JOHN FAIRFAX & SONS LTD v DISTRICT COURT OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, Hope JA and RoGgERS AJA 18 August 1988, 18 August 1988 [1988] NSWCA 75 KEY WORDS: EVIDENCE — CRIMINAL LAW & PROCEDURE — PRACTICE — PRINTING & NEWSPAPERS — DECLARATORY RELIEF EVIDENCE — Prohibition of publication of evidence — principles applicable — District Court judge in criminal proceedings in open court says that "no names are to be published" interpretation of statement — whether an order — whether authorized by s578, s578A of Crimes Act 1900 or otherwise — held: Not an order to attract prerogative relief for excess of jurisdiction — declaration made that not an order. CRIMINAL LAW & PROCEDURE — Sexual offences — reference to name of victim — legislative embargo (578A Crimes Act) — meaning of section — no necessity for order for section to apply — section extends to identifiers and not just name of victim PRACTICE — Standing — application for prerogative-type relief and declarations — alleged suppression order by District Court judge in criminal trial — whether newspaper has standing to challenge order — held: Newspaper has standing. John Fairfax & Sons Ltd v Police Tribunal of New South Wales & Anor (1986) 5 NSWLR 465 applied. PRINTING & NEWSPAPERS — Non publication order — need for care and caution in judicial statements which might have the effect of inhibiting free speech and coverage of what takes place in the courts of law. The King v Hamilton (1930) 30 SR (NSW) 277; Attorney-General v Leveller Magazine Ltd & Ors [1979] AC 440, 468; Raybos Australia Pty Ltd & Anor v Jones (1985) 2 NSWLR 47, 57; and B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440, 454 referred to. DECLARATORY RELIEF — Criminal proceedings — whether available to clarify statements of District Court judge which might be considered an order and which might inhibit free speech unless corrected — held: Declaration available even though prerogative relief is not. The Church of Scientology Inc & Anor v Woodward & Ors (1982) 154 CLR 25, 70 considered. Anderson v Attorney- General (1987) 10 NSWLR 198 applied. Crimes Act 1900, s578, s578A. Kirby P The claimant, which is the publisher of a number of newspapers, including the Sydney Morning Herald, moves the Court for orders in the nature of the prerogative writs of prohibition and certiorari and for declarations, arising out of an alleged order made by Herron DCJ on 8 August 1988. The parties and the standing of the claimant. The claimant sought this relief by a summons which was returned before the Court earlier in the week. The Court expedited the hearing which has taken place today. It is appropriate to proceed immediately to judgment. The relief sought by the claimant concerns what it apprehends to have been an order made by Herron DCJ suppressing the name, inter alios, of a person who was accused and convicted on two counts of sexual assault with acts of indecency upon the same young woman at Lord Howe Island on 23 April 1988. The person so convicted is the third opponent to the claimant's summons. At the request of the Court he placed written arguments before the Court. Quite properly, he has indicated that he is content to accept whatever conclusion the Court may feel is required by the interests of justice in the case. 2 UNREPORTED JUDGMENTS The first opponent, the District Court of New South Wales, has submitted to the orders of the Court. The second opponent, the Attorney General, has contested the orders and declarations sought by the claimant in the summons. He asserted that what Herron DCJ did, did not amount to an order, whether under s578 or s578A of the Crimes Act 1900 or otherwise. The standing of the claimant to seek the relief which it has sought by the summons has not been contested. The claimant's standing was upheld by this Court in John Fairfax & Sons Ltd v Police Tribunal of New South Wales & Anor (1986) 5 NSWLR 465 in, analogous proceedings involving an order made by the Police Tribunal. It was held there that if there had been an excess of jurisdiction, and if that was the basis of the prerogative relief claimed, the claimant would have the standing to seek that relief. Mahoney JA in that case also suggested that the Court would have a discretion to grant declaratory relief, even if some more conventional relief was available. His Honour followed in this regard the remarks of Brennan J in The Church of Scientology Inc & Anor v Woodward (1982) 154 CLR 25, 70. No relevant distinction has been drawn for this purpose between the District Court and the Police Tribunal. It is therefore appropriate to approach the matter on the basis that, although not a party in the proceedings below, John Fairfax & Sons Ltd has the standing to secure the relief which it seeks in this Court. The issues to be determined. In deciding whether that relief should be granted it is necessary to determine a number of further questions. They are substantially the same as those which were identified by the Court in the Police Tribunal case. They are: 1. Was any order made by Herron DCJ? 2. If so, was the order made without jurisdiction, as distinct from it being made upon an error of law committed by the judge within jurisdiction? 3 If so, what relief should be afforded by the Court? 4 Even if the answer to question (1) or (2) or both (1) and (2) is in the negative, is it nevertheless appropriate in the circumstances of the case for the Court to provide a declaration to the claimant, as it seeks? The facts of the offences. The circumstances preceding the events before Herron DCJ can be stated briefly. The third opponent, who is fifty-three years of age, is an elder of a church which operates a recreational camp on Lord Howe Island. The island, which is part of New South Wales, has a close knit community supplemented by a regular flow of tourists attracted there by the unique flora and fauna of the island. The third opponent was alleged to have committed the offences upon a girl, fifteen years of age at the time of the offences, but now sixteen years of age. It was alleged that on a short boating trip the third opponent touched the girl's breasts. Later, on the same trip, he touched her vagina through her swimming costume. He was originally charged under s61D and s61E of the Crimes Act. He eventually pleaded guilty to two offences under s61E of that Act. He was convicted of those offences. Herron DCJ deferred passing sentence upon the third opponent's entering into a recognizance in the sum of $1,000 to be of good behaviour for two years. According to material contained in newspaper reports which purport to summarise the proceedings in the committal hearing, no serious or lasting damage was done to the victim by the assaults. She claimed that she was affronted by the imposition upon her and to have had a previous encounter of a similar kind when she was eleven. This did not involve the third opponent. But UBMHN FAIRFAX & SONS LTD v DISTRICT COURT OF NEW SOUTH WALES (Kirby PB for the position of trust of the third opponent, his rank in his church and, perhaps, his prominence in the small community of Lord Howe Island, it is unlikely that this isolated and relatively minor incident would have attracted much concern or interest. But this was not to be so. As shown in the same extracts from the Sydney Morning Herald placed before the Court without objection, a full report of the committal proceedings on Lord Howe Island appeared in earlier editions of that newspaper. No order had been made by the magistrate conducting the committal proceedings whether under s578 or s578A of the Crimes Act or otherwise, which resulted in the suppression of the name of the third opponent. He was named in those reports. His age and his address were stated. So was his connection with the church, and full details of the offences as set out above. Also stated in these accounts of the committal was character testimony given by the former premier, Mr NK. Wran, by a former judge of the Supreme Court, Mr CLD. Meares, and others. Each of the witnesses spoke of the third opponent's good character and his contribution over many years to the life of the Island. Mr Meares even described this contribution as being "more than that of any other living person". The transcript of the record at first instance. This statement of the background facts brings me directly to what occurred before Herron DCJ. The proceedings occurred in open court. At first, no transcript of the proceedings was available to the parties. Apparently in accordance with the procedure proposed by the Court in Builders Licensing Board v Mahoney (1985) 5 NSWLR 96, 100, the claimant placed before the Court a copy of the contemporaneous shorthand notes of its journalist, Mr Daniel Moore, together with a transcription of those notes. The shorthand record had been taken by Mr Moore during the hearing. The Court was invited to act upon the consequent transcript. Relevantly it stated: "Crown Prosecutor: Seeking a non-publication order. His Honour: No names are to be published in relation to the matter. Crown Prosecutor: Was only seeking that name of victim not be published. His Honour: The names of the people involved are not to be published. Because once you have a name published the other can usually be identified." Today, for the first time, the official transcript of the proceedings before the District Court became available. It was tendered by consent. In this briefer note, the following short passage appears at the opening of the transcript: "(Crown made application for non-publication of names.) His Honour: No names are to be published in relation to the matter." Despite the late appearance of the official transcript, the parties invited the Court to act upon the elaborated transcript as provided by Mr Moore. The course which I propose does not involve the provision of relief, prerogative in nature. Accordingly, it is not necessary in this case to determine whether it is permissible to elaborate the official record, assuming that the transcript is part of the "record" for the purposes of prerogative process. See Commissioner for Motor Transport v Kirkpatrick & Anor (1987) 11 NSWLR 427, 429, 450. I will proceed, as the parties have invited the Court to proceed, on the basis of the entirety of the evidence as stated by Mr Moore in his affidavit. In every material respect it is corroborated by the official transcript. It is, however, slightly more detailed. Provisions of s578A of the Crimes Act 1900. 4 UNREPORTED JUDGMENTS The first question is what is the proper classification of what Herron DCJ did for legal purposes. The claimant says that it was an order. It argues, therefore, that such an order shows an error of law and of jurisdiction on the face of the record. The Attorney General says that it was not an order but merely a passing observation by Herron DC having regard to the terms of s578A(2) of the Crimes Act 1900. It is necessary at this point to set out the relevant provisions of that section: "Section 578A (2) A person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. Penalty: In the case of an individual fifty penalty units or imprisonment for 6 months, or both; in the case of a corporation - 500 penalty units. (4) This section does not apply to - (a) a publication authorised by the Judge or Justice presiding in the proceedings concerned; (b) a publication made with the consent of the complainant (being a complainant who is of or over the age of 14 years at the time of publication); (c) a publication authorised by the Attorney General under s11 of the Children (Criminal Proceedings) Act 1987 in respect of a complainant who is under the age of 14 years at the time of publication; (d) an official law report of the prescribed sexual offence proceedings or any official publication in the course of, and for the purposes of, those proceedings; (e) the supply of transcripts of the prescribed sexual offence proceedings to persons with a genuine interest in those proceedings or for genuine research purposes; or (f) publication made after the complainant's death. (5) A Judge or Justice shall not authorise a publication under subs(4)(a) unless the Judge or Justice - (a) has sought and considered any views of the complainant; and (b) is satisfied that the publication is in the public interest. (6) The prohibition contained in this section applies in addition to any other prohibition or restriction imposed by law on the publication of any matter relating to prescribed sexual offence proceedings." The purpose of this provision is to avoid the inhibition which might otherwise operate upon the victims of sexual assaults, discouraging them from coming forward to complain to public authorities when the price of doing so would be that their names or other identifiers might be published, for example in the claimant's newspapers. Sexual matters tend to be regarded as highly newsworthy - not always for worthy purposes. The revelation of embarrassing or humiliating sexual assaults could discourage persons, such as the victims or their families, from bringing complaints to official notice and thereby bringing to account those guilty of such crimes. It may be inferred that this is why Parliament provided as it did in s578A by Act No 184 of 1987. The amendment followed an earlier like statutory provision enacted in England in the Sexual Offences (Amendment) Act 1976. Characterization of what the primary judge did. It will be observed that the section operates of its own force. It requires no order by a court. Provision is made in subs(3) and subs(5) for authorisation of publication in certain circumstances. However, no authorisation was sought or made by Herron DCJ in the present case and those subsections are irrelevant to UBMHN FAIRFAX & SONS LTD v DISTRICT COURT OF NEW SOUTH WALES (Kirby PB what his Honour did. Nor was any order made in the terms of s578 of the Crimes Act. That section deals not with the names of persons before the court or with identifiers of a complainant in cases of sexual offences, but with the forbidding of public reporting of evidence in certain circumstances. It does not appear, in the short passage in the reconstructed transcript, that Herron DCJ was addressing himself to that consideration. The Attorney General argues that the remarks of Herron DCJ did not constitute an order of the district Court. He says that his Honour's express concern was with identifiers of the victim and not with the non-publication of the name of the accused. The characterisation of what Herron DCJ did requires that the words his Honour used should be considered in their context. The elaborated and reconstructed record provided by Mr Moore shows that the Crown Prosecutor specifically sought a "non-publication order". To this extent what the Crown Prosecutor sought was a misconception, as the terms of sS78A(2) show. Did this misconception lead Herron DCJ into the error of making a purported order under the section, without jurisdiction? No jurisdiction is given by s578A to make such a prohibitory order. No other relevant statutory basis for the making of an order exists except s578 which appears neither to have been invoked nor used in this case. The Common law would not empower his Honour to make an order against the world for the non-publication of the name of any person related to the proceedings before him, at least in the circumstances of this case, where there had been prior publication of that name both in a newspaper and in the court list. Cf The King v Hamilton (1930) 30 SR (NSW) 277, 278; Attorney General v Leveller Magazine Ltd [1979] AC 440, 468; Raybos Australia Pty Ltd & Anor v Jones (1985) 2 NSWLR 47, 57. I do not consider that it is necessary, in the circumstances of this case, to decide whether the District Court has any inherent jurisdiction to make such an order, either in its own right as a court, or derived under s166 of the District Court Act 1984 from the powers formerly possessed by the Courts of Quarter Sessions. I do not take Herron DCJ to be invoking any such inherent power in what he did or said. The remarks were not an order. Looking at what Herron DCJ said it must be conceded that, taken in isolation his words "No names are to be published in relation to this matter" amount to emphatic and even imperative language They were repeated in the next intervention. However, they were then followed by the words, "Because once you have a name published the other can usually be identified." It is important to note that, in terms, the word "order" was not at any stage used by his Honour. This omission is not conclusive of the character of his words. However, in this respect the case is to be distinguished from what occurred in The Police Tribunal case. There, at p 467, the terms of the order made by the Tribunal are set out. It is clear that the Tribunal in that case purported to make an order with which this Court had then to deal. Especially by reference to the additional explanation In the last mentioned phrase use by Herron DCJ in this case, it seems to me that the words that his Honour used are equally consistent with an attempt by him to describe his perception of the effect of s578A(2) dealing with the non-publication of the names of complainants. If this be so, it should be said that the words used by his Honour appear to go beyond the terms authorized by the sub-section. 6 UNREPORTED JUDGMENTS S578A was not enacted for the protection of accused persons before criminal courts. Nor, for that matter was s578. Still less in the terms of the provisions enacted do the sections authorise a regime of secrecy in criminal proceedings in our courts. Least of all do the sections provide machinery for treating differently prominent and ordinary citizens when they come before the courts on criminal charges. The spectre of secret criminal trials is so antithetical to our system of justice that such a construction would not easily be accepted in respect of the language of s578A. Cf B v Medical superintendent of Macquarie Hospital (1987) 10 NSWLR 440, 454 and 459. On the other hand it is possible that in the circumstances of this case, having regard to the very small community in which the offence occurred, Herron DCJ was simply reminding the journalists in court, including Mr Moore, that the Act was not limited in its operation to the prohibition of the name of the victim. In this sense his Honour was right to point out that too narrow an interpretation of the section, as urged by the Crown Prosecutor with his reference only to the "name of the victim", was not what s578A provides. The mischief to which the section is addressed would in some cases be missed if the name of the victim were suppressed, but other identifiers, including the name of the accused, were published, and these pointed clearly to the identity of the victim. It is not at all uncommon in cases involving sexual offences in the nature of incest, whether by a natural or step-parent in a household in which the victim lives, for the name of the accused person not to be published. This is so because naming the accused will effectively name the complainant. That consideration was not, however, present in this case. The third opponent was no relation of the victim. The victim's name had not been published in earlier news items about the offence. Accordingly, although in a small community her name may have been spread by gossip and rumour, it was not otherwise linked to the third opponent by any report of what had occurred in court. It would be to overstate the effect of s578A, and to distort the sensitive balance of our law against the background of which that subsection is written, to accept an operation of s578A as of right, in the terms in which Herron DCJ expressed it. To that extent, I am inclined to consider that Herron DCJ may have mis-stated the operation of the subsection. By his statement "No names are to be published" and "the names of people involved are not to be published", his Honour appears to have contemplated a wider embargo on publication of the names of persons involved in the case than ever s578A contemplated. The foregoing still leaves the characterisation of what Herron DCJ did to be determined. Was it an order? Or was it a description of the operation of s578A, partly erroneous in the words used, at least when those words are taken in isolation? The position is not entirely clear. However, in the end I prefer the conclusion that what Herron DCJ said was not an order. It should not be readily imputed that a judge goes beyond jurisdiction. In the case of ambiguity it may more readily be inferred that the judge does not. The word "order" was not used by his Honour. The reference to names and the nature of the case before him suggest that he had s578A in mind. That section does not relevantly authorise an order. Accordingly, I prefer the conclusion that no order was given by Herron DCJ, or purportedly given, suppressing the name of the accused. There is, therefore, no basis for relief in the nature of the prerogative writs as claimed by the claimant in its summons. This conclusion removes the necessity to consider questions 2 and 3 in the issues stated above. UBMHN FAIRFAX & SONS LTD v DISTRICT COURT OF NEW SOUTH WALES (Kirby PY Should a declaration be made? The question remains whether a declaration should, nonetheless, be made. The claimant sought two declarations in its summons. The first was that it be declared that the District Court "was in error" in making the order. The second was that it be declared that the claimant "is at liberty to publish the name of the third opponent in connection with the proceedings before Herron DCJ". Having regard to the conclusion which I have reached that no order was made, the first form of declaration would be inappropriate. For reasons which I will shortly state, the second form of declaration is likewise unsuitable. An application was made before the Court today for an amendment of the summons to add a provision for a third declaration. This would, in effect, clarify the status of his Honour's remarks and would declare that what Herron DCJ had said was not, and did not purport to be, an order under s578 or s578A of the Crimes Act 1900 or otherwise. I have already pointed out that the question whether declaratory relief would be provided in cases such as the present was discussed by Mahoney JA in the Police Tribunal case at 470). His Honour there pointed out that such relief would not normally be provided if other relief were available. However, it might be availed of in an appropriate case. Mahoney JA pointed out that it was not appropriate to provide declaratory relief as a form of advisory opinion. In particular such an opinion would be inappropriate where subsequent proceedings, criminal in nature, might be affected. (See Police Tribunal case at 470, 471) The arguments against providing declaratory relief are those foreshadowed by Mahoney JA (above). The Court does not normally give advisory opinions, especially so far as concerns the criminal law or the law of contempt, which is criminal in nature. The view would normally be taken that the law should simply take its course in respect of any conduct which the claimant commits in breach of s578A or of his Honour's remarks if they attract the law of contempt. As well, it is undesirable that this Court should invade unnecessarily the functions of the criminal courts. By the same token, the remedy of declaration, although rarely provided in connexion with criminal charges or possible criminal proceedings, will be provided in the exceptional case. See Sankey v Whitlam & Ors (1978) 142 CLR 1, 25; Barton & Anor v The Queen & Anor (1980) 147 CLR 75, 104 and Anderson & Ors v The Attorney General For New South Wales & Ors (1987) 10 NSWLR 198. There are a number of reasons for providing relief in the present case. The first is that, as I have indicated, what his Honour did and said is, in some respects, confusing. In particular this is so in the width of the language in which his Honour stated that names should not be published. Secondly, the terms of his Honour's instruction, although not an order, might be considered to be an inhibition on freedom of speech in our community and on publication of an accurate report of the public proceedings of a court. It is implicit in the Leveller case that, where such directions could have the effect of misleading the public or members of the public, and thereby unduly diminishing free speech, courts such as this should correct what was said in order to ensure that those concerned are not misled and that free speech is not unnecessarily inhibited. See eg p 453. Thirdly, the claimant points out that it had, in editions of the Sydney Morning Herald before the statement of Herron DCJ was made on 8 August 1988, named the third opponent. It is concerned that the publication of its newspaper, the distribution of back copies or even their provision in libraries, might amount to 8 UNREPORTED JUDGMENTS a breach of the statement of Herron DCJ and render those concerned liable to proceedings for such breach, even though the claimant and others affected were not heard before that statement was made. The proper form of the declaration. A distinction can be drawn between a declaration of the kind originally sought in the summons (that the claimant is at liberty to publish the name of the third opponent) and one which sets at rest the nature of what Herron DCJ did. It is this matter which has been the subject of the argument before us. I would not provide a declaration in the form which the claimant originally sought in its summons. To do so would be to pre-empt the normal operation of the criminal law. That law should take its course under s578A in respect of what the claimant has done and anything further which it may do following this judgment. It is not for this Court by declarations to relieve the claimant, any more than anyone else, from the operation of the section which derives its authority from Parliament. However, because there has been some justifiable confusion in the effect of what Herron DCJ said, because that confusion initiated these proceedings and because, in some respects, I consider that what his Honour said went beyond the terms of operation of s578A, I consider that it is appropriate to provide a declaration. This should be made in the form that was ultimately sought by the claimant in its application to amend its summons. I would accordingly propose that the Court: Declare that what his Honour Judge Herron said on 8 August 1988 of and concerning these proceedings was not, and did not purport to be, an order under s578 or s578A of the Crimes Act 1900 or otherwise. Hope JA I agree. I would only add this. There is a very important public interest in knowing what goes on in courts, and the making of any order limiting or restricting the publication of what happens there requires careful deliberation. The present case is one where, on the conclusion that the Court has reached, comments were made by the learned trial judge about the effect of the law which seem to have left a newspaper, trying responsibly to carry out its duty both to the public and to the law, in a dilemma. Especially where, as in the present case, nobody is present to make submissions on the public interest in knowing what goes on in court, judges should be very careful and hesitate long before making comments of this kind. Rogers AJA I agree in the orders proposed. There has been no occasion in my view to consider the scope of s578A(2) and I expressly refrain from so doing. The question of what is published in a newspaper in relation to sexual offences has been dealt with by Parliament. As at present advised, I would consider any question arising under the section as one strictly of construction and not to be approached with any particular predilection to interpretation. It is unfortunate that the Crown Prosecutor had not drawn his Honour's attention to the provisions of the section and made an application that may have resulted in confusion. However, it is clear, and I think it is fair to his Honour to say this, that all he was concerned to do was to protect the victim of the criminal offence. His concern did not, as was suggested, lie in hiding the offender behind a screen of secrecy. In the circumstances of the particular case his Honour, being in possession of considerably more information than we have, expressed a view. Whether he should have refrained from so doing is a matter which, in all the circumstances, it is very difficult for us to express a view on because we just do not have the UBWHN FAIRFAX & SONS LTD v DISTRICT COURT OF NEW SOUTH WALES (RogerS AJA) information that he had. Be that as it may it did not operate as an order and it is fair to the claimant that it should be made clear that his Honour's remarks had no effect as an order but were designed in my view to alert anyone concerned to the coverage of s578A(2). (Counsel addressed on costs.) KIRBY P: The Court is minded to make no order as to costs as between the claimant and the Attorney General. As between the third opponent and the claimant, the third opponent will have costs as a submitting party as against the claimant. Otherwise there will be no order as to costs. The Court makes the declaration in the form which I have proposed. 1. Declare that what his Honour Judge Herron said on 8 August 1988 of and concerning these proceedings was not, and did not purport to be, an order under s578 or s578A of the Crimes Act 1900 or otherwise; 2. Order that the Claimant pay the Third Opponent's costs as a submitting party. Otherwise no order as to costs. COUNSEL for the claimant: SD. RARES / SRW. EMMETT COUNSEL for the 2nd Opponent: J. BASTEN Counsel for the 3rd Opponent: CD. WINTER (Sol) SOLICITORS for the Claimant: MALLESON STEPHEN JAQUES SOLICITORS for the 2nd Opponent: HR. ROBERTS (NSW CROWN SOLICITOR) Solicitors for the 3rd Opponent: TURNBULL & SHMITH