the contention advanced by the Director. One of the points made by his Honour was that none of the police officers who swore affidavits specifically linked to the publication of the two judgments, on the internet or otherwise, the past reluctance of members of the Norfolk Island community to communicate with the police. Nor did they link that past reluctance to any perception that the Court would not protect the privacy of complainants.
86 It was contended in this respect that the primary judge erred in not considering, or giving insufficient weight to, the evidence of the reluctance of people on Norfolk Island from being seen to be co-operating with the police and the more recent increasing co-operation of people with the police; and in considering irrelevant matters including that that evidence was not specifically about the present matter, that it was not apparent that sexual assault was common on Norfolk Island and that, as he concluded, the average resident would be unaware that the Court’s judgments were published online. We reject this ground. It refers only to part of the reasoning of the primary judge in relation to this point. The point failed for lack of evidence as evaluated by the primary judge. The primary judge plainly considered the evidence which was led.
87 Second it was contended that the primary judge erred in not concluding on the facts that the publication of the two judgments on the “open source internet” would be likely to cause other victims to be more reluctant to report offences or to co-operate with the authorities. This contention has no separate force and we reject it.
88 It seems to us that the Director’s last ground of appeal, ground four, that the primary judge erred in regarding it to be centrally important to considerations of open justice that the two judgments be available for publication on the “open source internet”, is without substance. It may be accepted that the two judgments were at first instance and were of no or limited precedential value, but that does not adequately state the concept of open justice. The reasons of the primary judge in the two judgments, both on the application for review of the Chief Magistrate’s grant of bail and in relation to the sentencing remarks, show how the primary judge reasoned to make the orders he made. Thus the important principle of open justice was vindicated by being able to see how justice was administered in this particular case.
Conclusion
89 In our opinion, the appeal should be dismissed.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko and Robertson. |
REASONS FOR JUDGMENT
FLICK J:
90 The present appeal has a somewhat unusual background.
91 It arises out of a criminal prosecution in the Supreme Court of Norfolk Island (the “Supreme Court”). The Respondent to the appeal, Mr Tiaan Linley Christian, pleaded guilty to five counts of the offence of sexual intercourse with a young person contrary to s 113(2) of the Criminal Code 2007 (NI).
92 The primary Judge sitting as a Judge of the Supreme Court, being also a Judge of this Court, has published three judgments. The first given on 2 March 2018 concerned an application for review of a grant of bail: R v Christian [2018] NFSC 2. The second judgment given on 7 June 2018 was one as to sentencing: R v Christian (No 2) [2018] NFSC 4. It was only after the publication of these two judgments that an Application was made on 25 July 2018 on behalf of the present Appellant, the Commonwealth Director of Public Prosecutions (the “Director”), seeking an order recalling and thereafter restricting publication of the earlier two judgments. No like application had been made at the time the two judgments were given in open court. The primary Judge resolved that application on 30 July 2018: R v Christian (No 3) [2018] NFSC 5.
93 The Director now appeals from that third judgment by leave granted on 28 August 2018. The Respondent took no part in the Appeal. On 3 October 2018, the Court made orders granting leave to Mr Neil Williams SC and Mr Thomas Price to appear as amicus curiae and in the role of Contradictor.
94 It is concluded that the appeal should be dismissed.
The Application made, the orders of the primary Judge & the Notice of Appeal
95 The Application made by the Director to the primary Judge and dated 25 July 2018 was expressed as follows:
Take notice that the Court will hear an application by the Crown on 30 July 2018 at 10.15am, to make the following orders:
1. The judgments The Queen v Christian [2018] NFSC 2 and The Queen v Christian (No 2) [2018] NFSC 4 be recalled by the Court and thereafter not be published other than to the defendant, the Crown, and the complainant.
2. The judgments The Queen v Christian [2018] NFSC 2 and The Queen v Christian (No 2) [2018] NFSC 4 are not to be published publically, including on the internet.
3. Any other orders that the Court considers appropriate.
96 The Orders made by the primary Judge on 30 July 2018 in respect to that Application were as follows:
1. Within 7 days of the date of this order, the Registrar is to write to the administrators of the websites maintained and operated by the Federal Court of Australia, the Australian Legal Information Institute (AustLii) and Judgments and Decisions Enhanced (Jade) and request that the online versions of the judgments in The Queen v Christian [2018] NFSC 2 (Christian No 1) and The Queen v Christian (No 2) [2018] NFSC 4 (Christian No 2) be redacted as follows:
(a) in relation to Christian No 1, the names of the complainant’s friends which appear on the last line of [15] and the first and second lines of [17] be deleted or obscured; and
(b) in relation to Christian No 2, the last word of the first sentence of [6], the same word which appears as the sixth word of the first sentence of [12] and the seventh word of the third sentence of [12], and the first two lines of [16], other than the word “they” appearing at the end of the second line of [16] be deleted or obscured.
2. The application by the Crown dated 25 July 2018 is otherwise dismissed.
97 The Amended Notice of Appeal states that it is an appeal “from the whole of the judgment and orders … given on 30 July 2018”. The substantive order sought on appeal is expressed as follows:
That the orders of the primary judge be set-aside and replaced with an order to the following effect:
The reasons for judgment in The Queen v Christian [2018] NFSC 2 and The Queen v Christian (No 2) [2018] NFSC 4 be recalled by the Court and thereafter be published to the parties and not be made available for publication on the open source internet.
98 The appellate jurisdiction of this Court which is invoked is that conferred by s 24(1)(b) of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”), namely the jurisdiction to hear an appeal from “judgments of the Supreme Court of a Territory”. That jurisdiction, like this Court’s other appellate jurisdiction, is confined to the hearing of appeals from “judgments”. The term “judgment” is defined in s 4 as relevantly meaning “a judgment, decree or order, whether final or interlocutory”. It may be queried whether the “request” made by Order 1 of the Orders made by the primary Judge falls within the term “judgment”. But Order 2 as made by the primary Judge is unquestionably a matter which attracts this Court’s appellate jurisdiction.
The reasons of the primary Judge
99 The basis upon which the Application was made by the Director for an order that the judgments “not … be published publically” was elusive.
100 As recounted by the primary Judge, however, it would appear that the “primary basis of the Director’s application [was] that publication of judgments on the internet contravenes s 169 of the Criminal Procedure Act 2007 (NI) because they contain information from which the complainant’s identity might reasonably be inferred”: [2018] NFSC 5 at [4]. It would also appear from his Honour’s reasons that it was common ground that the Supreme Court “has an inherent power to restrict the publication of its judgments, including on the internet”: [2018] NFSC 5 at [9].
101 At the time of the primary Judge’s decision, s 169 of the Criminal Procedure Act 2007 (NI) provided as follows:
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.
That section, self-evidently, was not the source of any power to make an order that a judgment “not be published”. It is a section which simply creates an offence. The source of power relied upon before the primary Judge was (presumably) not s 169 but rather an “inherent power” possessed by the Supreme Court as a superior court.
102 Given the basis upon which the Application proceeded before the primary Judge and the findings made, it was unnecessary for his Honour to resolve with any degree of precision any question as to whether the Supreme Court had an “inherent power” to prohibit the publication of judgments and the extent of any such power. The primary Judge concluded that the “primary basis” of the Director’s Application was to be rejected. His Honour concluded that there was no contravention of s 169 and (presumably for that reason) there was no occasion for the exercise of any “inherent power”. It would appear that this was the reason why his Honour merely directed the Registrar to “request” that there be redactions in the judgments published online. The “request” made was to further protect the identity of the complainant.
103 Before this Court on appeal there remained a regrettable lack of certainty in the Director’s submissions as to the source of the power now sought to be invoked to found any order that the judgments “not be made available for publication on the open source internet”. But that lack of certainty may presently be left to one side.
104 Of present (and continuing) relevance are the findings made by the primary Judge for the purposes of dismissing the Director’s Application. These findings, of course, are findings made through the prism of s 169 and are directed to the question of whether there was information in either of the earlier two judgments which constituted “a reference or allusion from which the complainant’s identity might reasonably be inferred”.
105 When considering whether the earlier two judgments tended to disclose the complainant’s identity, the primary Judge observed:
[27] The Director emphasised that s 169 of the Criminal Procedure Act extended to prohibiting the publication of “a reference or allusion from which the complainant’s identity might reasonably be inferred”. It was submitted, by reference to authority in relation to analogous statutory provisions in other jurisdictions, that a breach of s 169 will occur “wherever there is publication of material describing the victim, sufficient, when added to knowledge already possessed by members of the community, to enable identification”: Channel Seven Adelaide Pty Ltd v Stockdale Hall [2005] SASC 307 at [11]. It should be noted that most of the cases concerning contravention of provisions similar to s 169 of the Criminal Procedure Act concern publications by the media. The statements made in those cases must be approached and considered in that context.
[28] The difficulty for the Director, however, is that neither of the judgments contain any references or allusions from which the complainant’s identity might reasonably be inferred. Nor do they contain information concerning the complainant which, taken together with information which had been proven to be already possessed by members of the community, was sufficient to enable identification.
The primary Judge then proceeded to consider each of the “six categories of information” identified by the Director as tending to identify the complainant and concluded:
[38] Despite being willing to recommend that some of the information contained in the judgments be redacted from the published versions of the judgments, I should reiterate that I categorically reject the contention that the six categories of information identified by the Director in support of her application, considered individually, collectively or cumulatively, contain references or allusions from which the complainant’s identity might reasonably be inferred. Nor do the categories of information relied on by the Director provide any support or justification for the Director’s contention that the judgments should not be “published publically, including on the internet”, because they tend to reveal the complainant’s identity.
106 When addressing whether the judgments should be removed from the internet to “avoid further embarrassment to the complainant”, the primary Judge concluded:
[40] The Director’s contention that the continuing availability of the judgments on the internet will cause unwarranted embarrassment and trauma to the complainant has no merit and provides no proper justification in the circumstances for removing the judgments from the internet.
Reasons for that conclusion were then provided. In respect to this consideration, the primary Judge ultimately concluded:
[50] In all the circumstances, I am not satisfied that there is any real risk or likelihood that the continuing availability of the judgments on the internet will cause any further embarrassment, let alone trauma, to the complainant. Even if there was such a risk, it is a very small and speculative risk and, in the particular circumstances of this case, I am satisfied that the public interest in open justice, and the importance of sentence judgments being open and available to public scrutiny, weighs heavily in favour of allowing the judgments to remain publicly available on the internet.
107 When addressing whether the availability of the earlier judgments on the internet would “deter victims from communicating with the police”, the primary Judge concluded:
[56] It follows that the Director’s suggestion that there is some risk that the publication might deter people on Norfolk Island from communicating or cooperating with the police provides no sound basis for removing the judgments from the internet. It is a suggestion that is not soundly based, and not demonstrated by the evidence. If anything, the circumstances are such that publication of the judgments might in fact encourage those members of the community who have expressed a reluctance to come forward in the past to change their attitudes. That is a manifestation of the public interest in open justice.
108 The primary Judge ultimately concluded:
[66] I have, in this case, endeavoured to strike the correct balance. I have seen no evidence to suggest that I have failed in my endeavours. I do not consider that the information contained in the judgments reveals the identity of the complainant. There are no references or allusions from which the complainant’s identity might reasonably be inferred. I am also not satisfied that the availability of the judgments on the internet is likely to cause any further unwarranted embarrassment or trauma to the complainant, or is likely to deter future complainants or others from cooperating with the police on Norfolk Island. In relation to the latter two considerations, in my view, the public interest in open justice well outweighs any risk that the publication of the judgments might have those adverse effects.
The source of power to order that a judgment not be published?
109 It is by reference to these findings that this Court on appeal is invited to make the order sought by the Director that the judgments “not be made available for publication on the open source internet”. Potential uncertainty as to what is meant by the phrase “open source internet” can be left to one side.
110 Of central relevance to the resolution of the appeal is the source of power to make the order sought – until that source of power is identified, the requirements or criteria by reference to which the power may be exercised cannot be identified. The touchstone for any exercise of power remains uncertain.
111 The source of the power of the Supreme Court – or this Court on appeal – to make such an order is, with respect, not self-evident.
112 Given the conclusions reached by the primary Judge, however, it is unnecessary to conclusively resolve the question. It is nevertheless considered that:
the common law, being the source of any “inherent power” of a superior court, is an uncertain source of power;
and that:
the “rules of court … of the Supreme Court of the Australian Capital Territory”, to the extent that such Rules are “picked up” by s 19(4) of the Supreme Court Act 1960 (NI), do not confer power.
Such power as is conferred is to be found (if at all) in:
sections 37AF and 37AG of the Federal Court Act, being powers “picked up” by ss 19(5) and (6) of the Supreme Court Act.
Each of these propositions should be briefly examined.
113 First, such power as is conferred by the common law is a power generally confined to those present in court and does not extend to “conduct outside the courtroom”: John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476 to 477. McHugh JA (as his Honour then was) there observed (Glass JA agreeing):
The power to make orders binding outside the courtroom:
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more than is “necessary to enable it to act effectively within” its jurisdiction. Courts have no general authority, however, to make orders binding people in their conduct outside the courtroom. Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the courts. An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative — not judicial-power. Nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court. But the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice and not because he was bound by the order itself.
These observations were cited with approval by Spigelman CJ (Handley JA and M W Campbell AJA agreeing) in John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324 at [81], (2004) 61 NSWLR 344 at 363. They have also found favour in New Zealand: Erceg v Erceg [2016] NZSC 135 at [17], [2017] 1 NZLR 310 at 317 per Elias CJ, William Young, Glazebrook, Arnold and O’Regan JJ.
114 More recently, in Hogan v Hinch [2011] HCA 4, (2011) 243 CLR 506 (“Hogan”), French CJ put the common law power into context as follows (at 530):
The open-court principle
[20] An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.
(Footnotes omitted.)
The Chief Justice continued (at 532):
[22] It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings.
[23] The existence and nature of the common law or implied power in a court to make orders restricting the publication of proceedings in open court has been the subject of considerable judicial exegesis. The question whether the power extends to orders purporting to bind the world at large is contentious.
(Footnote omitted.)
Albeit not expressing a “concluded view” the more confined extent of the power conferred by the common law was endorsed by French CJ as follows (at 534):
[26] In my opinion the better view is that there is inherent jurisdiction or implied power in limited circumstances to restrict the publication of proceedings conducted in open court. The exercise of the power must be justified by reference to the necessity of such orders in the interests of the administration of justice. Such an order may be made to and bind the parties, witnesses, counsel, solicitors and, if relevant, jurors and media representatives, or other persons present in court when the order is made, or to whom the order is specifically directed. It is not necessary for present purposes to reach a concluded view on the full extent of the power in relation to the general public.
In reliance upon the observations of French CJ in Hogan (at para [20]), Mortimer J has said that the “principle of ‘open justice’ allows the public to know accurately what and who is the subject of the court’s proceedings, in order to ensure the maintenance of public confidence in the fair operation of the courts”: Castle v United States [2018] FCA 1079 at [17].
115 Such “inherent power” as a superior court may have, with respect, seems to stop well short of prohibiting publication of a judgment and reasons for decision which have been published in open court. Indeed, to contemplate the making of such an order would seem to run contrary to the cherished objective of open justice. Whatever power there may be to publish a judgment in a redacted form so as to protect the identity of (for example) a witness (e.g., Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53), it remains questionable whether the common law or the “inherent powers” of a superior court extend to the making of an order restricting the further publication of a judgment and reasons once published in open court.
116 Second, s 19 of the Supreme Court Act provided as follows:
Rules of court
19. (1) The Chief Justice may make rules of court, not inconsistent with this Act, regulating the practice and procedure of the Court, and prescribing all matters and things necessary or convenient to be prescribed for carrying out or giving effect to this Act or for the conduct of the business of the Court.
(2) Notice of the making of a rule of court made under subsection (1), shall be published in the Gazette.
(3) A rule of court is a disallowable instrument for the purposes of section 41A of the Interpretation Act 1979.
(4) Until, in relation to a matter or class of matters, rules of court are made by the Chief Justice, under subsection (1), the rules of court for the time being in force of the Supreme Court of the Australian Capital Territory in relation to that matter or class of matters shall, so far as applicable and mutatis mutandis, be the rules of court of the Supreme Court.
(5) Where provision in respect of a question of practice or procedure is not made by this Act, the rules of court or by any other law in force in the Territory, the practice of the Federal Court of Australia in its original jurisdiction applies.
(6) In this section, “practice and procedure” includes matters relating to ––
(a) the attendance of witnesses;
(b) the custody or bail of accused or convicted persons; and
(c) the enforcement and execution of judgments.
117 With reference to s 19(4), the only provision of the Court Procedures Rules 2006 (ACT) which was relied upon as a potential source of power to make the order sought in the present case was r 1600(1), which provides as follows:
1600 Orders—required by nature of case
(1) On the application of a party to a proceeding, the court may, at any stage of the proceeding, make any order that the nature of the case requires.
Other than referring to this provision, no further assistance was given to this Court as to the manner in which (for example) that rule has been interpreted and applied by the Supreme Court of the Australian Capital Territory or the manner in which any like provision found in other rules of court has been interpreted. This rule has nevertheless apparently “given rise to problems of interpretation in the past”: Kaney v Rushton [2017] ACTSC 11 at [102] per Refshauge J. Whatever those problems may be were not there explained. But such a general conferral of power to “make any order that the nature of the case requires”, it is respectfully concluded, is not the source of any power to otherwise confine the established common law and statutory principle of the open administration of justice, especially to make orders restricting publication of a judgment and reasons for decision already published in open court.
118 Third, it is not self-evident that the reference in s 19(5) of the Supreme Court Act to “the practice of the Federal Court” extends beyond a reference to the “practice or procedure” or the “practice” of the Federal Court as to the manner in which Judges of that Court make directions or orders as to the conduct of a proceeding or the application and operation of the Federal Court Rules 2011 (Cth). It is not self-evident that s 19(5) of the Supreme Court Act confers on the Supreme Court the same statutory discretion as is conferred by ss 37AF and 37AG of the Federal Court Act or that the manner in which this Court exercises that discretion is to inform the manner in which the Supreme Court is to exercise it. On one view, s 19(5) of the Supreme Court Act fits more consistently with the power conferred by s 59 of the Federal Court Act for Judges of the Court to make rules “for or in relation to the practice and procedure to be followed” in the Court. Albeit not defined in an exhaustive manner, the definition of “practice and procedure” set forth in s 19(6) of the Supreme Court Act would seem to support a narrower construction of what falls within that phrase rather than a broader construction.
119 Even if ss 37AF and 37AG were “picked up”, a further question would arise as to whether those sections would permit an order that an entire judgment “not be made available for publication on the open source internet” as opposed to a more confined order identifying the non-publication of particular “information”. Even if those sections did permit the making of such an order prior to (for example) a judgment being published in open court, a further question would arise as to whether those sections would permit the orders now sought where the judgments have already been published in open court.
120 Subject to expressing those reservations, it may nevertheless be noted that s 37AF provides as follows:
Power to make orders
(1) The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b) information that relates to a proceeding before the Court and is:
(i) information that comprises evidence or information about evidence; or
(ii) information obtained by the process of discovery; or
(iii) information produced under a subpoena; or
(iv) information lodged with or filed in the Court.
(2) The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
Section 37AG provides as follows:
Grounds for making an order
(1) The Court may make a suppression order or non-publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice;
(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c) the order is necessary to protect the safety of any person;
(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.
Sections 37AF and 37AG were inserted by statutory amendment in 2012. Section 50 was, in turn, deleted by those amendments.
121 It was s 50 which was the subject of consideration in Hogan v Australian Crime Commission [2010] HCA 21, (2010) 240 CLR 651. At the relevant time, s 50 provided 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.
French CJ, Gummow, Hayne, Heydon and Kiefel JJ there observed as follows (at 663 to 664) with respect to s 50 and the word “necessary”:
The construction of s 50
[29] It has been assumed, no doubt correctly, that an order made under s 50 of the Federal Court Act may be made until further order and, in any event, may be vacated if the continuation of the order no longer appears to the court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. As a general proposition, a court remains in control of its interlocutory orders and a further order will be appropriate, for example, where new facts and circumstances appear or are discovered, which render unjust the enforcement of the existing order.
[30] As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish [(1980) 43 FLR 129 at 133] that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.
[31] It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.
[32] If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the Court is to implement its conclusion by making or vacating the order. The expression in s 50 “may … make such order” is to be understood in this sense.
[33] It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a “discretion” when entertaining an application under s 50. Once the court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the court to be necessary to make an order to prevent prejudice to the security of the Commonwealth.
(Footnotes omitted.)
There is no reason to construe the term “necessary” as now employed in s 37AG in any different manner: Giddings v Australian Information Commissioner [2017] FCAFC 225 at [25] per Collier, Flick and Charlesworth JJ. An order may not be made, accordingly, where it is simply “convenient, reasonable or sensible” to make an order. See also: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 at [19] to [21] per Perram J.
The findings made – the absence of any basis upon which an order should be made
122 The reason why it is unnecessary to express any more unequivocal view as to the source of any such power as is vested in the Supreme Court to make an order of the kind now sought by the Director is that, on any view, the findings made by the primary Judge dictate a conclusion that there is no error in the Orders made by the primary Judge in July 2018.
123 Those findings dictate a conclusion that the Orders made by the primary Judge were appropriate, irrespective of whether the touchstone to be applied is:
section 169 of the Criminal Procedure Act and that orders should be made with the objective of ensuring the publication of judgments (whether by the Court or others) does not contravene that provision,
or by reference to:
the “inherent jurisdiction or implied power” of the Supreme Court as a superior court and the making of orders which are necessary “in the interests of the administration of justice” (cf. Hogan [2011] HCA 4 at [26], (2011) 243 CLR at 534 per French CJ); or
section 37AG(1)(d) of the Federal Court Act and the making of orders that are “necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature”.
124 Albeit approaching the analysis of the available evidence from the standpoint of s 169 of the Criminal Procedure Act, the primary Judge:
concluded that neither of the earlier two judgments “contain any references or allusions from which the complainant’s identity might reasonably be inferred” (at para [28]);
rejected a contention that the categories of information relied upon by the Director “considered individually, collectively or cumulatively, contain references or allusions from which the complainant’s identity might reasonably be inferred” (at para [38]);
concluded that the contention that the continued availability of the earlier two judgments on the internet would “cause unwarranted embarrassment and trauma to the complainant” was a contention without merit (at para [40]);
was satisfied that there was not “any real risk or likelihood that the continuing availability of the judgments on the internet will cause any further embarrassment, let alone trauma, to the complainant” (at para [50]); and
concluded that any suggestion that the publication “might deter people on Norfolk Island from communicating or cooperating with the police” was a suggestion which was “not soundly based, and not demonstrated by the evidence” (at para [56]).
It was the culmination of these findings which led the primary Judge to be satisfied that the availability of the judgments on the internet was not likely “to cause any further unwarranted embarrassment or trauma to the complainant, or … likely to deter future complainants or others from cooperating with the police” (at para [66]).
125 The same findings lead to the conclusion that the Orders made by the primary Judge were not made in error, irrespective of the source of power to make an order that a judgment not be published or published only in a certain manner.
CONCLUSIONS
126 The present proceeding has two disturbing undercurrents, namely:
the fact that the application seeking to limit the availability of the judgments and reasons comes only after the judgments and reasons have been published in open court and some considerable time after publication; and
the fact that the order sought by the Director deliberately seeks to confine the means whereby the judgment and reasons can be accessed online – the order sought expressly contemplating that the judgments and reasons would remain available to be accessed through paid subscription services or (perhaps) by approaching the Supreme Court directly but would not be accessible on free, publically available internet databases.
The former presents fewer concerns than the latter. It may be accepted that there may well be circumstances in which an application to suppress judgments and reasons may be made after the handing down of judgments and reasons in open court. Even a belated application may remain one that seeks to ensure the proper administration of justice. It may well be that it is only after a judgment and reasons have been read with some degree of care that the prudence of making an application emerges for consideration.
127 But the prospect of confining the publication of a judgment and reasons such that they are available to be accessed by one means but not by another is troubling. It has the potential to make a judgment and reasons available to one category of persons but not another. On the Director’s approach, no matter how well intentioned, interested persons with access to the LexisNexis or Westlaw AU databases would be able to peruse the judgment and reasons of the primary Judge; but a person who relies exclusively upon freely accessible legal databases – such as the Federal Court website or AustLII – would not have access. On such an approach, courts would be potentially susceptible to scrutiny by persons more likely to be lawyers who have access to and familiarity with LexisNexis or Westlaw and other like services but less susceptible to scrutiny by the general public. Without more, such a consequence does not seem to promote “open justice” at the hands of “anybody”, and while permitting “professional scrutiny” of the courts, is likely to significantly inhibit “public … scrutiny”: cf. Hogan [2011] HCA 4 at [20] to [22], (2011) 243 CLR at 530 to 532 per French CJ.
128 Court proceedings would accordingly, on such an approach, be “open” to some but potentially not others. The judgments and reasons of the courts would potentially be subjected to the scrutiny of only some segments of the public: cf. Castle v United States [2018] FCA 1079 at [17] per Mortimer J. Why that should be so, and by reference to what principles any such decision to restrict access should be made, remained issues unexplored in the present proceeding. Such issues may well be informed by changing technology and the new sources from which judgment and reasons may be accessed. Such issues have certainly not been canvassed in the existing authorities, which seem to have proceeded upon a perhaps outdated understanding of the means of accessing judicial reasons. Long gone are the days which predated the very existence of this Court when unreported judgments of the Supreme Court of New South Wales were only available to be accessed in typed form in records held by the Law Society of that State.
129 The primary Judge was certainly given no assistance on such issues; nor was this Court any better assisted by the submissions made.
130 It is perhaps regrettable that there is not a more certain source of power on such an important and fundamental question as the power of the Supreme Court to make orders suppressing evidence or protecting the identity of either parties or witnesses to a proceeding before it.
131 On the facts of the present case, however, the primary Judge was correct in dismissing the Director’s Application.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. |
Associate:
Dated: 29 January 2019
