2 Initially the respondent had refused to release, either totally or in part, some 14 documents. Prior to the hearing, agreement had been reached in relation to the release of certain of those documents. At the commencement of the hearing, Mr Maher of counsel for the applicant, informed me that there had been a prior application pursuant to the provisions of the Freedom of Information Act by the applicant in relation to the same materials. In relation to that application, materials which have been claimed to be exempt from release in the present application had been released to the applicant. Mr Dragojlovic, solicitor for the respondent, had become aware at the commencement of the proceedings only that such an earlier application had been made. Accordingly, I agreed to stand the matter down whilst discussions were held by the parties to determine, in the light of the earlier application, what documents now remained in issue between them. As a result, after a short adjournment, the parties were able to inform me that resolution had been reached about release of all but 1 of the 14 documents previously in dispute.

3 Consequently, the only question with which the Tribunal was concerned was whether document number 3, being a brief of evidence running to 35 pages, in relation to a possible prosecution for the commission of sexual offences against children by one Monsignor Day, a Catholic priest, should be released to the applicant.

4 The objects of the Act are set out in Section 3 thereof. Pursuant to the objects of the Act the provisions are to be given an interpretation in favour of the release of materials in the possession of a party such as the respondent. Of course, the beneficial interpretation is not intended to override the specific provisions of the Act. Section 55 of the Act requires that the onus of establishing that the denial of the applicant's request was justified lies upon the respondent.

5 For obvious reasons, it is necessary that I express my reasons in a manner which does not reveal the detail of the information to be found in the documents. Clearly, if the applicant fails, my reasons should not provide him with the information he seeks. On the other hand, should I decide in favour of the applicant, an appeal might be rendered nugatory in the event that I indulged in unnecessary disclosure of information in the document.

6 Mr Dragojlovic has identified 18 separate parts to document 3. The first 3 parts, being 3 pages of written material, are the brief cover sheet, an index of statements and other materials and a recital of informations proposed to be laid, but which were not in fact laid, against Monsignor Day. The next part, consisting of 2 pages, is a report by Superintendent Duffy to the Chief Commissioner of Police, dated 10th January 1972. There are 2 further parts relating to records of two interviews with Monsignor Day. The remaining 12 parts consist of statements of various victims of the alleged sexual assaults by Monsignor Day.

7 The respondent, in seeking to maintain that document number 3 should be exempt from disclosure, has relied primarily upon Section 33(1) of the Act. It is in the following terms:-

"A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person)."

8 The respondent places secondary reliance upon the conjoint operation of the provisions of Section 38 of the Act and Section 4 of the Judicial Proceedings Reports Act1958.

"A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications."

10 Section 4 of the Judicial Proceedings Reports Act 1958 is worded thus:

(a) insert in a newspaper or other periodical publication; or

(b) disseminate by broadcast, telecast or cinematograph; or

other than for a purpose connected with a judicial proceeding;

"sexual offence" means an offence under subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I of the Crimes Act 1958 or under any corresponding previous enactment or an attempt to commit any such offence or an assault with intent to commit any such offence.

(1A) A person who publishes or causes to be published any matter that contains any particulars likely to lead to the identification of a person against whom a sexual offence, or an offence where the conduct constituting it consists wholly or partly of taking part, or attempting to take part, in an act of sexual penetration as defined in section 35 of the Crimes Act 1958, is alleged to have been committed is guilty of an offence, whether or not a proceeding in respect of the alleged offence is pending in a court.

(1B) If a proceeding in respect of the alleged offence is not pending in a court at the relevant time, it is a defence to a charge under sub-section (1A) for the accused to prove--

(a) that no complaint about the alleged offence had been made to a member of the police force before that time; or

(b) that the matter was published or caused to be published in accordance with the permission of--

(i) the Supreme Court, the County Court or the Magistrates' Court granted on an application by a person; or

(ii) the person against whom the offence is alleged to have been committed.

(1C) If a proceeding in respect of the alleged offence is pending in a court at the relevant time, it is a defence to a charge under sub-section (1A) for the accused to prove that the matter was published or caused to be published in accordance with the permission of that court granted on an application by a person.

(2) Any person who is guilty of an offence under sub-section (1A) is liable, if a corporation, to a penalty of not more than 50 penalty units and, if a person other than a corporation, to a penalty of not more than 20 penalty units or to imprisonment for a term of not more than four months or to both such penalty and imprisonment.

(3) Where a corporation is guilty of an offence against this section any person being a member of the governing body or being a director manager or secretary of the corporation shall severally be deemed to have committed the offence and shall be liable to the aforesaid penalty or imprisonment or both unless he proves that the offence by the corporation took place without his knowledge or consent.

(4) No prosecution for an offence under this section shall be commenced by any person without the sanction of the Director of Public Prosecutions."

11 No oral evidence was led by either party. A bundle of correspondence was tendered by the applicant, being letters running between the applicant's solicitor and the respondent. Each party delivered written contentions and, those contentions were supplemented by short oral submissions.

12 The 12 victims from whom statements were taken asserted that the late Monsignor Day had sexually assaulted them during a period running from roughly 1960 to 1970.

13 Prosecutions were considered, but, by reason of a lack of corroboration of the complaints of each of the victims, the legal advisor of the day to the respondent, advised that, as the priest would be entitled to separate trials in relation to each victim, the lack of corroboration made convictions unlikely. This advice was referred to the Solicitor-General, and he expressed his agreement with it. He delivered an opinion on 17th April 1972, which opinion has been released to the applicant, in which he stated:

"I trust that the authorities in the Church will realise that the decision not to prosecute does not arise from any conviction that the allegations are unfounded. Having regard to the similarities of the various accounts, there would appear to be little doubt that Day misconducted himself."

14 At the time when the police inquiries into the complaints were being conducted in 1971, the applicant was then a serving police officer and he had a significant part in the investigations which occurred. He was then subordinate to Detective Sergeant Barrett, who had charge of the investigation.

15 For reasons which may or may not be sound, the applicant felt that the investigation by Barrett and, at higher police levels, had not been thoroughly and objectively conducted. There is no doubt that he thought the evidence supporting successful prosecutions was strong and was aggrieved by his superior's recommendation that prosecutions not be pursued. As a result he resigned from the Force during 1972. It would appear that he has continued to live in the Mildura district.

16 It was asserted by the applicant's solicitor, in a letter dated 9th February 2004 to the respondent, that the request pursuant to the Act was made for the purpose of instituting legal proceedings. Mr Maher did not resile from that position.

17 I was told by the parties that both Monsignor Day and Detective Sergeant Barrett have died in the intervening period since 1972.

18 The respondent contended that its refusal to disclose the documents was one well founded under Section 33(1) of the Act. There was no debate concerning the assertion by the respondent that each of the parts of document 3 contained information relating to the personal affairs of the priest and the 12 victims. The respondent contended that the information sought to be obtained by the applicant is information of an extremely personal and sensitive nature which relates to allegations of sexual assaults by the priest upon each of the victims. In support of the submission that disclosure would be unreasonable, the respondent asserted that the public disclosure of the materials in document 3 would cause considerable distress to the individuals involved, their families and friends.

19 Further, the respondent relied upon Section 38 of the Act, with its conjoint operation with Section 4 of the Judicial Proceedings Reports Act and submitted that the document was an exempt document because its publication, or publication of any part of it, was likely to lead to the identification of a person against whom a sexual offence is alleged to have been committed.

20 The applicant submitted that, having regard to the release of all other documents sought by the applicant, there was no sound warrant for the refusal to release document 3. There was a refusal earlier by the respondent to protect the priest's name and identity from release. However, the respondent had ultimately accepted that such release was justified. Accordingly, Monsignor Day's name and identity are now clearly in the public domain, the applicant says. Mr Maher assured the Tribunal that the applicant is not seeking access to any document containing the name or any other means of identification of any of the alleged victims. In answer to the respondent's contention that it would be grossly unfair to release the contents of document 3, the applicant submitted that it was not against the public interest, and indeed was in the public interest, that the documents be released to allow a full and informed public debate and discussion on the important issue of child sexual assault and abuse by the clergy. The applicant put it that the public interest contention does not allow the Tribunal to determine that disclosure would be unreasonable. In that regard it pointed to the fact that more than 3 decades have passed since the allegations were investigated. They were allegations of repeated sexual assaults over at least a decade up to 1970. In the light of the publication of the priest's name in the other documents released to the applicant, there is no basis for relying upon the contention that the interests of Monsignor Day's next of kin, if any, need to be protected.

21 As I have said, neither party addressed oral argument to me concerning the conjoint operation of Section 38 of the Act and Section 4 of the Judicial Proceedings Reports Act. Further, the applicant did not seek to argue that I was entitled, pursuant to Section 4(1B) of the Judicial Proceedings Reports Act, as a County Court Judge, to give permission for the publication of document 3.

22 Insofar as Section 33 of the Act is concerned, it is, as I have said, clear that document 3 contains information relating to the personal affairs of a number of persons. The question then which arises for determination is whether, in the circumstances, the disclosure of that information would be unreasonable in the circumstances.

23 Even though a period in excess of 30 years has passed since the statements by the victims were made, it seems to me that disclosure in a form which might identify them, or any of them, would be unreasonable. In making this observation, I acknowledge the force of the applicant's submission that the victims, or at least some of them, might welcome the publication of their complaints and feel vindicated by such publication. However, as the views of the victims are unknown, I am unable to accept and act upon that submission. However, that is not the end of the matter because the applicant has given the assurance to the Tribunal that he does not seek unedited disclosure. He accepts that disclosure should be done after editing so that the means of identification of the victims or any of them does not arise. Section 25 of the Act makes provision of this kind for editing, when it speaks of access being granted to a copy of a document with such deletions as to make the copy not an exempt document. It seems to me that, as long as I can be satisfied that deletions can be made appropriately to eliminate the risk of identification of any victim, then it is not unreasonable in the circumstances for the information to be disclosed. However, it seems to me, to be appropriate to deny release to the applicant of the third part of document 3 being the proposed informations, which as I have pointed out were not laid against Day. The release of this part would, in my view, be unreasonable in the circumstances. Save as aforesaid I direct the release to the applicant of document 3.

24 Provided such deletions can be made as I have recited above, it is clear that no breach of Section 4 of the Judicial Proceedings Reports Act will arise. In Penhalluriack v Department of Labour and Industry (unreported) Victorian County Court, 19 December 1983, Judge Lazarus said (at pp.45/46):-

"Section 33(1) ought to be regarded as giving rise to a question whether in all the circumstances, after taking into account and balancing all interests involved, there would be a disclosure of information as to a person's personal affairs which is properly to be characterised as unreasonable. In this connection what may be called the censorship power conferred by Section 25 may be of great importance. Quite clearly where invasion of privacy is concerned, deletion of names and other identifying particulars or references might quite simply render the document no longer invasive."

25 I respectfully adopt what was said by Judge Lazarus. It seems to me that in no sense can the various parts of document 3 be said to be invasive if the appropriate deletions are made.

26 My concluded view is that, insofar as the disclosure of document 3 relates to the personal affairs of the victims, disclosure is not unreasonable, provided that appropriate editing is made to ensure that the names and identities of the various victims be not revealed. At this point I shall refrain from making any final orders in the matter. It seems to me the appropriate way to deal with the matter is to stand it down for sufficient time for Mr Maher and Mr Dragojlovic to work together to make the appropriate deletions to each of the parts of document 3. If necessary, I shall make an order under Section 56(3) of the Act to enable Mr Maher to inspect the documents, upon appropriate undertakings being given by him. This cautionary step is necessary, lest the respondent seek to appeal against this decision.

27 Once the editing process has been concluded, the matter can be further mentioned before me so that final orders might be made.