Supreme Court of New South Wales - Court of Criminal Appeal Decisions

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1 [Home] [Databases] [WorldLII] [Search] [Feedback] Supreme Court of New South Wales - Court of Criminal Appeal Decisions You are here: AustLII >> Databases >> Supreme Court of New South Wales - Court of Criminal Appeal Decisions >> 2005 >> [2005] NSWCCA 245 [Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help] R v KWOK, Daniel Sweeseang, R v ONG, Jenny Lai Chin, R v TAN, Raymond Aik Tong, R v YOE, Hosea Paryud Saputra [2005] NSWCCA 245 (15 July 2005) CITATION: R. v. KWOK, Daniel Sweeseang, R. v. ONG, Jenny Lai Chin, R. v. TAN, Raymond Aik Tong, R. v. YOE, Hosea Paryud Saputra [2005] NSWCCA 245 FILE NUMBER(S): 2005/1221, 2005/1222, 2005/1223, 2005/1224 HEARING DATE(S): 8 July 2005 JUDGMENT DATE: 15/07/2005 PARTIES: Regina - applicant Daniel Sweeseang Kwok - opponent Jenny Lai Chin Ong - opponent R. v. Raymond Aik Tong - opponent R. v. Hosea Paryud Saputra Yoe JUDGMENT OF: Hodgson JA Howie J Rothman J LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1261 LOWER COURT JUDICIAL OFFICER: Kelleman DCJ COUNSEL: Ms. W.J. Abraham QC with Mr. C. Ng for applicant/crown Page 1 of 14

2 Mr. M. Ierace SC for opponents SOLICITORS: Commonwealth Director of Public Prosectuions, Sydney for applicant Legal Aid Commission of NSW, Sydney for opponents CATCHWORDS: PROCEDURE DISTRICT COURT CRIMINAL LAW - Open justice - Non-publication orders - Whether District Court has power to make orders against the publication of names of alleged victims of the crime of causing another to be placed into sexual servitude - Whether analogous to categories of victims of blackmail and/or informers. LEGISLATION CITED: DECISION: 1. Appeal allowed. 2. Order refusing any non-publication order set aside. 3. Matter remitted to the District Court to be considered in the light of these reasons and such further evidence as may be provided. JUDGMENT: IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 2005/1221 CCA 2005/1222 CCA 2005/1223 CCA 2005/1224 HODGSON JA HOWIE J ROTHMAN J Friday 15 July 2005 REGINA v. KWOK, Daniel Sweeseang Page 2 of 14

3 REGINA v. ONG, Jenny Lai Chin REGINA v. TAN, Raymond Aik Tong REGINA v. YOE, Hosea Paryud Saputra HEADNOTE FACTS 1 The four co-accused are presently standing trial for conspiracy to cause various females to be placed into sexual servitude, pursuant to ss and 270.6(1) of the Criminal Code Act 1995 (Cth). The Crown proposes to call evidence from nine female complainants. 2 On 28 June 2005, the Crown successfully applied for a non-publication order in relation to the name and identity of the first female complainant. In making the order, the trial judge treated her as being in the category of an informer on the grounds that she subsequently became involved in the alleged conspiracy and is now serving a gaol sentence. 3 On 4 July 2005, the Crown s application for non-publication orders in respect of the name and identity of the other complainant witnesses was refused by the trial judge on the grounds that the District Court does not have the implied power to make the order sought, and that the matters raised in support of the application did not warrant the making of such orders. The Crown appealed under s.5f of the Criminal Appeal Act to the Court of Criminal Appeal, claiming that the rationale behind the implied power to make non-publication orders in categories of informers, blackmail and national security apply equally to the present case. HELD (per Hodgson JA, Howie, Rothman JJ agreeing): (1) The District Court has only an implied power to make a non-publication order in relation to a witness s name and identity where it is necessary for the administration of justice: John Fairfax v. District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344. (2) Although the exceptions to the principle of open justice are few and strictly defined, this category is closely analogous to categories already established, particularly blackmail. Without orders, victims would be discouraged from reporting the crime and giving evidence due to the risk of suffering shame and stigmatisation, thus promoting the success of the perpetrators of sexual servitude. (3) The principle of open justice is of central importance, but not absolute: the desirability of promoting the detection and prosecution of crimes of this nature justifies the small qualification of the principle, and the slight disadvantage that the defendants may be faced with. (per Howie J): (4) The significant distinction between making orders qualifying the principle of open justice in a particular case, as opposed to a category of cases, suggests that only when it is a matter of considerable moment will the court be prepared to widen the category of cases for orders that withhold information from the public. (5) New offences that attract similar public policy considerations to the established offences should Page 3 of 14

4 not be treated differently on the basis that the categories are closed. ********** IN THE COURT OF CRIMINAL APPEAL CCA 2005/1221 CCA 2005/1222 CCA 2005/1223 CCA 2005/1224 HODGSON JA HOWIE J ROTHMAN J Friday 15 July 2005 REGINA V. ONG, Jenny Lai Chin REGINA V. TAN, Raymond Aik Tong REGINA V. YOE, Hosea Paryud Saputra REGINA V. KWOK, Daniel Sweeseang Judgment 4 HODGSON JA: This is an appeal under s.5f of the Criminal Appeal Act from a decision of Kelleman DCJ on 4 July 2005, refusing an application made by the Crown for non-publication orders in relation to the names and identities of witnesses to be called in the course of a criminal trial in the District Court. 5 The four co-accused are presently standing trial on a single count in an indictment, alleging conspiracy to cause various females to be placed into sexual servitude, pursuant to ss.11.5 and 270.6(1) of the Criminal Code Act 1995 (Cwth). The Crown proposes to call evidence from nine female complainants. 6 On 28 June 2005, the Crown applied for a non-publication order in relation to the name and identity of the first female complainant. The trial judge made orders in the form requested by the Crown. That witness, although initially an alleged victim of the offence, subsequently became involved in the alleged conspiracy, and is serving a gaol sentence. The trial judge treated her as being in the category of an informer. 7 Before the Crown opened to the jury on 30 June 2005, informal arrangements were made with the media to withhold from publication the names of other female complainants who would be mentioned in the opening address, pending a formal application for publication orders after preparation of Page 4 of 14

5 affidavits. 8 On Monday 4 July 2005, the Crown made an application for a non-publication order in respect of the name and identity of each of the other complainant witnesses, supported by an affidavit of Federal agent Benjamin McQuillan. The trial judge refused that application, and it is from that refusal that the Crown appeals to this Court. THE AFFIDAVIT 9 The affidavit relied on by the Crown contained the following material: 6. This prosecution commenced as a result of 3 Indonesian females [...] reporting to the NSW Police and the AFP, that they had been deceptively recruited to travel to Australia to work in the catering or public relations industries, and upon arrival had been informed that they were in fact to be engaged in sex work, specifically the performance of 800 sexual acts, for no payment and pursuant to a "contract debt" of which they had no prior knowledge. They indicated to Police that they had decided that they were not prepared to undertake that sex work, and subsequently left the apartment where they had been housed, the home of the defendants Jenny Lai Chin ONG and Raymond Aik Tong TAN at 2/20 Northumberland Road, Auburn NSW, in the early hours of the morning of the 14 June Shortly thereafter they reported these matters to the Police, and the investigation of their allegations by the AFP has culminated in the current prosecution of the Accused ONG, TAN, KWOK and YOE. 7. This investigation took place in the context of the creation by the AFP, in 2003, of investigative teams in each jurisdiction referred to as Trans-national Sexual Exploitation and Trafficking Teams (TSETT). These teams were tasked to focus on the detection and investigation of offences such as Sexual Servitude and Slavery. 8. In parallel with this, the Commonwealth Government recognised that in order to allow the AFP and related Commonwealth Departments (such as the Department of Immigration and Multicultural and Indigenous Affairs [DIMIA] and the Commonwealth Director of Public Prosecutions [CDPP]) to appropriately investigate and prosecute such matters, a regime of welfare measures was required to care for and maintain the "victims" of the offences whilst such investigation and prosecution was undertaken. The aim of these parallel processes was to institute a "whole of government" approach to combating the international trade in women, specifically in relation to sex work. 9. This resulted in the delivery of a package of welfare measures for victims of Human Trafficking (specifically related to the sex Page 5 of 14

6 industry) by the Commonwealth Government, which commenced in the latter part of These welfare measures included in broad terms the following aspects: The implementation of a new regime of visas, administered by DIMIA, to allow "victims", where identified, to be assessed by the AFP, and where deemed appropriate, to remain in Australia subject to a class of Criminal Justice Stay Visa. This new Visa regime consisted of 3 broad classes, as follows: o An initial grant of a Bridging Visa Class "P for a 30 day period, to allow the AFP to make preliminary investigations as to the veracity of the claims made by the "victim", and determine the likelihood that an investigation would flow from the claims, and to allow the "victim" to decide if they would be prepared to remain in Australia to assist the investigation and if required, give testimony in Court. o If the "victim" was assessed by the AFP as providing valid information, likely to lead to an investigation and/or prosecution, and the "victim" was willing to stay in Australia to assist the investigation, a Criminal Justice (Victim of Trafficking) Stay Visa may be issued. This Visa is openended and remains in force until revoked at the request of the issuing agency (usually the AFP or CDPP). o If at the end of the investigation and/or prosecution, there are strong grounds to believe that the "victim" has provided significant assistance to the investigation and/or prosecution, and the "victim" would be at risk of significant personal danger if they were to be returned to their country of origin, then consideration can be given to the issuing of a Witness Protection (Trafficking) Visa. This Visa will allow the "victim" to remain in Australia, until it is assessed that any such danger has passed or diminished. The Witness Protection (Trafficking) Visa may be issued initially for up to 2 years on a Temporary basis, and if the danger is considered ongoing and unlikely to diminish, may be issued as a Permanent Visa. o Each of these Visas allows the holder to work whilst they remain in Australia. Upon having been assessed as being eligible to participate in the Visa regime outlined above, the "victim" then receives access to a Commonwealth-funded welfare programme. This includes, but is not limited to, the provision of, and assistance with finding, accommodation, income support (via Centrelink benefits), access to Federal Government services such as Medicare, assistance with obtaining employment, medical and psychological care and counselling, and access to educational programmes. This welfare programme is administered by the Commonwealth Office of Women (formerly the Office of the Status of Women). The contracted welfare provider is Southern Edge Training (SET), which has case managers located in each capital city of Australia. Each identified victim is allocated a Case Manager who will attend to their individual requirements. In addition, the Case Managers are also tasked to assist with requirements relating to the investigation and/or prosecution, such as attending meetings with the AFP and COPP, and support whilst giving evidence. 10. In relation to this prosecution, all of the above named witnesses, with the exception of [one] are currently participating in the welfare programme, and remain in Australia pursuant to Criminal Justice (Victim of Trafficking) Stay Visas. 11. It is submitted that the Non-Publication Order sought would assist in giving effect to the intention of the Commonwealth Government that persons who are identified as "victims" of these Page 6 of 14

7 offences are able to integrate and participate in the Australian community to the fullest extent possible. This is due to the stigma which would obviously attach, by the very nature of the conduct alleged in the prosecution case, to such victims - put simply, that they were sex workers or prostitutes. 12. It will become clear, through the course of the Crown case, that some of the complainant witnesses undertook sex work of their own volition, others were forced into performing such work, and others did not commence performing such work. The social ramifications of each of the complainant witnesses being identified as a sex worker (whether the sex work indeed occurred, was contemplated, or was refused) would be such as to cause them significant discomfort and possibly even a level of vilification and denigration as they attempt to form the vital community links envisaged by the Commonwealth Government's welfare and integration programme. 13. It is also likely that counsel for each of the Accused will cross-examine the complainant witnesses in a way which highlights their past activity as sex workers, and that this will be widely reported in the media. 14. Any publication of the names or identities of the complainant witnesses in this matter is likely to have severe and detrimental effects on their ability to participate in activities such as employment and educational opportunities within the community. Many of the complainant witnesses [...] have either obtained employment or are undertaking educational studies since they entered the programme. It may also be the case that they receive differential treatment in relation to access to accommodation, if their names and identities were to become associated with the performance of sex work. 15. In relation to each of the complainant witnesses, it is considered likely that the prospect of their name and/or identity being published and possibly the subject of media publicity will cause them to reconsider their willingness to testify in the trial. Each of the complainant witnesses is from a cultural and religious background where any association with sex work is deemed to be highly embarrassing and worthy of contempt. They are further disadvantaged by their lack, in most cases, of anything but the most basic English language skills. Despite the welfare programme outlined above, the majority of the complainant witnesses have few community support structures to deal with what could amount, in a realistic sense, to a public shaming. They also have distinctive and by Western standards unusual names, which poses a further problem in seeking any anonymity should adverse reports about their actual or contemplated activities be made. Page 7 of 14

8 16. It is recognised that any sexually based offences are difficult to investigate and prosecute. In the case of sexual servituderelated offences, these difficulties are compounded by numerous additional factors. These include the natural reticence of victims to come forward and speak openly with Police, fears held by the victims that their accounts will not be believed, and cultural factors particular to females from Asian countries, where in many cases females do not enjoy the social standing, or ability to exercise their rights and opinions, as do females from Western cultures. In many Asian countries, the Police are also viewed with fear and suspicion, or as a para-military arm of the government. Fears of reprisals by syndicate members both in Australia and in the country of origin are often held by the victims, and even if these fears were found to be ill-founded or over-stated, this certainly impacts on the willingness of the witnesses to come forward to provide assistance to Police. If such victims were to then be the subject of media reports or to be identified by name or photograph, it is reasonable to conclude that they would hesitate to make any complaint in the first instance. 17. The "complainant victims" in these investigations often have fears of reprisals by syndicate members against family members in their home countries, if their assistance to Police becomes a matter of public record. This can also be coupled with a desire to ensure that family members, partners or associates in their home countries never become aware of the type of work they were doing, or were forced to do, whilst in Australia. These considerations all demonstrate how difficult it is for these "victims" to come forward and assist in Police investigations. 18. Offenders of sexual servitude type-crime are such that they cannot be prosecuted in the absence of a victim, and usually the victim will be required to give extremely graphic evidence of their sexual encounters whilst performing the sex work. To have the prospect of such accounts being aired in the media, and attributed directly to them by name, will almost certainly discourage victims to assist in Police enquiries or to ultimately give testimony in court. 10 The affidavit then proceeded to give particulars concerning the circumstances of each of the witnesses. DECISION OF PRIMARY JUDGE 11 In refusing the application, the primary judge said he was not satisfied, first, that this Court has the implied power to make the order sought for non-publication of the names and identities of the nominated witnesses and secondly, that if the Court had such power that any of the matters contained in the affidavit filed warrants either independently or cumulatively the making of such orders. Accordingly, the application is refused. Page 8 of 14

9 12 The primary judge also referred to John Fairfax Publication Pty. Ltd. v. District Court of New South Wales [2004] NSWCA 324, 61 NSWLR 344, and said that the matters in the affidavit were not something that on its face falls within any of the well-established classes of cases where a nonpublication order is recognised as able to be granted, and were concerns that unfortunately frequently arise in cases concerning criminal activity. SUBMISSIONS 13 The Crown Prosecutor submitted that the non-publication order falls within the implied powers of the District Court to do what is necessary to enable the Court to exercise its jurisdiction effectively and secure the proper administration of justice: John Fairfax v. District Court at [28]-[37]. The implied power of the District Court to make such orders is well-established in relation to informers (Cain v. Glass (No.2) (1985) 3 NSWLR 230 at 246), extortion victims (R. v. Socialist Worker Printers & Publishers Ltd.; Ex Parte Attorney-General [1975] QB 637), and matters of national security (Attorney-General v. Leveller Magazine Ltd. [1979] AC 440). She submitted that the rationale and considerations supporting the implied power in the above categories apply equally to the nominated witnesses in the current case: these include the impediment to the future supply of information, the hardship suffered by the witnesses, and the denial of justice in the absence of such an order (see John Fairfax Group Pty. Ltd. v. Local Court of New South Wales (1991) 26 NSWLR 131 at 141, 161). 14 Mr. Ierace SC for the respondents submitted that the evidence given by the alleged victims clearly did not fall within the established categories, that the concerns in this case were speculative, and that the test of necessity was not satisfied, as the witnesses have not indicated that their testimony is conditional on the non-publication order. Since the exceptions to the principle of open justice are few and strictly defined (John Fairfax v. District Court at [19]), the Court should expand the list of exceptions only on rare occasions where it is absolutely necessary. The affidavit did not suggest prejudice to the complainants going beyond embarrassment to themselves, their family and employers, etc.: if that were to be treated as sufficient to justify a non-publication order, it would go against the well-established position that embarrassment does not justify, as a matter of necessity, the making of a non-publication order. He submitted that the making of such an order did affect the accused persons: it could give an impression to the jury unfavourable to the accused, and the prevention of the circulation of the names of witnesses in the public arena could deprive the accused persons of information helpful to their defence that they might otherwise obtain. DECISION 15 I accept that the only power in the District Court to make an order directed to non-publication of a witness s name is such power as may be implied as being necessary for the administration of justice: John Fairfax v. District Court. 16 However, the requirement of necessity is not to be given an unduly narrow construction. I respectfully adopt what was said by Mahoney JA in John Fairfax Group v. Local Court at 161: This leads to the consideration of what is meant by "necessary to secure the proper administration of justice" in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be Page 9 of 14

10 assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based. 17 There are recognised categories in which the publication of names may, as a matter of necessity, be prohibited, namely informers, victims of extortion and particularly blackmail, and where it is necessary for national security. The order actually made in the case of one witness in this case was made on the basis that she was an informer: although her identity was known to the accused persons, this witness was in prison and could be subject to victimisation in prison otherwise than through the knowledge of the accused, if it became known she was an informer. The primary judge accepted that this was sufficient to base an order, and distinguished her case from that of the other witnesses. 18 Mr. Ierace relied on the statement made by Spigelman CJ, concurred in by Handley JA and M.W. Campbell AJA, in John Fairfax v. District Court at [19], that it was well-established that the exceptions to the principle of open justice are few and strictly defined, and that the Court will not add to the list of exceptions. Mr. Ierace also referred to Spigelman CJ s reference at [48] and [49] to the limited categories of cases in which non-publication orders can be made, and submitted that this case was not in any of those categories. He conceded in that case Spigelman CJ then undertook the task of looking independently of whether the orders made in that case were justified by necessity; but submitted that the matter relied on in this case fell far short of what could justify the orders on that basis. 19 I accept that the Court will not freely invent new categories of cases, but in my opinion the Court may identify categories that, while not coinciding exactly with the existing categories, are very closely analogous to them and have the same rationale for the making of non-publication orders. 20 As indicated by par.9 of the affidavit set out at par.[6] above, the Commonwealth Government has taken unusual and significant steps to protect victims of this kind of crime, notwithstanding that they would otherwise be liable for deportation as illegal immigrants. Clearly, this is because it is considered that otherwise victims would be unlikely to report this kind of crime. The Crown contends that, in addition to fear of deportation, the perception of victims that they will be disgraced and ostracised if they report the crime is a further strong impediment to the detection and punishment of this kind of crime, and in that way supports and furthers the criminal activity of the perpetrators. 21 In my opinion, in this respect there is an extremely close analogy with the crime of blackmail, which is included in the categories referred to by Spigelman CJ in John Fairfax v. District Court at [49]; and in my opinion, it is appropriate to assimilate the newly legislated crimes associated with sexual servitude to the established category of blackmail. In both cases, victims will be discouraged from reporting the crime and giving evidence against alleged perpetrators because doing so will bring to light matter that could be considered damaging to the victim s reputation: in the case of blackmail, the discreditable information that is the subject of the blackmail, and in cases such as this, the Page 10 of 14

11 engaging in prostitution. However wrong it may be for people to think badly of another because that other has engaged in prostitution, particularly if this is under some kind of compulsion, I think the Court can recognise that there is a real danger that victims will fear that this will happen, and that this circumstance could be a powerful disincentive against victims coming forward, just as in the case of blackmail. 22 The assimilation of this kind of crime to the existing established categories is not primarily to protect the victims from shame or embarrassment, but is rather to reduce the disincentive upon victims against reporting such crimes and thereby to reduce the support given by this disincentive to this kind of criminal activity. 23 The situation is very different from a case where a witness to a crime is, at the time, engaging in some disgraceful conduct unconnected with the crime. It is not considered appropriate to give anonymity to witnesses in those circumstances, because it cannot be suggested that the withholding of anonymity in any way promotes the success of any particular type of crime. On the other hand, the success of the crime of blackmail is promoted by the victim s fear of publicity of some discreditable information; and the success of the crime of causing another to be placed into sexual servitude is promoted by the victim s fear of being stigmatised through publicity. 24 It is true that, until fairly recent statutory amendments, the considerations justifying nonpublication orders in relation to blackmail had not been considered sufficient to justify nonpublication orders in the case of sexual assault, even though it could be considered that the same kind of stigma and damage to reputation could follow for victims of sexual assault whose identities become widely publicised. Of course, that position has been now reversed by statute. In my opinion, the unwillingness in the past of common law courts to grant non-publication orders in such cases should not govern the result in this case. To my mind, the analogy with the victims of blackmail is closer, and operates more powerfully than the analogy with cases of sexual assault, where in any event the previous common law position has been overturned by statute. 25 The evidence in the affidavit relied on by the Crown is to a considerable extent hearsay and opinion evidence. The Crown has indicated that it is preparing further evidentiary material, and submits that the appropriate course, if the Court is of the view that the District Court has power to make a non-publication order and that the material in the affidavit is capable, if accepted, of supporting such an order, is to refer the matter back to the District Court to be considered further in the light of this Court s decision and such further evidence. 26 It is to be noted that s.75 of the Evidence Act 1995 permits hearsay evidence to be given in interlocutory proceedings, so long as the source is identified, and ss.78 and 79 do permit the giving of certain opinion evidence. Some of the material in the affidavit is about matters of which judicial notice could be taken, or as to which inferences could be drawn. It has not been suggested that this Court consider the affidavit in detail to determine to what extent the evidence is admissible. 27 In my opinion, the evidence in the affidavit, including that set out above, is capable of making out a case for non-publication orders in relation to at least some of the witnesses, and possibly all of them. Even if it is the case that some of the witnesses will be prepared to give evidence if their names are disclosed, and will suffer only embarrassment, it may be nevertheless appropriate to make a nondisclosure order in the case of those witnesses, because of the desirability of promoting the detection and prosecution of crimes of this sort, which will be aided if victims can have some assurance of anonymity. However, that will be a matter to be assessed by the judge making the decision on the basis of the evidence then available. Page 11 of 14

12 28 The Crown also submitted that there was an analogy with the category of informers. However, the identity of an informer is concealed generally in order that the accused and the accused s associates cannot take reprisals against the informer or the family or friends of the informer, and/or in order to protect the informer from victimisation in prison. The identity of these witnesses is known to the accused persons, and they are not in prison or themselves accused of any crime that could put them into prison. So I do not think the informer analogy operates strongly in this case. 29 The principle that justice must be done openly is of central importance, but it is not absolute and overriding in all cases. The qualification to that principle sought in this case is not a large one: cf. Witness v. Marsden [2000] NSWCA 52, 49 NSWLR 429 at [14]- [17]. If a non-publication order is made, the evidence of the witnesses will still be given in open court and their identity will be known to the accused persons. The disadvantages to the accused suggested by Mr. Ierace do not appear to be significant, but if the trial judge considers that they could be significant in this case, that is a matter that can be taken into account in deciding whether or not to make an order. 30 For those reasons, in my opinion the appeal should be allowed, the order refusing any nonpublication order set aside, and the matter remitted to the District Court to be considered in the light of these reasons and such further evidence as may be provided. The order made on 8 July 2004 will continue until either set aside or replaced by an order made by the District Court. 31 HOWIE J: I have the advantage of reading the judgment of Hodgson JA in draft. Generally I agree with the judgment of the Presiding Judge but I simply wish to make some brief additional comments. 32 Mr Ierace SC expressed a concern to the Court that I myself felt when first reading the material: if this application were allowed it may encourage prosecutors to seek, and judges to make, nonpublication orders in cases where the necessity for those orders to advance the interests of justice had not truly been shown. It is important in light of the material relied upon by the prosecution to stress that it is the interests of justice that lie at the heart of such an application and not the interests of a private individual, such as a witness or an accused. The decided cases have emphasised the value of open courts to maintaining public confidence in the administration of justice. Open justice encompasses the right of the media to fully and frankly report cases before the courts, even at the expense of the personal feelings of those involved in judicial proceedings, including the innocent complainant. 33 There is obviously a distinction between making orders that have the effect of diminishing the principle of open justice in a particular case because necessity requires it and determining in advance of a particular case that there is a type of offence that by its nature requires that, generally speaking, information arising from the prosecution of that offence be withheld from the public. Clearly it should be a matter of considerable moment before a court widens the category of cases where the balance of public policy considerations is tipped in favour of the withholding of information that is before the court from the public at large. It would be expected that, if there is to be any further inroad into the principle of open justice of a general nature, it should derive from the authority of parliament. 34 If this Court were not persuaded that it was necessary for the administration of justice to include the present offence amongst the categories of offences ordinary recognised as those where it is necessary to grant anonymity to witnesses, it would not follow that the District Court could not make the orders sought by the Crown. There is clearly power incidental to the functions of the trial court to make such orders as are necessary for the administration of justice in relation to particular witnesses. For example, if the court believed that there was a real risk to the safety of a witness were his or identity to be made public, the court could make an order suppressing publication of the witness s Page 12 of 14

13 name: Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429 at 144. I am not suggesting that on the material in the affidavit such an order should have been made as a matter of necessity in this particular case in relation to any of the witnesses. I am simply indicating that, even if the application were refused on the basis that the offence does not fall into a class in respect of which such orders might be made, it did not deprive the court of the power to make such an order if it were necessary in relation to any particular witness. 35 In the present case I was initially of the view that, had the need for anonymity of witnesses been as important to the successful prosecution of an offence of this nature as the Crown asserted and as was disclosed in the affidavit, Parliament would have ensured that there was in place a legislative regime to provide the court with power to preserve the anonymity of witnesses at least from the public in general. The Court was informed that the Federal Government had made provision for the rehabilitation into the Australian community of persons who are the victims of offences involving sexual servitude, such as the present. It was argued that the disclosure of the identity of the complainants to the public at large would put at risk those measures and, therefore, undermine the encouragement provided by the Federal Government to such persons to come forward without fear of deportation, the very event the fear of which, so it is said, kept the victims in servitude. 36 Parliaments in all Australian jurisdictions have taken steps to ensure that complainants in sexual assault offences receive anonymity, no doubt in order to encourage those persons to come forward by lessening the fear of public humiliation and degradation that might follow upon a complaint of that nature being revealed to the public at large. It would be a small step for the Federal Parliament to provide similar protection to complainants in cases such as the one presently before the District Court. We were informed that in a similar prosecution before the District Court earlier this year the complainants were protected by State provisions because some at least of the charges were for State offences falling within the scope of the protection given to complainants in sexual assault cases in this State. 37 However, notwithstanding that the Federal Parliament has not taken steps to ensure the anonymity of witnesses in this class of case it does not follow that this Court should not act if it believes that such anonymity is necessary in the administration of justice. Ultimately, and not without some hesitation, I have been persuaded for the reasons given by Hodgson JA that the Court should accept that the investigation and prosecution of this type of offence requires that the offence be treated in the same way as an offence of blackmail, an offence which has a similar characteristic to the present offence. That characteristic is the potential to harm the further investigation and prosecution of such offences because the divulgence of the name of the witness to the public in general may achieve, or be thought to achieve, the very result threatened by the alleged perpetrator of the offence, that is shame and the possibility of deportation. The Court should accept that there will be new offences created that attract similar public policy considerations as those applying in respect of the established categories of offences so that it would be illogical to exclude them simply on the basis that the existing categories are closed. 38 It also seems to me to be relevant that there is in place a discernable policy of the Federal Government designed to encourage victims of this sort of criminal activity to come forward and that policy would be enhanced by the making of the orders sought although that itself might not have been sufficient to justify adding this type of offence to the established categories. 39 Of course the finding that the District Court has power to make the orders sought does not mean that it should make them. However, a relevant consideration in the exercise of that discretion in the present case may be that the only orders sought are non-publication orders of the names of the witnesses, an interference with open justice that was described as minimalist by Heydon JA in Page 13 of 14

14 witnesses, an interference with open justice that was described as minimalist by Heydon JA in Witness v Marsden. The adding of the offence to the established category makes it clear that, on a prima facie level at least, that the court is justified in making the orders sought as being necessary to secure the administration of justice but it does not follow that the court must make the order in the case of each and every witness. 40 ROTHMAN J: I have had the advantage of reading the judgment in draft of Hodgson JA and I agree with the judgment and the orders proposed. 41 There are two quite distinct classes of exception to the rule that all proceedings are to be heard in public and able to be reported in full. The first class is the exception based upon considerations relating to the administration of justice in general. The second class occurs where specific considerations concerning a specific witness or person affects the administration of justice, e.g. where there are threats of violence. 42 In each class of case the central importance of justice being done in public requires that orders which implement such considerations be kept to the minimum essential to achieve that aim. In that way justice is administered openly to the extent possible. 43 For the reasons given by Hodgson JA this category, being witnesses who are victims of this offence, is within the first class as an exception, with informers and victims of blackmail, based upon general considerations relating to the administration of justice and whose identity should, in general, not be subject to publication. 44 Just as with victims of blackmail, the publication of their identity will further the criminal activity of the perpetrators and inhibit further victims from giving evidence and reporting crime. 45 Also, like blackmail, there may, from time to time, be exceptions to the general rule; for example, where the matters are otherwise within the public domain, but the general rule in this class is that when sought, a non-publication order would be granted. ********** LAST UPDATED: 10/04/2006 AustLII: Copyright Policy Disclaimers Privacy Policy Feedback URL: Page 14 of 14