Principles
19The balancing exercise required by s 130, or under the common law principles of public interest immunity, requires consideration of a number of established principles, particularly principles of open justice and of a fair trial. There was no real dispute about matters of principle upon the hearing of the application. There was, however, considerable debate about their application in cases in which the Crown has sought in some form to suppress the identity of witnesses.
20Principles concerning open justice and a fair trial were succinctly set out by Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344:
[17] As often happens in a context involving fundamental principle, two such principles are in conflict and a judgment must be made as to which principle is to prevail in the circumstances. The principle of open justice and the principle of a fair trial each inform and energise many areas of the law, as I have sought to show in extra-judicial addresses. (See, J J Spigelman, "Seen to be done: the principle of open justice" (2000) 74 Australian Law Journal 290, 378 and J J Spigelman, "The truth can cost too much: the principle of a fair trial" (2004) 78 Australian Law Journal 29.)
[18] It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public. (See Scott v Scott [1913] AC 417 at 473; Dickason v Dickason (1913) 17 CLR 50 at 51; Daubney v Cooper (1829) 10 B & C 237; 109 ER 438 at 440; Russell v Russell (1976) 134 CLR 495 especially at 507 and 520-521, 532.) The taking of a verdict is something which occurs in the ordinary course of criminal proceedings. (See, for example, Coulter v The Queen (1988) 164 CLR 350 at 356, 357 and cf 359-360, 362.)
[19] It is also well established that the exceptions to the principle of open justice are few and strictly defined. (See, for example, McPherson v McPherson [1936] AC 177 at 200; R v Tate (1979) 46 FLR 386 at 402.) It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional constraints. (See, for example, Dickason (at 51); Russell (at 520); John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 158 FLR 81 at 93 [70]-[73].)
[20] The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. (See, for example, Attorney General v Leveller Magazine Ltd [1979] AC 440 at 450.)
[21] From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, for example, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D-E and 54G.)
[22] The principle of a fair trial has been characterised in numerous High Court judgments in the most forceful of terms. It has been described as "the central thesis of the administration of criminal justice": McKinney v The Queen (1991) 171 CLR 468 at 478; as "the central prescript of our criminal law": Jago (at 56); as a "fundamental element" or a "fundamental prescript": Dietrich v The Queen (1992) 177 CLR 292 at 299, 326; and as an "overriding requirement": Dietrich (at 330). It is not a new principle. As Isaacs J put it in 1923 with reference to "the elementary right of every accused person to a fair and impartial trial": "Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle": R v MacFarlane; Ex parte O'Flanagan & O'Kelly (1923) 32 CLR 518 at 541-542.
[23] There is no aspect of preparation for trial or of criminal procedure which is not touched by, or indeed determined by, the principle of a fair trial. As Lord Devlin once put it: "... [N]early the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their power to see that what was fair and just was done between prosecutors and accuseds": Connelly v Director of Public Prosecutions [1964] AC 1254 at 1347.
21It has been said that a fair trial does not mean a perfect trial, "free from possible detriment or disadvantage of any kind or degree to the accused": Jarvie v Magistrates' Court of Victoria [1995] 1 VR 84 at 90. There is powerful authority for this proposition: Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23; R v Glennon [1992] HCA 16; (1992) 173 CLR 592; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.
22A fair trial is one that is fair to the accused but also to the Crown who prosecutes on behalf of the community: McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468 per Dawson J at 488; R v Lowe (1997) 98 A Crim R 300 at 318-319.
23In R v Wilkie; R v Burroughs; R v Mainprize [2005] NSWSC 794; (2005) 193 FLR 291, Howie J was concerned with the term "the interests of the administration of justice" in s 5B of the Evidence (Audio and Audio Visual Links) Act 1998. In this context he said the following about a fair trial:
[54] It has often been noted that the concept of a fair trial, which is embodied in s 5B(2), is not to be equated with a perfect trial. This was recognised in Ngo at [99]. The court quoted from Brooking J in Jarvie v Magistrates' Court (Vic) [1995] 1 VR 84 where his Honour stated that a fair trial did not mean a trial "free from possible detriment or disadvantage of any kind or degree to the accused". When considering the issue of whether an accused can have a fair trial, the court is concerned with whether the trial will be rendered unfair "when judged by reference to accepted standards of justice": Barton v The Queen (1980) 147 CLR 75 at 97. The "accepted standards of justice" take into account other interests and considerations that arise in respect of a prosecution of serious criminal offence, including the interests of the public generally, and witnesses and victims in particular.
24The need to protect witnesses must be balanced against unfairness to the accused. One critical question is what is demanded by the interests of justice. Confrontation of an accused person by prosecution witnesses is a fundamental right and the Court was reminded of it in the course of submissions. However, it is not an absolute one: R v Ngo [2003] NSWCCA 82; (2003) 57 NSWLR 55 at [118] - [119]; [121].
25In Ngo , the Court was concerned with an order made by the trial judge that two identification witnesses give evidence by audio-visual link and that the appellant not be permitted to see their images in court. The trial judge had been satisfied that the witnesses had fears of the appellant which were genuine and that they probably would not give evidence if required to do so in the courtroom in his presence. In construing the term "the interests of the administration of justice" in s 5B(3) of the Evidence (Audio and Audio Visual Links) Act 1998, the Court (Stein JA, Sully and Levine JJ) stated:
[124] ... The phrase, "in the interests of the administration of justice" is a broad one and not susceptible to precise definition. The particular context of the use of the phrase will provide assistance as to its content. In the subject context it must include the impact on the parties and the trial of making or not making the direction. This involves assessing the impact on the fairness of the trial for the accused. It also involves the issue of the fairness to the witnesses and to the Crown. There may be many things which can be said to be relevant to the interests in the administration of justice. Some will be interests of the accused, some of a witness, some of the Crown and some of the general community or the public interest in a fair and efficient system of criminal justice. However, what appears to be required is a balancing of these interests.
26The administration of justice is a continuous process and is not confined to the determination of the particular case at hand: BUSB v R [2011] NSWCCA 39 per Spigelman CJ at [28]. In the present case, the Commissioner's concern extends beyond the trial of the present accused to future proceedings which may involve similar circumstances. The submission was to the effect that if the Court declined to make the orders sought in this case, there would be a discouragement of witnesses providing information and agreeing to give evidence in similar cases in the future. The occasions are likely to be most rare, but it cannot be assumed that they will not occur.
27Orders have been made in the past that witnesses be identified by pseudonym: see, for example, R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331; Witness v Marsden & Anor [2000] NSWCA 52; (2000) 49 NSWLR 429.
28BUSB provides another example of witnesses being identified by pseudonym. It involved an allegation that the applicant shot at a police officer with intent to either murder, inflict grievous bodily harm or to avoid apprehension. The defence case was an acceptance that the applicant discharged the firearm but a denial of the intent, it being claimed that he did not "shoot at" the officer. The trial judge made orders in respect of a number of officers of the Australian Security Intelligence Organisation ("ASIO"), two of whom claimed to have witnessed the shooting. The orders included that they each be given a pseudonym and that they give evidence in such a way that the accused was prevented from seeing them. BUSB sought leave to appeal but only in respect of the screening order. The asserted need for the orders was partly because of concern for the safety of the officers and their families and partly for reasons associated with the ability of ASIO to perform its functions in relation to national security.
29In considering the manner in which the trial judge had exercised his discretion in making that order, Spigelman CJ said the following, which is equally applicable to the making of a pseudonym order:
[83] The overriding principle is the right to a fair trial. What degree of impingement upon that right arises from a screening order will vary from case to case.
[84] Furthermore, the prosecution, representing the community, is also entitled to a fair trial and, in that regard, can properly request steps for the protection of witnesses, including steps without which some witnesses would not be prepared to give evidence at all.
[85] Although the Acting Director's evidence in this case did not state that ASIO witnesses would be withdrawn, that evidence leads to the inference that, absent a screening order, ASIO could well be reluctant to co-operate in future cases. Understandably, prosecutors may not be prepared to enforce such testimony. As I have pointed out at [28] above, the administration of justice is a continuous process and the existence of a power must be assessed in that context, not only with respect to the facts of a particular case.
30On the "right" of an accused to be able to confront his accusers, reliance was placed by Mr Stratton SC, on behalf of the accused Menzies, upon R v Davis [2008] UKHL 36; [2008] AC 1128. He referred to the following from the judgment of Lord Bingham of Cornhill:
[5] It is a long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence. This principle originated in ancient Rome: see generally Coy v Iowa (1988) 487 US 1012, 1015; Crawford v Washington (2004) 124 S Ct 1354, 1359; David Lusty, "Anonymous Accusers: An Historical and Comparative Analysis of Secret Witnesses in Criminal Trials" (2002) 24 Sydney Law Review 361, 363-364.
31Professor Ian Dennis argues in The Right to Confront Witnesses: Meanings, Myths and Human Rights , [2010] Crim LR 255 at 257 that "the right may have been long established in the common law, as Lord Bingham maintained, but any idea that it has some unique or permanent special strength would seem to be a myth".
32Mr Stratton noted that in the United States, the right of an accused to confront his accusers was regarded as sufficiently significant to be incorporated in the Sixth Amendment to the Constitution: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him". One exception to this was noted by the Court in Ngo in its reference to Maryland v Craig 497 US 836 (1900). In that case the United States Supreme Court held that evidence received by way of one-way closed circuit television was not contrary to the Sixth Amendment.
33There is a discussion of the position in the United States in the article referred to by Lord Bingham, David Lusty, ' Anonymous Accusers: An Historical & Comparative Analysis of Secret Witnesses in Criminal Trials' (2002) 24 Sydney Law Review 361. It makes clear (at 375 - 385) that the Supreme Court has not definitively excluded witness anonymity in criminal prosecutions, but that there have been some strong statements suggestive of such exclusion. However, there were also some dicta in a concurring judgment in Smith v Illinois 390 US 129 (1968), per White J at 133-134, which, according to Mr Lusty, have been relied upon in many state and federal courts for the conclusion that the accused's general right to ascertain the true and complete identity of prosecution witnesses is not absolute and may be curtailed in some respects when disclosure would endanger the personal safety of a witness. It would seem, however, from Mr Lusty's article that this has, in the main, been limited to witnesses who were not "crucial".
34Mr Stratton referred to Lord Bingham's quotation (at [7]) from Smith v Illinois at 131:
In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is in issue, the very starting point in 'exposing falsehood and bringing out the truth' through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.
35It is one thing to refer to statements such as these. It is also necessary to relate them to the issues of the case at hand. Mr Stratton's submissions in opposition to the Commissioner's application at no point included any specific complaint about an inhibition of the ability to cross-examine the witnesses. As I have noted elsewhere, cross-examination of the "innocent bystander witnesses" in this case is expected to be concerned directly with the matters in issue. It is not expected to be concerned with matters of credibility. Mr Stratton did not suggest otherwise and nor did counsel for any of the other accused.
36Reference was also made by Mr Stratton to Lord Bingham's quotation from the judgment of Richardson J in the New Zealand Court of Appeal in R v Hughes [1986] 2 NZLR 129 at 148-149. Richardson J had referred to Smith v Illinois before observing, at 147:
Clearly the accused cannot be assured of a true and full defence to the charge unless he is supplied with sufficient information about his accuser in order to decide on investigation whether his credibility should be challenged.
37Then, in the passage at 148-149 to which Mr Stratton referred:
We would be on a slippery slope as a society if on a supposed balancing of the interests of the State against those of the individual accused the Courts were by judicial rule to allow limitations on the defence in raising matters properly relevant to an issue in the trial. Today the claim is that the name of the witness need not be given: tomorrow, and by the same logic, it will be that the risk of physical identification of the witness must be eliminated in the interests of justice in the detection and prosecution of crime, either by allowing the witness to testify with anonymity, for example from behind a screen, in which case his demeanour could not be observed, or by removing the accused from the Court, or both. The right to confront an adverse witness is basic to any civilised notion of a fair trial. That must include the right for the defence to ascertain the true identity of an accuser where questions of credibility may be in issue .
38I have italicised a portion of the last sentence of that passage in order to emphasis a link to the point I made above (at [35]).
39A note of caution was sounded in the submissions of Mr Bromwich as to applying overseas cases in a different statutory context. Such caution is, of course, appropriate. For example, there was a very swift legislative response in Britain to Davis , with such legislation having no parallel in Australia: see the discussion in the article by Professor Dennis referenced above (at [31]). Moreover, Mr Bromwich drew attention to the facts and issues of that case. The facts emerge at the beginning of Lord Bingham's judgment (at [1] - [3]). Davis was convicted for the murder of two men by gunshot in a flat in Hackney at 9.30am on New Year's Day after an all-night New Year's Eve party. He admitted that he had been at the party but claimed he had left before the shooting and denied being the gunman. Seven witnesses at the trial claimed to be in fear for their lives if it became known they had given evidence against Davis. Three of them were the only witnesses in the case who identified Davis as the gunman. They were described in the judgment of Sir Igor Judge P in the Court of Appeal as being "very good friends of the deceased": R v Davis; R v Ellis [2006] 1 WLR 3130 at [81]. It was noted by Lord Bingham (at [3]) that Davis could not have been convicted without the evidence of the three. Their claims of being in fear were accepted as genuine.
40In order to ensure the safety of the three witnesses, and to induce them to give evidence, the trial judge made a number of orders. They included that the witnesses give evidence under a pseudonym; that any identifying information be withheld from the appellant's lawyers; that the witnesses were to give evidence behind a screen so that they could be seen by the judge and jury but not the appellant; and that the natural voices were heard by the judge and jury but distorted so as to avoid recognition by the appellant.
41Illustrative of the difficulties the protective measures taken in respect of the witnesses caused for Davis' defence is the following from Lord Bingham's judgment:
[32] To decide whether the protective measures operated unfairly in this case it is necessary to consider their impact on the conduct of the defence. For that purpose it cannot be assumed at the outset that the defendant is guilty and all that he says false. The appellant denied that he was the gunman. Why, then, did witnesses say that he was? His answer, on which his instructions to counsel were based, was that he believed the false evidence to have been procured by a former girlfriend with whom he had fallen out. Mr Swift duly sought to pursue this suggestion in cross-examination of the unidentified witnesses, but was gravely impeded in doing so by ignorance of and inability to explore who the witnesses were, where they lived and the nature of their contact with the appellant. When, eventually, subject to the protective measures, a female witness was called whom the appellant believed to be the girlfriend it was at least doubtful whether she was or not, but this was a question that could not be fully explored. If the jury concluded that she was probably not the former girlfriend, they would also conclude that the defence had been based on a false premise. But this was an unavoidable risk if the defence were obliged, in the words of Lord Hewart CJ in a very different context ( Coles v Odhams Press Ltd [1936] 1 KB 416), to take blind shots at a hidden target. A trial so conducted cannot be regarded as meeting ordinary standards of fairness.
42His Lordship concluded (at [35]) that the protective measures hampered the defence in a manner, and to an extent, which was unlawful and rendered the trial unfair.
43One of the authorities referred to in Davis was R v Murphy [1990] NI 306. Murphy concerned a trial for the murder of two British army officers in Belfast. The prosecution adduced evidence from a number of television journalists who had filmed the scene of the killing. They were not identified by name and there was a screening order so that they could not be seen by the accused or the public.
44Some observations made about Davis and Murphy by Spigelman CJ and Allsop P in BUSB are useful to note. Spigelman CJ stated:
[52] In Davis the House of Lords accepted that the right [to confront accusers] was not unqualified. There were circumstances in which it could be qualified even at common law. Their Lordships did not doubt R v Murphy [1990] NI 306. (See Davis at [12], [53], [65], [73]). The contrast between Davis and Murphy is instructive. In Murphy the anonymous witnesses gave evidence about what they had filmed. The films were the relevant evidence. In Davis the testimony of the anonymous witnesses was decisive on the issue of guilt. This manifests the spectrum of significance of testimony.
45Spigelman CJ, in the context of considering the facts of the case at hand, also said:
[77] The relevant issue in dispute, which Mr Lange identified, was whether the accused did "shoot at" the policemen or whether he fired off a warning shot. Only two of the ASIO witnesses could give evidence about the act of shooting. It is not clear to me why the appeal concerns the other ASIO witnesses, about whom no specific submissions were advanced.
[78] Mr Lange emphasised that the accused was aware that he was under surveillance and, therefore, may be able to assist the cross-examiner by recalling where and when he had seen a witness. For example, he submitted that the accused could give instructions that a witness was not in the location where he asserted s/he was.
[79] There were, it appears, four eyewitnesses: two police officers and two ASIO officers. Mr Lange submitted that the ability to cross-examine two of them was impeded by the inability of the accused to see their faces.
[80] There are, I have no doubt, circumstances in which the degree of impingement upon effective cross-examination is of a high order. However, what is suggested here does not appear to me to be such.
[81] The only identified effect of the accused seeing the faces of the two ASIO eyewitnesses was the possibility that the accused's memory may be triggered about their ability to observe what they say they observed. I am not satisfied that the degree of impingement of effective cross-examination in the present case is of significance.
[82] I have referred above to the facts in Murphy and Davis. All but two of the ASIO witnesses in the present case are at the Murphy end of the spectrum. Two ASIO eyewitnesses can give significant evidence of the shooting, but it is corroborative rather than critical evidence. They are not at the Davis end of the spectrum.
46Spigelman CJ held that the trial judge's conclusion that the applicant was not disadvantaged by being unable to see the faces of the witnesses was one that was open to him. Hodgson JA, McClellan CJ at CL and Johnson J published short notes of concurrence with the Chief Justice. Allsop P also agreed but observed as to Davis :
[93] ... Whilst their Lordships accepted Murphy as an exception to the general rule that an accused is entitled to be confronted by and know his or her accusers, there was no endorsement of any principle of wider application that would permit a compromise of the fairness of the trial: see Lord Bingham of Cornhill at [12] and [27]-[32], Lord Rodger at [44], Lord Carswell of Eaton-under-Haywood at [53] and [59]-[60], Lord Brown at [64]- [65] and Lord Mance at [73]-[74] and [97]-[98]. Davis also raises questions as to the scope of the judicial power to make orders (without statutory foundation) that have the effect of reducing the fairness of the trial. Murphy can be easily seen as a case in which there was not a scintilla of unfairness or injustice, notwithstanding the importance of the connecting evidence of the cameramen. The lack of error demonstrated in the conclusion of the primary judge as to disadvantage makes it unnecessary to explore these questions in the context of balancing the demands of national security.
47Mr Bromwich's submission was, in effect, that Davis was a case very far removed from the present. It was a case involving protective orders made in respect of witnesses known to the accused, and in respect of whom credibility was very much an issue. Knowledge of the identity of the witnesses was, in those circumstances, at least potentially, central to effective cross-examination. It was submitted that the contrast was that cross-examination as to credibility was not, it would appear, an issue in the present case which was more at the Murphy than the Davis end of the spectrum that was discussed in BUSB . With no known knowledge or association between any of the witnesses and the accused, cross-examination will be concerned with issues of reliability. The identity of the witnesses, so it was submitted, will have no bearing upon this.
48Hughes was also distinguishable in Mr Bromwich's submissions. The issue was whether the trial judge was correct in requiring disclosure of the identity of an undercover police officer to whom it was alleged the accused had supplied drugs. The Solicitor-General sought that the New Zealand Court of Appeal should endorse a blanket rule that the identity of undercover police officers should not be revealed unless disclosure would help to show the defendant was innocent. This was, in effect, the rule that applied in the case of the identity of non-witness informers, although that rule has been expressed in terms of "could" rather than "would": see, for example, D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218 per Lord Diplock. Richardson, Somers and Casey JJ held that the trial judge was correct in requiring that the officer reveal his name. The common theme in their separate judgments was that revelation of the officer's name was necessary in any case in which credibility may be in issue (Richardson J at 147; Somers J at 155; Casey J at 158).
49Cooke P and McMullin J were of the view that revelation of the officer's name need not be required if the trial judge is satisfied that there is really no substantial dispute as to the officer's evidence (145; 153). It may be necessary to receive evidence on the subject in order for the judge to be satisfied that there is such a dispute (145; 153). This, Mr Bromwich submitted, was a consideration that more closely corresponded with the balancing exercise that I am required to carry out pursuant to s 130 of the Evidence Act . There is also some support for this approach in the judgment of one of the majority judges. Casey J stated (at 158):
There may be cases in which such an inquiry [as to the witness' background] is seen to be irrelevant, in which event the Judge would be entitled to rule out the question, if necessary resolving any dispute under the normal voir dire procedure. This may happen if, for example, the accused made an unchallenged admission of the essential facts to be proved by the witness; or if the only reason for seeking his or her identity has nothing to do with credibility or the issues in the trial.
50Mr Stratton sought to characterise the Commissioner's application in the present case as being "no less sweeping" than that in Hughes . There is some validity in the contention that the application is "sweeping", and I will return to that, but the Commissioner is not seeking to establish a blanket rule as the Solicitor-General was in that case.