X v Y [2000] NSWSC 951

New South Wales Supreme Court

CITATION : X v Y [2000] NSWSC 951 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3402/93 HEARING DATE(S) : 7 August 2000 JUDGMENT DATE : 7 August 2000

X (P) PARTIES : Mrs Y as Adminstratrix of Estate of Late Mr Y (1D) Lawhouse Pty Ltd (2D) Registrar General (3D) JUDGMENT OF : Hamilton J

J Van Aalst (P) COUNSEL : C J Stevens QC and P Newton (1D) No appearance (2 & 3D) Hardings (P) SOLICITORS : Philip J Beazley (1D) No representation (2 & 3D) CATCHWORDS : PROCEDURE [81] - Supreme Court procedure - Jurisdiction and generally - Other matters - Proceedings in absence of public - Discretion of court - Protected witness party in civil proceedings. LEGISLATION CITED : Supreme Court Act 1970, s 80(b) Witness Protection Act 1995, s 26(1) CASES CITED : T v F (1999) FLC 92-845 DECISION : Order that proceedings be held in private and non publication order.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

MONDAY, 7 AUGUST 2000

3402/93 X v Y

JUDGMENT - (See transcript page 125)

HIS HONOUR:

1 In this matter I have made orders that the proceedings be held in private and for the non-publication of various matters associated with the proceedings. The reason for this is that Mrs Y, the first defendant is a participant in a witness protection program. The mother, father and brother of the plaintiff in these proceedings were murdered by Mr Y, Mrs Y's husband. He was convicted of those murders and subsequently died in prison. Mrs Y gave evidence against him at his trial for murder and that is what has led to her participation since 1993 and on an ongoing basis in a witness protection program. Before I made the orders I was given an assurance by Mr Stevens, of Queen's Counsel for the first defendant, that he was informed by a relevant police officer that Mrs Y was still a participant in a witness protection program. Since the making of the orders that officer has given evidence before me in closed court which confirms the above facts and confirms that the reason for Mrs Y's continuing participation in the program is that there is still fear for her safety and that of her children should their identity and whereabouts become known. 2 Whilst I am one of the strongest advocates of proceedings being conducted in public in the interests of justice, that must on occasion yield to necessity. The provisions of the Witness Protection Act 1995 ("the WPA") indeed compel the holding of these proceedings in private unless the Court determines that the interests of justice require otherwise. I am certainly not prepared to make any such determination on the evidence before me. The Court also has power under s 80(b) of the Supreme Court Act 1970 ("the SCA") to order the hearing of proceedings in private when a public hearing could defeat the ends of justice. In this case, in my view, justice requires a hearing in private, because the presence of the public at the hearing could defeat the ends of justice. The interest of justice that is to be protected is the willingness of people who may come under threat as a result of doing so being able to come forward and to give evidence in criminal proceedings, particularly criminal proceedings of the seriousness of those against Mr Y. 3 In my view, there is some little difficulty in the drafting of s 26 of the WPA. I should say that I take it that "that part of the proceedings that relates to the identity of the participant" in s 26(1)(a) refers back to both arms of the proceedings referred to in the preceding portion of subs (1), ie, the part of the proceedings in which "the identity of a participant is in issue" and the part of the proceedings in which "the identity of a participant ... may be disclosed". In the short time available to me I have not been able to find any judicial consideration of the construction of s 26 of the WPA. There was some discussion of the corresponding Commonwealth scheme contained in the Witness Protection Act 1994 (Cth) in the Full Court of the Family Court in T v F (1999) FLC 92-845, but not in any way that assists in the construction of the provision relevant to these proceedings. However, it is my view that the requirement should be taken as extending to both arms in subs (1). 4 In my view these proceedings fall within s 26(1) of the WPA. It is also my view that they fall within s 80(b) of the SCA. Since almost all the evidence will in some way tend to identify the first defendant and her children in my view the only practicable course is to order that the whole of the proceedings be conducted in private. I propose that the order for the conduct of the proceedings in private be made under the provisions of the WPA s 26, also under the SCA s 80(b), and also in the exercise of the inherent jurisdiction of the Court. That is to ensure that there is the most ample basis of power for the making of the various orders that I propose to make and also the most ample body of sanctions available if there be any disobedience of these orders. 5 It was only this morning that the parties faced the problems raised for the conduct of this litigation by Mrs Y's past and continuing participation in a witness protection program. The Court, although aware that she had received witness protection earlier, was also unaware that that protection was continuing until the matter was raised in Court this morning. Part of the problem that follows from the late raising of the matter is that the publication of the identity of the parties has not been protected on earlier appearances in these proceedings before the Court and, indeed, the matter has been listed under the names of the parties up to today. As well as ordering that the proceedings be heard in private, I propose to order that there be non-publication of any information obtained as to the names of the parties and of any police officer associated with any relevant witness protection program. I also suppose to suppress publication of the fact that a party to these proceedings is a participant in a witness protection program and the making of this order. In addition to the order that the proceedings be held in private, I propose to order that there be non-publication of the evidence in these proceedings. That is to make it plain that persons who are permitted to be or are necessarily in the courtroom during the hearing because of their connection with the case and who thus hear the evidence are bound not subsequently to cause it to be published. The question of what should happen about the final orders and about the Court's final reasons for judgment can, of course, await the appropriate time. 6 For the reasons that I have now given, I have already made the following orders: In the exercise of the Court's powers under the WPA, the SCA and the Court's inherent jurisdiction: (1) I order that these proceedings be held in private. (2) I order that there be no publication of: (a) the fact that a party to these proceedings is a participant in a witness protection program; (b) the names of any of the parties or of any police officer associated with the witness protection program; (c) the making of this order; and (d) the evidence in these proceedings. (3) I direct that for the purposes of listing the case be referred to as "X v Y". …oOo…