Witness v Marsden & Anor [2000] NSWCA 52 | Case summary

Witness v Marsden & Anor [2000] NSWCA 52 | Case summary | Zoe

1 MASON P: I agree with the orders proposed by Heydon JA and with his reasons. 2 The application below was decided and the appeal to this Court was argued on the basis of weighing the private interests of the Witness against the private interests of the plaintiff and the public interests in open justice. 3 I am content to decide the appeal on that basis. However, it does appear to me that any decision concerning pseudonym orders involves an additional public interest factor. The interests of justice include the interests in securing relevant testimony. The grant of a pseudonym order in one case may encourage other similarly placed witnesses to come forward. This is a relevant factor (see Savvas (1989) 43 A Crim R 331 at 336-7, "Mr C" (1993) 67 A Crim R 562 at 564-5), although surprisingly it was not advanced as such by the Witness or the defendant. 4 PRIESTLEY JA: With full respect to Levine J, I think he came to a mistaken conclusion when he refused to make a pseudonym order upon the application of the Witness concerned in these appeal proceedings. 5 Two main elements in the mistake were, in my opinion, that insufficient weight was given to the evidence of the Witness of his fear of retribution in gaol if it became known that he had given evidence of the kind contained in his statement before the court, together with insufficient weight being given to the very real desirability of the Witness being able to give evidence to the court without fear, or with reduced fear, of that retribution affecting him when giving evidence. 6 As to the first element, the evidence given by the Witness in explaining and justifying his fear of retribution does not, at first sight, carry much weight with a lawyer. This is because it consists in large part of hearsay, that is, second or third hand accounts of what has happened to other prisoners in gaols, in situations not unlike those of the Witness. However, this evidence, upon fuller consideration, although hearsay, carries a ring of reality. It fits exactly with what has come to light in a series of cases over a number of years up to the present time. The terrible fact seems to be that in many gaols throughout Australia the people in charge are unable to guard adequately the safety of their inmates. 7 In the circumstances in which the Witness gave his evidence before Levine J, and in the absence of anything coming out in regard to it, either in cross-examination or otherwise, which could justify scepticism about the reality of the fears the Witness said he had, the trial judge had little option in my opinion but to accept that the Witness had real fears for real reasons. 8 This opinion strengthens my view about the second element. I accept the Witness's evidence that his fears make him most reluctant to give evidence. This underlines the importance of his evidence being given willingly because of the greater likelihood of willing evidence being more reliable than very reluctant evidence. 9 Heydon JA deals in detail with all the arguments put forward on behalf of Mr Marsden in opposition to this court coming to the conclusion which it has reached. I agree with Heydon JA's reasons for not accepting those arguments. 10 In the course of argument, counsel for Mr Marsden referred to the 1985 decision of this court in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47. In that case the court stressed the importance of the general rule of open administration of justice. What was there applied for was that neither the name of the defendant in contempt proceedings nor the name of his firm nor the names of any of his partners or employees be disclosed until further order of the court. The applicant was a professional man and the basis of the application was the damage the publication of his name might make to his reputation and that of his partners. The court was of opinion that these considerations were not strong enough to overcome the desirability of following the ordinary course that such proceedings should be heard wholly in public. 11 The court's attention was drawn to the fact that in Raybos I had said: " In the cases where I have seen secrecy powers used I have not been convinced that any usefulness the secrecy may have had outweighed the desirability of keeping such proceedings, conducted by public officials at public expense, fully open to the sight and hearing of the public. " (at 63) 12 I have seen little since 1985 to change that view. However, I made it clear in Raybos that what I said was not absolute. 13 I also said that there were other factors to be taken into account when dealing with secrecy applications concerning court proceedings. One of these was that the obligation of courts to do justice in particular cases carried with it full power in courts, "to do whatever is necessary to achieve a just result in a case before it", which power had to be used "with the most careful discretion" (at 63). 14 The making of the pseudonym order in the present case cuts down the openness of Mr Marsden's defamation proceedings in a very limited way. The court remains open. The Witness will give evidence in open court but under a name not his own. 15 In a long series of cases courts have treated informers as in a special category, usually requiring special protection: see for recent explanations of the position Cain v Glass (No 2) (1985) 3 NSWLR 230; Arthur Stanley Smith (1996) 86 A Crim R 309. 16 A person brought from gaol to give evidence such as that in the statement of the Witness in this case is more obviously subject to the same kind of dangers as the wider class of informer for whom courts have made the special rules referred to in Cain and Smith. The usefulness of pseudonym orders for such persons for the obtaining of material evidence in trials was concisely and clearly explained by Hunt J in Savvas (1989) 43 A Crim R 331. 17 In the present case it seems to me that the making of the pseudonym order asked for is likely to improve the chances of a just result being reached at the trial to an extent that significantly outweighs the small inroad the order will make upon the very powerful ideal of fully open trials. 18 I agree with the orders proposed by Heydon JA. 19 HEYDON JA: Background

Levine J is conducting a trial of defamation proceedings in the Common Law Division. 20 This is an application for leave to appeal in relation to what may neutrally be called the rejection by Levine J of a request by a person ("the Witness") whom the defendant wishes to call as a witness in those proceedings to be allowed to do so under a pseudonym. The Witness is the claimant. The plaintiff and the defendant in the proceedings are the first and second opponents respectively. Below they will be referred to as "plaintiff" and "defendant" respectively. 21 In the course of the proceedings, the defendant provided particulars of truth in support of the defence of justification. These are to be found in a document entitled "Amended Particulars of Truth Part 67 Rule 18". Paragraph 12 of that document concerned a person identified for the purposes of the proceedings as "D20". D20 is the Witness. Paragraph 12 alleges that when the Witness was 15, the plaintiff engaged in acts of homosexual intercourse with him. 22 On 1 May 1998 the Witness, then an inmate of a gaol in New South Wales, gave the police a Statement to the effect of paragraph 12 of the particulars. 23 On 24 February 1999, while the Witness was an inmate of a gaol in another State, the Witness signed a further Statement confirming the truth and correctness of the 1 May 1998 Statement. 24 On some date after 14 September 1999, the defendant provided to the plaintiff a document entitled "Particulars of Truth (Admissions) - Part 67 Rule 18" ("PTA"). That document stated that the defendant relied on certain facts, matters and circumstances as constituting admissions by the plaintiff of the substantial truth of certain of the imputations. Paragraph 10 stated that one of those facts, matters and circumstances was that the plaintiff instructed or directed, or knew of and acquiesced in, or facilitated a letter being sent to Mallesons Stephens Jaques, the solicitors for the defendant, by a certain person dated 14 September 1999 which informed Mallesons Stephen Jaques that the Witness was no longer prepared to talk to any person from or on behalf of the defendant. 25 On 7 March 2000 Mallesons Stephens Jaques as solicitors for the defendant wrote a letter to Phillips Fox, the solicitors for the plaintiff, indicating that in addition to the particulars contained in paragraph 10 of the PTA the defendant would also rely on the following matters: "1. The plaintiff (a) instructed or directed; or (b) knew of and acquiesced in; or (c) facilitated the provision of a statutory declaration dated 30 July 1998 by [a certain person] which contained false statements about [the Witness] and [the Witness's] dealings with officers from the Child Protection Enforcement Agency concerning the plaintiff. 2. The plaintiff obtained the said statutory declaration after a number of telephone calls had been made by [that person from a gaol] to the plaintiff and to the plaintiff's Bowral office between 23 March 1998 and 9 July 1998. 3. The plaintiff visited [that person in gaol] on 13 August 1998 and discussed the said statutory declaration with him. 4. On 17 August 1998 the plaintiff wrote to Superintendent J Hislop of the Child Protection Enforcement Agency enclosing a copy of the said statutory declaration. The letter contained false statements as to the number of times [that person] had contacted the plaintiff and the plaintiff's Bowral office while [that person] had been in custody at the [gaol in question]. 5. The plaintiff provided the said statutory declaration and the letter referred to in paragraph 4 above, to Superintendent Hislop for the purpose of discrediting [the Witness] and his testimony." 26 On 9 March 2000 Mallesons Stephen Jaques wrote a further letter to Phillips Fox. That letter said that in addition to the particulars contained in paragraph 10 of the PTA and the letter of 7 March 2000, the defendant would also rely on the following matters: "The plaintiff (a) instructed or directed; or (b) knew of and acquiesced in; or (c) facilitated the visit to [the Witness] at [a gaol by a solicitor. The solicitor] had in his possession a copy of the statement dated 1 May 1998 given by [the Witness] to the NSW Police Service ('Statement'). The Statement was given to [the solicitor] by the plaintiff. [The solicitor] told [the Witness] that he was representing John Marsden and that he wished to discuss the Statement with [the Witness]. [The Witness] refused to discuss the Statement with [the solicitor]. 2. The plaintiff (a) instructed or directed; or (b) knew of and acquiesced in; or (c) facilitated [the solicitor] arranging for another solicitor … to act for [the Witness]. [The Witness] retained and instructed [the other solicitor] to act for him in connection with seeking judicial review of his custodial terms. [The solicitor] gave a copy of the Statement to [the other solicitor]. [The Witness] believed that it would be in his best interests for a successful outcome of the judicial review if he withdrew the Statement. 3. The plaintiff (a) instructed or directed; or (b) knew of and acquiesced in; or (c) facilitated [the other solicitor] advising [the Witness] not to waive client legal privilege in respect of his file held by [the other solicitor]. [The Witness] did not give [the other solicitor] any such instructions."

(b) The events of 9 March 2000 27 Thursday 9 March 2000 was the 113th day of the proceedings before Levine J. The defendant was in its case. A series of witnesses called in support of the defendant's justification defence had given evidence. Shortly before 11.05am, Mr R R Stitt QC, who was being led by Mr W H Nicholas QC, informed the court that the next witness the defendant intended to call was "a witness who has an application to make, that application being that he be permitted to give his evidence with a pseudonym." Mr Stitt said there was no affidavit but the Witness wished to give evidence about why the order he applied for should be made. Mr Stitt said: "With your Honour's leave, I will take his name, details and then perhaps I will lead him through it, if I may." 28 The plaintiff was represented by Mr I Barker QC and Mr M R Hall. They did not oppose the leave which Mr Stitt sought. They did not complain about the absence of a Notice of Motion or affidavit. They did not seek any adjournment. They did not say they were surprised or prejudiced (though sixteen pages later the transcript records Mr Hall as saying that the plaintiff's side had not known of the application in advance). It is not surprising that the plaintiff's counsel behaved in this way, because Levine J has, it is understood, made directions at the request of the plaintiff as to the order in which defence witnesses are to be called, and the Witness's Statement as well as the particulars referred to above were in the plaintiff's hands. 29 Mr Stitt then asked the Witness questions over three pages of transcript. Levine J then asked Mr Barker whether he wanted to ask any questions. Mr Barker said that Mr Hall would ask questions. Mr Hall's questioning filled a little more than three pages of transcript. Some of the questions were leading questions of a detailed kind and many of these were answered affirmatively. Levine J then asked two questions. Mr Stitt then re-examined for less than two pages. 30 After Mr Stitt's re-examination, Levine J said: "Do you wish to assist the Court in any way, Mr Stitt?" Mr Stitt then delivered an address recorded over two pages. Mr Hall addressed for three pages. Mr Stitt replied over two pages, and Mr Hall put brief further submissions. In them he said, inter alia: "We have had two sets of new particulars within the last 48 hours in respect of this witness."

The plaintiff made no other complaint to Levine J about what had happened on 9 March. 31 In brief, the reasons why the Witness asked for a pseudonym order, as put in his evidence and as formulated in submissions by Mr Stitt, were that if he gave evidence without a pseudonym he feared for his life and he feared rape; if he sought protective custody, he would lose wages and remissions; and the publicity of giving evidence would be embarrassing to his family and detrimental to the physical health of his parents. Mr Hall put arguments discounting the legal relevance of some of these matters and the weight of others. 32 Levine J then adjourned. Later that day he delivered what was described as "JUDGMENT (On application by witness for pseudonym order)". In that six page document Levine J found that the Witness had "a generalised fear". He said that the Witness "was not cross-examined as to his holding that fear and there is no basis for finding that he does not." But he then said: "24. Taking into account that for which the applicant is known to be in his present custody, his past reputation to which I have referred, his voluntary making of a statement to the police in this State, his discussion of the very subject matter of his evidence with other inmates, and in particular one who has given testimony before this Court, and the absence of any evidence of actual threats, I cannot be satisfied as to the grounds of such fears, which the applicant says he holds, being reasonable. 25. The generalised concern, and it is a generalised concern, is not sufficient to bring about what I have described before as the minimalist interference with open justice by a witness, as opposed to a party, giving evidence with a pseudonym. 26. The availability of protection in his present custody is a factor I take into account. The loss of remissions flowing from that will be an incident of his custody and, while of concern to the applicant, is not a weighty factor in the determination of this application. 27. The applicant, on the evidence, has not said that he will not give evidence. He will do so with the [utmost] reluctance. This is taken into account in deciding that, in this instance, the ends of justice will not be defeated by the denial of a pseudonym."

On 15 March, Mr Nicholas said: "we have the copies of the process issued in February which operated to get him to Sydney, and apparently it is necessary to extend that from time to time as the case demands. I don't want to take any more time on it. My purpose is to illustrate how the system works." 41 The plaintiff's counsel said: "we don't accept that there is any material before this Court to show that this witness was before the Court pursuant to a subpoena. If my learned friend wants to prove that, that is a matter for him." 42 The following matters of fact are relevant. 43 First, it is clear from the Witness's oral evidence on 9 March 2000 that he is currently an inmate of the interstate gaol; he is serving a long sentence; and he is not eligible for parole until 29 November 2000. 44 Secondly, Levine J's Judgment contains the following finding about the Witness in paragraph [15]: "He has come here as a result of the compulsion of a subpoena and other orders duly served." 45 The plaintiff has filed no notice of contention or otherwise challenged the correctness of that finding. It cannot be bona fide in dispute that that finding is correct. And it cannot be bona fide in dispute that the documents to which the finding refers were either the documents handed to the Court of Appeal or documents in the same form. By reason of the Service and Execution of Process Act 1992 (Cth), which is discussed below, persons in the position of the Witness are not able to move from their places of incarceration to courts without documents of that kind being executed and served. The court, pursuant to s 82(1)(a) of the Supreme Court Act 1970, ought to dispense with the rules of evidence so far as it is necessary to prove any document demonstrating the accuracy of paragraph [15] of Levine J's Judgment or demonstrating that the documents there referred to correspond in form to those handed to the Court of Appeal. The handing up of those documents and Mr Nicholas' statement are, in the circumstances, sufficient proof.

(d) Standing of a witness to set aside subpoenas 51 A witness attending pursuant to a subpoena ad testificandum has a sufficient interest to move that it be set aside. It is not necessary to cite authority for the proposition that a subpoena duces tecum may be set aside on the application of the person served on a variety of grounds, for example that it was being used to obtain discovery against a third party, that it was being used as a substitute for discovery, that it was oppressive, that it had an impermissible purpose, and that it was being used in proceedings for the recovery of a penalty. These are but instances of the court exercising its jurisdiction to prevent an abuse of process: Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 101 per Powell J. A subpoena ad testificandum, or equivalent process, is in like case. In Waind v Hill and National Employers' Mutual General Association Ltd [1978] 1 NSWLR 372 at 385 Mofffitt P spoke of "the invasion by the subpoena procedure of the rights of a stranger". 52 The court has power to refuse to admit cross-examination of a witness - even a party-witness - on an affidavit if that would be an abuse of process. In Re Mundell; Fenton v Cumberledge (1883) 48 LT 776 at 778, Pearson J made an order to that effect and referred to Raymond v Tapson (1882) 22 Ch D 430 as an authority in which Sir George Jessel MR and Cotton LJ: "laid it down beyond all dispute that the court has a right to protect Her Majesty's subjects from the practice and process of this court being simply used to torture them, and not for the purposes of justice." 53 In Raymond v Tapson (1882) 22 Ch D 430 at 434 Sir George Jessel MR said: "It is said that no subpoena can be issued without leave of the Court. But under sect. 41 of the Chancery Improvement Act (15 & 16 Vict. c. 86) this might have been done without the leave of the Court. Of course there was always a power in the Court to prevent an abuse of this power, but except this control and the liability to pay the witness's expenses, there was no other check. If a witness did not attend he ran the risk of attachment; and on the other hand if there was any suspicion of oppression, the Court would take notice of it and of any other kind of professional misconduct on the part of the solicitor."

Both members of the Court of Appeal found that there was no irregularity or oppression in what had happened and that the witness was being called for a legitimate purpose; neither member of the court complained that the witness had made the application rather than a party. 54 In R v Baines [1909] 1 KB 258 the Prime Minister, H H Asquith, and the Home Secretary, H J Gladstone, were served with writs of subpoena ad testificandum at a trial of the defendant suffragettes for breach of the peace and unlawful assembly. A Divisional Court of the King's Bench Division set aside the subpoenas at the instance of the witnesses on the grounds that they could not give relevant evidence, and that the process of the court had not been issued for the purpose of obtaining relevant evidence, but for other reasons: that is, the court's process was being used for indirect and improper objects. This appeared to accept what the witnesses said in their affidavits, namely that they believed the subpoenas had been served by the defendant suffragettes "for the purposes of vexation and to bring the defendants and their agitation into further notoriety". 55 In R v Hurle-Hobbs, ex parte Simmons [1945] KB 165, Simmons, who had been served with a subpoena ad testificandum and duces tecum to attend before the district auditor of the London Audit District, obtained an order of certiorari setting it aside. 56 In R v Lewes Justices, ex parte Secretary of State for the Home Department [1972] 1 QB 232 the Secretary of State applied to a Divisional Court of the Queen's Bench Division for an order of certiorari to quash, and in the alternative an order to set aside, witness summonses issued by a magistrate to give evidence. The basis of the application was that the only material evidence which the witnesses could give would be the subject of a valid claim to Crown privilege. The Attorney-General, Sir Peter Rawlinson QC, argued that the Divisional Court had power to quash the summonses by means of an order of certiorari or set them aside by virtue of its inherent jurisdiction. For the latter contention he cited Steele v Savory [1891] WN 195 (a case on a subpoena duces tecum) and R v Baines [1909] 1 QB 258. Lord Parker CJ said at 240 that certiorari would lie, as it had been held without argument to lie in R v Hove Justices, ex parte Donne (Note) [1967] 2 All ER 1253. Lord Parker further said: "I am quite satisfied that in any event it is within the inherent jurisdiction of the court, just as it was before subpoenas were abolished, to set aside a witness summons if there has been an abuse of the process of the court or if it is clear in fact that the witness cannot give relevant evidence."

Nothing turned on the fact that it was not the witness who sought relief, but the Crown. 57 In Morgan v Morgan [1977] Fam 122 a party to divorce proceedings, the husband, issued a subpoena to the father of the wife. The husband wanted the court to have evidence of the father's assets as a matter relevant to what financial resources the wife was likely to have in the foreseeable future. A subpoena duces tecum was also issued. The father obtained an order from the registrar setting aside the subpoenas. He was represented by legal advisers before the registrar. The husband appealed to Watkins J. He dismissed the appeal on the ground that, though the evidence sought was relevant, it was oppressive to cause the father to come under the duress of a subpoena to give evidence to the court about his assets and what he meant to do with them. 58 Another example of a non-party who has been served with a subpoena ad testificandum appearing by counsel to set it aside is Bookbinder v Tebbit (No 2) [1992] 1 WLR 217. 59 A special illustration of the power of the court to set aside process in the nature of a subpoena ad testificandum exists in relation to experts. In Re Application of Forsyth; re Cordova v Philips Roxane Laboratories Inc [1984] 2 NSWLR 327 at 334-6 Clarke J held that there was a rule of practice in England which also applied in New South Wales to the effect that in general the court will not require an expert to give expert evidence against the wishes of that expert in a case where the expert had had no connection with the facts or the history of the matter in issue, particularly where the expert could not give the evidence without a breach of confidence, and where the preparation of the evidence required would call for considerable time and study. See Seyfang v G D Searle & Co [1973] 1 QB 148 at 152; Lively Ltd v City of Munich [1976] 3 All ER 851 at 857. In the last-mentioned case, Kerr J set aside a subpoena served on an official of the Bank of England on the motion of the Bank. In Seyfang's case, Cooke J set aside orders under the Foreign Tribunals Evidence Act 1856 (UK) which had been made ex parte against two experts on the ground that had they been served with a subpoena issued in English proceedings it could have been set aside by them. In Forsyth's case, an Australian expert appeared by counsel and set aside orders obtained ex parte from the Supreme Court directing his attendance before a commissioner for the purpose of taking evidence to be used in Californian proceedings. 60 The authorities indicate that there are numerous circumstances in which the recipient of a subpoena ad testificandum, or equivalent process, can move to have it set aside. If a potential witness can move that it be set aside, there would appear to be no reason why the witness cannot seek the narrower relief of asking that, in lieu of it being set aside, the witness's compliance with it should be subject to the condition of a pseudonym order.

Kay J upheld the legality of issuing a subpoena without any other court order or grant of leave to put in viva voce evidence after a decree for the purpose of a pending inquiry under that decree. He ordered Gill to attend at a day to be named. From this order both the defendant and Gill appealed. The Court of Appeal did not impugn the appeal by Gill as witness for want of standing. At 434 Sir George Jessel MR said, in narrating the facts: "Mr Gill attended but refused, by advice of counsel, to give evidence. And then an appeal was made to Mr Justice Kay. I think there was no irregularity in this." 63 Re Application of Forsyth; re Cordova v Philips Roxane Laboratories Inc [1984] 2 NSWLR 327 did not involve an appeal, but it did involve a successful application by the potential witness to set aside an adverse ex parte order. 64 Seyfang v G D Searle & Co [1973] 1 QB 148 was an appeal by potential expert witnesses represented by counsel to Cooke J against a decision of a Master refusing to discharge an order made by the Master under the Foreign Tribunals Evidence Act 1856 (UK). 65 Morgan v Morgan [1977] Fam 122 was an appeal in which the potential witness was represented by counsel from an order of a registrar to Watkins J. 66 In none of these cases was the procedure of a potential witness appealing against an adverse order in the nature of a subpoena ad testificandum questioned by the courts. 67 Partnership Pacific Ltd v Killen (Supreme Court of New South Wales, Court of Appeal, 10 April 1979, unreported - see Ritchie's Supreme Court Procedure NSW vol 2 [13,013]) involved an application in the nature of an appeal by a witness served with a subpoena to produce documents. The court dismissed an application for an expedited hearing, noting its concern at the interruption of the primary proceedings by appellate proceedings, but no point was taken that the proceedings were fatally flawed by reason of a lack of standing on the part of the witness. 68 The law permits non-parties to apply for leave to appeal from orders affecting them. Thus in In re Markham; Markham v Markham (1880) 16 Ch D 1, a potential beneficiary under a will who was not party to administration proceedings was granted by the Court of Appeal leave to appeal despite having not been a party to the cause. 69 In In re Securities Insurance Company [1894] 2 Ch 410 the Court of Appeal held that any person interested who was not an actual party to the record below had to obtain leave before appealing. Lindley LJ said at 413: "Now, what was the practice of the Court of Chancery before 1862, and what has it been since? I understand the practice to be perfectly well settled that a person who is a party can appeal (of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it; but without leave he is not entitled to appeal." 70 Those authorities were applied by the Court of Appeal in Senior v Holdsworth, ex parte Independent Television News Ltd [1976] 1 QB 23 at 32-33 in the context of an application for leave to appeal by a corporation which had been served with a subpoena duces tecum. The corporation failed to comply with the subpoena and, on being summoned to appear with a view to being punished, sought leave to appeal to the Court of Appeal against the order that the corporation should on a witness summons duces tecum have produced the documents in question. The Court of Appeal held that if a judge makes an order in the nature of a subpoena by which the person subpoenaed is aggrieved, that person would have an appeal to the Court of Appeal by leave even though not a party to the suit. No distinction was drawn between process in the nature of a subpoena ad testificandum and process in the nature of a subpoena duces tecum. 71 Lord Denning said at 32-33: "If the judge makes an order with which the witness is aggrieved, the witness will have an appeal to this court. Although he is not a party to the suit, he is a person who is aggrieved by the order: and he is entitled, by leave, to appeal against it: see In re Markham, Markham v Markham (1880) 16 Ch D 1 and In re Securities Insurance Co [1894] 2 Ch 410. He must obtain leave either from the judge or from this court: but he cannot appeal without such leave: see section 31(1)(I) of the Supreme Court of Judicature (Consolidation) Act 1925."

Immaterial exceptions are then set out. Lord Denning MR's point was simply that not any non-party could obtain leave to appeal, only a non-party who was "aggrieved". 72 It is true that the appeal in Senior's case was brought from the County Court, and s 108 of the County Courts Act 1959 limited appeals to those by a party aggrieved with the determination of the judge in point of law. But that does not undercut Lord Denning MR's reasoning in relation to appeals within the High Court, which has no such express limitation, any more than s 101 of the Supreme Court Act 1970 (NSW) does. 73 That it is normal, as a matter of the usual practice of the courts, for non-party recipients of subpoenas to be heard in objection to them and to appeal if dissatisfied receives powerful negative support from Rochfort v Trade Practices Commission (1982) 153 CLR 134. That was part of hard-fought litigation - what is known as the first Tradestock case - in which one would have expected any available point to have been taken. Rochfort was the employee of an unincorporated association who carried out work for a member of that association, which was also an unincorporated association. He received a subpoena duces tecum. He objected on the grounds that the documents were not in his personal possession but that of the second unincorporated association, its members and executive. Bowen CJ ordered him to produce certain documents. Rochfort and three parties to the proceedings appealed against that order to the Full Federal Court. Rochfort appears to have been the only active appellant. The appeal was dismissed: Rochfort v Trade Practices Commission (1981) 53 FLR 364. Rochfort (but no other party) then obtained special leave to appeal to the High Court of Australia. The appeal was dismissed, but no point was taken there or in the Full Federal Court about him lacking standing or indeed about the supposed absence of any order. 74 Another illustration of considerable negative force is Penn-Texas Corporation v Murat Anstalt (No 2) [1964] 2 QB 647. Penn-Texas Corporation was the plaintiff in an action in the Supreme Court of New York in which the defendants were Murat Anstalt and others. English Transcontinental Ltd was an English company which carried on business as a merchant banker and at one time appeared to have acted as bankers for Murat Anstalt. It was thought by Penn-Texas Corporation that the evidence of English Transcontinental Ltd and documents which it could produce would be of assistance to it in the action in the Supreme Court of New York. Penn-Texas Corporation moved by Notice of Motion in the New York court for an order directing that a commission issue for the taking of the deposition in London of English Transcontinental Ltd by its managing directors. That order was made. Master Jacob made an order directing English Transcontinental Ltd and its managing directors, Messrs Strauss and Bittlestone, to attend before an examiner to be examined on oath or affirmation upon certain interrogatories and to produce certain documents. English Transcontinental Ltd, Strauss and Bittlestone applied to Master Jacob for the discharge of his ex parte order. That application was successful so far as English Transcontinental Ltd was concerned. Penn-Texas Corporation appealed to Sachs J against the deletion of English Transcontinental Ltd from Master Jacob's order. Sachs J varied Master Jacob's order by requiring English Transcontinental Ltd to attend by its proper officer before the examiner and to produce the documents. English Transcontinental Ltd appealed to the Court of Appeal. That appeal succeeded. The Court of Appeal, however, did say that English Transcontinental Ltd could be required to attend by its proper officer before the examiner for the purpose of producing documents though as the documents were not sufficiently identified the order asked for would be refused. Penn-Texas Ltd made a new application to Master Jacob for an order that English Transcontinental Ltd should produce certain documents. English Transcontinental Ltd appealed unsuccessfully to Veale J. English Transcontinental Ltd then appealed to the Court of Appeal. The arguments before and reasoning of the Court of Appeal treated the law in relation to subpoenas and s 1 of the Foreign Tribunals Evidence Act 1856 as being closely analogous. No point was taken against English Transcontinental Ltd at any stage of these hard-fought and complex proceedings that it had no standing to appeal against orders affecting its interests despite the fact that it was not a party to the litigation.

(g) The plaintiff's authorities on standing 76 The plaintiff cited four Federal Court cases to the Court of Appeal in support of its argument that the Witness lacked standing to appeal. 77 The first three were referred to on 14 March. The first was Sen v R (1991) 30 FCR 173. A person convicted of criminal charges appealed, but died before the hearing of the appeal. His father submitted that the appeal had not abated, though conceding that the appeal could not proceed until the father were granted probate or letters of administration of the deceased's estate and were substituted as a party. The Full Federal Court held that the appeal abated on the death of the deceased. The plaintiff did not explain the relevance of this decision to the standing of the Witness. 78 The second case cited was Emanuele v Australian Securities Commission (1995) 63 FCR 54. The trial judge ordered that some companies be put in liquidation. Directors of those companies appealed. The Australian Securities Commission objected to the competency of the appeal on the standing of the appellants to pursue the appeal in that, having indirectly asserted on 30 August 1995 that they were contributories or creditors of the companies, they now claimed to have instituted the appeal in their capacities as directors of the companies. The Full Federal Court said at 61: "At the time when the primary judge directed that the directors be served with the notices of motion and affidavits, and when the appellants instituted the proceedings before this Court, the directors of the companies were on the horns of a dilemma. If the deeds of company arrangement were valid, as they contend, their powers as directors were confined by the terms of the deeds by which they and the companies are bound. The practical way of resolving this dilemma is that which was chosen by the primary judge, namely to direct service on the individual directors so that they could appear and be heard as representing the boards of each of the Group A and Group B Companies. … The judgment which the appellants seek to challenge in respect of the Group A Companies declared the deeds of company arrangement to be void, but that does not remove the dilemma as the appellants seek to argue that the order should not have been made. In the case of the Group B Companies the dilemma also continues. In the circumstances this Court should follow the same practical course as the primary judge, and hold that the appellants have a sufficient interest to prosecute the matters now before the Court as they, in their capacities as the directors, appear to represent the boards of the companies in exercise of the residuary powers which remain with the boards. The objection to competency should be overruled."

The case in fact supports the readiness of the Federal Court to grant leave to a non-party to appeal if sufficiently interested. The appellants in the Full Federal Court obtained special leave to appeal, and appealed, to the High Court, but no point was taken there about the standing of the appellants: Emanuele v Australian Securities Commission (1997) 188 CLR 114. In the High Court the case thus has a force similar to the force of Rochfort's case and the Penn-Texas case. 79 The third case was Brouwer v Titan Corporation Ltd (1997) 149 ALR 50. Detective Sergeant Brouwer received subpoenas duces tecum to produce documents relating to a criminal investigation. He claimed public interest immunity. Northrop J overruled that claim and ordered production of the documents. Brouwer appealed. He then sought leave to appeal. The Full Federal Court held that Northrop J's order that Brouwer produce the documents was interlocutory and that leave was needed. Leave was refused on the basis that Northrop J was not shown to have erred in principle. The Full Federal Court noted that there was "some doubt whether a non-party to proceedings in the court has a right of appeal", but did not find it necessary to address the issue. 80 The last case, cited on 15 March, was Shields v Official Receiver in Bankruptcy (1996) 66 FCR 171. The Full Federal Court construed s 24(1) of the Federal Court of Australia Act 1976 (Cth) as giving a right of appeal only to a party. Though the non-party in question apparently did not apply for leave to appeal, the court held that it did not "think sufficient has been shown to amount to an interest which would give Mr Isaac Shields the right to prosecute this appeal." 81 The plaintiff referred to Cuthbertson v Mayor, Aldermen and Citizens of the City of Hobart (1921) 30 CLR 16 at 25 where Knox CJ and Starke J said: "Under the practice which exists in England 'parties to' an action and all persons served with matters of judgment may appeal without leave. But a person not a party to the proceedings cannot appeal from an order or judgment except by leave of the Court ... Leave to appeal is given as a rule if the person applying though not a party to the proceedings might properly have been one. 'The test is, could or could not the applicant by possibility be made a party to the action by service' … The appellate jurisdiction of the High Court is not identical with that of the Court of Appeal in England, but we see no reason to doubt the jurisdiction of this Court to act in accordance with that practice, or the expediency of doing so, in relation to appeals from the Supreme Courts of the States."

(k) "Judgment" or "order": consideration of the authorities relied on by the plaintiff 95 Turning to the authorities relied on, the plaintiff's submission may read too much into the passage from the Driclad case. Barwick CJ and Kitto J were seeking merely to distinguish between "judgments" in the strict sense and "judgments" in the looser sense of "reasons for judgment". The reasons which lead to a judgment or order are by themselves not operative judicial acts; it is the judgments or orders which are. The real question is whether Levine J's refusal of the Witness's request is an operative judicial act. 96 Taking the other authorities in the order of citation, Barton v Walker [1979] 2 NSWLR 740 at 751 and 759 was relied on. It decided that a refusal by a judge to accede to a request to cease to act on grounds of bias was not an order from which an appeal could be brought. That conclusion is remote from the present context not least because a bias point taken by a party can always be made an effective ground of appeal by that party at the end of the trial. A bias point can also be tested if an interlocutory order is made after the judge rejects the application for disqualification, provided leave to appeal is obtained. On the other hand a complaint by a witness about a refusal to make a pseudonym order cannot be made an effective ground of appeal in those ways. The conclusion arrived at in that case is also controversial: see the authorities discussed in Brooks v The Upjohn Company (1998) 85 FCR 469. 97 In Commonwealth v Mullane (1961) 106 CLR 166 at 169 the High Court held that a ruling on a point of law by a County Court judge that a certificate was not conclusive against one party and that the appeal be set down for hearing on a date to be fixed was not a judgment or order. Again the context is different: the point was that the reliance on the certificate, which allegedly concluded the parties' rights, was held not to conclude the parties' rights before the hearing of the appeal was completed. 98 National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1988) 17 NSWLR 223 concerned whether the word "judgment" in s 101 of the Supreme Court Act 1970 (NSW) included a decision on an issue ordered to be determined separately. The question was whether an appeal lay as of right or by leave. The case says nothing about the nature of an "order" or about capacity to appeal against the refusal of pseudonym orders. 99 R v Ireland (1970) 126 CLR 321 at 330 contains a discussion by Barwick CJ of the distinction between "reasons for judgment" and judgments and orders. That discussion throws no light on the present problem. 100 Yule v Junek (1978) 139 CLR 1 at 14 contains a passage in which Mason J pointed out that under the legislation being considered, appeals lay only from a judicial order, not from a mere answer to a question of law arising in proceedings, in particular an answer which of itself could not be decisive of the rights of the parties unless and until the primary judge dealt with other questions upon which he reserved judgment. The discussion is in the context of decisions on substantive rights, and is not material to the procedural question before Levine J. 101 Minister for Works for the Government of Western Australia v Civil and Civic Pty Ltd (1967) 116 CLR 273 was a case in which an expression of opinion by a judge of the Supreme Court of Western Australia on a question of law was held not to be a judgment, decree or order within the meaning of s 73 of the Commonwealth Constitution or s 35 of the Judiciary Act (1903) (Cth). The particular passages relied on were at 277, 282, 288, 290 and 291. At 277 Barwick CJ said: "It is of the essence of a judgment within the meaning of the Constitution that it is binding upon parties and definitive of legal rights. It is not enough that the judge or Court exercises a jurisdiction of the Supreme Court in a matter judicial in its substance. The judge or Court must authorizedly give a binding judgment which determines or settles rights."

The response was as follows: "The matter is referred to in s 3 of our submissions and there are two points, the first is in paragraph 3.3 where the witness had no standing for an application for leave and the second point is the first sentence in paragraph 3.5, that there is no judgment from which an appeal is brought. I want to put a submission based on the general law of both those two questions. The constitutional issue arises on the first question because this court is exercising federal jurisdiction and I submit in determining whether this witness has standing to bring an appeal, your Honour can only accord standing to him if he had standing to appeal in a chapter 3 court. That is a rather inelegant way of putting it but if I may look at it in a more practical way, I would be putting a submission to your Honours based on the general law and I would then seek to abut this matter with the proposition that the requirements of the general law are all the more strict on this notion because of chapter 3 of the constitution. So that even for example there was a broad test of standing under the general law, which would include this witness and I submit, by the way, that there is, that when your Honours come to determine the issue of standing in chapter 3 jurisdiction your Honours would take a narrow view rather than a wider view in that exercise. That is the first point if your Honours reach that position. The second point is on the question of judgment again and I want to put a submission based on the general law that the refusal by the Judge to accede to this witnesses request did not constitute a judgment within the meaning of the general law. I would then again seek to buttress that interpretation of the word judgment by focusing again on the fact that this court is exercising federal jurisdiction and if your Honours were looking at any ambiguity in the word judgment, I would ask your Honours to take an interpretation of that word consistent with the exercise of the federal jurisdiction which would mean taking a narrower view rather than a broader view of what amounts to a judgment. Again I have put both of those explanations a little vaguely. I hope that I have explained them adequately to you. MASON P: Is there anything in last week's High Court case which assists you or which cuts across those submissions. REYNOLDS: Your Honour I have only been through it very quickly. It is certainly the latest word on the question of standing in the Federal jurisdiction. There are statements made in the judgment about what is required in a federal case. The precise issue as I recall was whether or not standing under the general law and under the constitution could be dilated by statute which give standing to any person. That was the precise issue and it was held that a statute could validly enlarge a standing in that way. Now that is a related but not the same issue obviously that arises before your Honours. What I would like the opportunity of doing is to go through the judgment more closely and see if there is anything that helps me or hinders me on this submission."

(b) The nature of the Witness's fears 117 The first key point is that Levine J's Judgment characterised the Witness's mental state as a "generalised fear". That the stress in that expression was on the word "generalised" is suggested by the later words "the generalised concern, and it is a generalised concern". The evidence about the Witness's fears was summarised thus by Levine J in paragraphs [4] and [5]: "The applicant's position is that he holds fears for his physical safety and, indeed, his life, he says, in the maximum security gaol in which he is an inmate. That fear arises from a belief that if it became known that he gave evidence in this trial, he will be subject to adverse and hostile treatment merely by reason of that fact. He is a mainstream prisoner and fears, by reason first, of the giving evidence by itself; second, by giving evidence on the subject matter of his sexual behaviour in an asserted homosexual relationship with the plaintiff, he could be the victim of retaliation and reprisal, based on what I understand to be the applicant's understanding of the prisoner's code of conduct." 118 The Witness's evidence was that the maximum security correctional centre in which he is an inmate is "one of the most notorious prisons that [that State] has available" and had "often been described as the worst of the worst". In its ten year existence there had been "upwards of forty deaths". Only a few weeks earlier an inmate suspected of being a "dog" (i.e. someone who gives evidence) was attacked by fifteen inmates in the area in which the Witness was housed. 119 The Witness gave the following evidence: "Q. Would you tell his Honour the basis of your application and the reasons for it? A. The basis for this application and the reasons for which I make this application, your Honour, is that I believe my life would be in grave danger if it were to be known to the inmates, which are also housed at the centre, that I were to give evidence in such a case like this today. Q. Why would that danger exist? A. The danger would exist because there is a general consensus with mainstream inmates that one does not give evidence, period. Regardless of that being a civil matter, a criminal matter, against police, against prison officers, one just simply does not give evidence. Period. If it were to be known I was giving evidence, particularly in such a case, rather the nature of this case, my life would most certainly be in grave danger in more ways than one. Q. There are a couple of things you said that I would like to clarify. You have mentioned 'mainstream' prisoners. What do you mean by that? A. A mainstream prisoner is a prisoner who generally doesn't need any form of strict regime by way of protection from other inmates. They normally can hold their own in where they are being held and don't really need supervision. Q. You said that your life was in danger, I think you said in more ways than one. What did you mean by that? A. The first being, I mentioned regards to giving evidence, but my life would most certainly be in danger in respect of that. My life would also be in danger in regards to the nature of this case and in regards to sexual assault and the number of sexual assaults which do take place in prisons are of a high number and that is also another risk which could become a problem. Q. What do you mean by that? What do you mean by sexual assault? A. If it were to be made clear in regards to my giving evidence here and my relationship with Mr Marsden. Q. Was a homosexual one? A. Yes. Q. What would be the consequences of that? A. Well, the consequences could be anything from indecent assault, sexual assault. Q. Upon you? A. Upon myself, yes. Q. Why do you have that fear? A. It is not something I would like to be involved with. There have also been problems - there has also been problems in [local gaols] with [pack] rapes. That is something, really, I just -- Q. Within the prison? A. Within the prison system, yes. Q. Do you genuinely hold these fears? A. I most certainly do, yes. Q. If the court is unwilling to grant you that pseudonym order, what is your attitude to giving evidence in these proceedings? A. I would be very reluctant to give evidence. I most certainly would. That is my - without giving any disregard to the court in any way, I truly believe my life will be in some danger if I am not able to give evidence under a pseudonym." 120 In cross-examination, in relation to whether there was in the gaol system special protection available, the Witness said that in another prison, built and designed to house protection inmates, an inmate had only four weeks earlier been beaten to death by two other inmates charged with murder. Those inmates suspected him of being a paedophile whereas in fact he was serving a sentence for traffic infringements. 121 Levine J correctly said that the Witness had not been cross-examined as to the sincerity with which he held his fears, and said that there was no basis for finding that he did not hold those fears. He did not in terms make a positive finding that he did hold the fears, though that conclusion is implicit in Levine J's reasoning. 122 It does not seem correct to describe the fears as being "generalised". Nor does it seem correct to describe them merely as "concerns". The use of the expression "generalised" appears to arise from the finding in paragraph [25] that there was an "absence of any evidence of actual threats". The purpose of the application for a pseudonym order was doubtless to avoid the risk of any actual threats being made. To take into account the absence of actual threats was to take into account an irrelevant consideration. 123 The plaintiff submitted: "This point seems to be mere pettifoggery based upon whether the judge has selected the 'mot juste' to use as an epithet to describe the general fear which the witness has as to his safety. This submission is baseless."

On the contrary, it has much force. 124 It is a melancholy fact that there was an extreme realism and plausibility about the Witness's evidence as to the conditions in gaol. The terms in which he explained what his fears were included "my life would be in grave danger", "my life would most certainly be in grave danger in more ways than one", "my life would most certainly be in danger in respect of" giving evidence, "My life would also be in danger in regards to the nature of this case and in regards to sexual assault" and "I truly believe my life will be in some danger". His testimony was depressingly replete with concrete and convincing circumstantial detail pointing to the basis of the fears. His evidence thus established not only the sincerity of his fears but their reasonableness. 125 The Witness drew attention to the following remarks of Mahoney JA in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131. That case concerned the power of a Local Court magistrate to make a pseudonym order in committal proceedings to protect the identity of an alleged victim of extortion. At 163 Mahoney JA said: "As I have indicated, it was put to the learned magistrate that, if the identity of the victims was revealed, there were apt to be others ('copycat situations') who would seek to extort money from these victims or from other potential victims, and that the investigation of the offences would be more difficult because of confusion between real and mischievous threats. And, I think, the possibility that victims would not approach or co-operate with the police authorities emerged in argument. These consequences, if they flowed from the disclosure of the victims' identity, would, in my opinion be analogous to those in blackmail and similar cases and would be of sufficient seriousness in the context of the proceedings before the court to make the power to make pseudonym orders 'necessary'. But it was suggested in argument for the media interests that there was no evidence that such consequences will flow in any extortion case and nothing to show that they would flow in the present cases. The submission was that it could not be concluded that such consequences would flow. It has not been the practice of the courts to require evidence that the consequences conventionally attributed to, for example, the disclosure of names in blackmail, security or informer cases, will actually flow. The courts have inferred that they will. No doubt, if it were to be suggested in a particular case that they would not, that could be the subject of proof. The same position should, in my opinion, obtain in respect of extortion cases of the present kind: no reason has been suggested for a different approach."

The cases about "informers" which have developed since Marks v Beyfus (1890) 25 QBD 494 generally related to orders preventing the tender of documents, or testimony by persons other than the informer, which could reveal the name of an informer. It does not matter that here the Witness is not a person whose testimony might reveal the name of some other informer as distinct from his own. Nor, though the plaintiff contended that the "informer" cases only applied to "registered informants" as distinct from a person who informs in a general sense against another person (cf McHugh JA in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 251, who said the principle extended beyond "people who are in effect professional informers and who provide information on a regular basis"), does it matter whether the Witness is an informer in the narrow or the general sense. The point is that the informer cases recognise the reality of the risks faced by those who give information to police, whether they do so as professional informers or merely do so in isolated instances, like those giving evidence in extortion or blackmail cases. Normally the informers the subject of those risks are outside gaol. The risks are obviously greater for those inside gaol. The Witness's evidence about his fears and their basis gave exceptionally concrete and vivid support for the inferences which, according to Mahoney JA, the law draws in any event. In short, Levine J's Judgment has not given sufficient weight to the fact accepted by the cases that informers generally are placed in dangerous positions by their activities. "Dogs" in gaols are in a worse position than other informers. The reasoning in Levine J's Judgment mistakenly gives less value than the authorities recognise to the importance of enabling "dog" evidence to be given satisfactorily by reducing the precariousness of the positions of those who give it. In these circumstances Levine J's Judgment appears to give far too little weight to the fears expressed by the Witness.

(c) Objective reasonableness of Witness's fears 126 A second difficulty arises from paragraph [24]: "Taking into account that for which the applicant is known to be in his present custody, his past reputation to which I have referred, his voluntary making of a statement to the police … , his discussion of the very subject matter of his evidence with other inmates, and in particular one who has given testimony before this Court, and the absence of any evidence of actual threats, I cannot be satisfied as to the grounds of such fears, which the applicant says he holds, being reasonable." 127 In terms this paragraph is dealing with whether the grounds for the Witness's fears are objectively reasonable. To some extent, however, the grounds appear to go to the sincerity of the fears expressed, and the plaintiff submitted to the Court of Appeal that they, and the cross-examination on which they were based, did this. The plaintiff submitted: "Mr Stitt … made a point that there was no direct cross-examination by [the] cross-examiner on the fact of holding the fear. I would submit that was put in issue by the cross-examiner attacking the basis of the fear and it wasn't doing anything more than attacking the basis of the fear and leaving it as one of the cases put [it] with upraised eyebrows …. In other words, it wasn't necessary for the cross-examiner to actually put a final question: I put it to you that you do not actually hold any fear. He didn't do that. He undercut the whole basis for the suggestion that there was a reasonable fear." Thus "that for which the applicant is known to be in his present custody" is a conviction for an offence of procuring the commission of an act of gross indecency with another man. The significance of this was not spelt out in Levine J's Judgment, but it was made the basis of one submission put by the plaintiff to the Court of Appeal, to the effect that the Witness is already likely to be the target of rape, so that there is only "a slightly increased chance of" it after giving evidence. 128 The "past reputation" to which paragraph [24] makes reference is the reputation referred to in paragraph [9] - "a reputation for giving evidence against fellow inmates." The plaintiff submitted in effect that a person of this reputation cannot sincerely fear reprisals if in future he acts as he is reputed to have acted in the past. 129 The fact of the Witness's "voluntary making of a statement to the police in this State" is a reference to the Statement of 1 May 1998 referred to above. The plaintiff submitted that the making of that statement undercuts or qualifies the sincerity of the fears expressed by the Witness. 130 The reference to the discussion by the Witness of the subject matter of his evidence with other inmates similarly appears to go to the sincerity of the Witness's fears, in the plaintiff's submission. 131 It is impossible to reconcile this approach of the plaintiff with Levine J's finding that the fears were held. If the plaintiff's approach were valid, there would be a fundamental contradiction at the heart of the reasoning in Levine J's Judgment. On a fair reading, there is not. 132 If the factors in paragraph [24] are considered as factors going to the reasonableness objectively of the Witness's fears, which is how Levine J's Judgment treats them, the defendant submitted that they were "matters which were totally extraneous and unrelated to the circumstances which give rise to the [Witness's] fear". The defendant also submitted that Levine J in paragraph [24] "is pronouncing upon and finding … not reasonable, matters which simply do not constitute the basis that the [Witness] put forward as being the foundation of his concern." These submissions are substantially correct. Paragraph [24] does not distinguish between circumstances surrounding the Witness in gaols other than his present place of incarceration at earlier times, and what is known in the present place of incarceration and the present time. Thus the offence of which the Witness was convicted and for which he is presently being punished, while known to the authorities, is "not readily known" to his fellow prisoners. The "past reputation" of giving evidence against fellow prisoners caused him to seek protective custody while he was in a gaol a long way from his present place of incarceration and in another State, but there is no evidence it caused him to seek protective custody in his current place of incarceration. There is no evidence that the voluntary making of the statement to the police in New South Wales by the Witness is known in the present place of incarceration. The "discussion of the very subject matter" of the Witness's evidence with other inmates was limited to a discussion with two persons. There is no evidence of its terms, date or location. In particular, there is no evidence that that discussion took place in the gaol where the Witness is presently incarcerated. 133 Some attention was paid during the argument to one particular question. The plaintiff contended that the Witness already had a reputation at his present gaol for giving evidence against inmates, and that his fellow prisoners believed that he had come to New South Wales to give evidence against another inmate. The latter part of the plaintiff's submission rests on a misconstruction of the evidence. The evidence is that the Witness told "a select few" inmates that he was coming to court to give evidence in regard to an incident late in 1998 when there was "an assault on a prisoner by a prison officer" in New South Wales. A question was asked about the prisoners believing the Witness had come "to give evidence against another inmate in favour of the Department of Corrective Services". Since this question was prefaced by the word "Indeed", and inquired as to the belief of third parties, it was arguably objectionable as inaccurately summarising the earlier evidence about an assault on a prisoner by a prison officer and inviting speculation, and not surprisingly Mr Stitt objected. Simultaneously, apparently, the Witness gave an answer recorded as "Yes -" just before Mr Stitt's objection. Levine J correctly said: "This was to give evidence. I don't know for whom or against." The cross-examination then moved to a new subject and the matter was not clarified. This material does not support the plaintiff's submission. 134 A significant difference between the Witness and the plaintiff emerged in argument before the Court of Appeal in relation to the cross-examination of the witness before Levine J. For example, the Witness submitted in chief: "The first opponent did not, however, put to the claimant that the claimant's fears were: (a) unreasonable, (b) groundless, or (c) lacked credible foundation. In the circumstances it was not open to his Honour to find that: (a) the claimant only held a 'generalised fear'; and (b) the claimant did not have reasonable grounds for that fear. The claimant, on the evidence, did not hold a 'generalised fear', he held a specific and grave fear." 135 The plaintiff at the close of the argument submitted that to say "there was no challenge to the ground for the applicant's fear" was "as false a statement as could be made because the whole of [the] cross-examination was directed to that issue." 136 The merits of this controversy lie more with the Witness than with the plaintiff. It is true that the plaintiff put to the Witness a number of circumstances and factors which arguably went to the objective reasonableness of the Witness's fears. But the questions often did not establish a link with the Witness's current situation. There was certainly no express challenge to the actuality of the Witness's fears. And there was no challenge put to the Witness in relation to reasonableness in a manner which would have entitled the Witness to answer for himself a generalised contention that his fears were not reasonable. While in many types of litigation that might not be necessary, the present circumstances are different. 137 A further argument put by the plaintiff was that there was no risk of the Witness being attacked for giving evidence against the plaintiff when his fellow inmates knew he had given evidence against inmates in the past. The fragility of the factual assumption on which this is based has already been referred to. Even if it were sound, the suggested conclusion does not sit well with Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667. There an informer was protected even though it was known he had informed against the accused in relation to one crime on the ground that it was not known that he had informed against that accused and other unidentified persons in relation to other unidentified criminal activity for which no charges had yet been laid. The Court of Criminal Appeal evidently thought that the additional quantity of informing might result in additional risks. 138 In short, the factors stated in paragraph [24] of Levine J's Judgment do not destroy either the sincerity of the Witness or the reasonableness of his fears because the underlying evidence to which Levine J is cross-referring does not support any such process of destruction.

That is a reference to paragraph [66] of the 12 November 1999 judgment, quoted above. 141 The plaintiff treated paragraphs [19] and [20] not as a mere recitation of his submissions, but as findings in his favour. He submitted: "4.3 First, at para 19 [Levine J] referred to the importance of vindication in the context of defamation proceedings and the need for the plaintiff to be vindicated in open court over his accusers: see Deane J in Australian Broadcasting Commission v Parish (1980) 43 FLR 129, at p157, which was quoted in paragraph 67 of the judgment of 12 November 1999. 4.4 Secondly, at para 20 Levine J had regard to the desirable aspects of fully open justice referred to by Professor Wigmore, which were collected more fully in the judgment of 12 November 1999: see para 66 of that judgment, where it is noted that a fully open trial: (a) discourages false testimony (because of the fear of rebuttal); (b) ensures that witnesses may come forward; (c) means that important information may be provided to both parties; (d) increases public respect for the trial process. These factors, together with those referred to by Deane J, show that there would be significant prejudice to the plaintiff if a pseudonym order was made." 142 It would seem that if the plaintiff wins the defamation proceedings, it will be a victory which will give him very great vindication. It is difficult to see how that vindication will be in any way lessened by reason of the existence of the pseudonym order. 143 As to the Wigmore factors, it would be unrealistic to suppose that there has not been the most thorough investigation already by the plaintiff of the Witness. The Witness will not be able to give evidence outside the particulars supplied. The Witness must be aware that whatever he says which is capable of rebuttal is liable to be rebutted by witnesses whom the plaintiff has had months to locate. The Wigmore factors have greater relevance to an ordinary trial which has had much less than the extensive publicity given to this trial. In ordinary trials, particularly in Wigmore's day, the witnesses are called in no particular order and without there being any necessary prior notice of what will be said. In this trial, witnesses are called in a pre-announced order, with extensive particulars and statements supplied in advance. Levine J was correct not to incorporate as part of his reasoning the submissions recorded in paragraphs [19] and [20] of his judgment beyond referring to "the minimalist interference with open justice" brought about by a pseudonym order. 144 It is necessary that there be a minimalist interference with open justice to the extent of pseudonym orders in favour of the Witness. That is because without them the Witness reasonably fears death or physical injury, or alternatively an unnecessary loss of liberty. These are evils which it is necessary to avoid by that degree of minimalist interference. Without the orders, the Witness is exposed to hurt, and the party calling him is faced with the risk of testimony proceeding from a person who is reluctant, but in a particular sense. Many witnesses, as the plaintiff pointed out, are reluctant, but few are reluctant because of fears for their lives, safety or liberty. 145 It is perhaps unnecessary to say that the conclusion that pseudonym orders should be made in relation to the Witness does not entail the further conclusion that they should be made in relation to any prisoner serving a sentence whom it is desired to call as a witness in proceedings. Each case must turn on its own circumstances, and the circumstances affecting the Witness in relation to these unusual proceedings are out of the ordinary.

In address the Witness said he wanted orders similar to those made by Hunt J in R v Savvas (1989) 43 A Crim R 331 at 339. These were: "1. Each of the witnesses referred to in the two affidavits of Superintendent Brian Harding sworn 24 August 1989 is to be addressed and referred to in the court only by a pseudonym. 2. Any matter which is likely to lead to the identification of those witnesses is not to be reported by those in court. 3. No photographs, film or video recording is to be taken of either of the two witnesses in the court or within its precincts, and no drawings or other likenesses are to be made of either of the witnesses either in the court or within its precincts." 147 It would thus appear that the orders desired are as follows: 1. The Witness is to be addressed and referred to in court only by a pseudonym. 2. Any matter which is likely to lead to the identification of the Witness is not to be reported by those in court. 3. No photographs, film or video recording is to be taken of the Witness in the court or within its precincts, and no drawings or other likenesses are to be made of the Witness either within the court or within its precincts. 148 The plaintiff put no arguments in writing critical of the form of the orders in the Summons for Leave to Appeal. In oral argument he criticised the word "published". That criticism need not be dealt with in view of the Witness's desire for Savvas orders. The plaintiff also submitted that the orders would place those aware of the identity of the Witness in jeopardy of being in contempt of court. If such persons are unaware of the orders, they are not in contempt. If they are, they must obey them. The plaintiff also submitted that the orders would prevent him from properly investigating the allegations of the Witness. That submission lacks reality in view of the prior notice which the plaintiff has received of the evidence which the Witness is expected by the defendant to give. 149 Levine J mentioned in paragraph [11] that the Witness had been mentioned by another witness in evidence. This played no part in Levine J's ultimate reasoning, beyond his reference to the Witness's "discussion of the very subject matter of his evidence with other inmates, and in particular one who has given testimony before this Court". The plaintiff, however, submitted that there had "already been a very wide dissemination of" the Witness's name in open court, and that this constituted at least a very strong reason why a pseudonym order should not be made, apparently on grounds of futility. It was not made clear how the pseudonym order in relation to the Witness's evidence would be rendered futile by earlier mentions of his name, nor was there any evidence of any publicity having been given to those mentions. 150 If any modification of the orders is desired for some sound practical reason, application can be made for that modification to Levine J.

Witness v Marsden & Anor

At a glance

Court

Decision date

Before

Source

Judgment (85 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (26)

Cited By (19)