Sunday’s Northern Territorian included the following story (HT: Twitter @dunlop_craig):
THE High Court has published, and later removed, a document which bares the name of an alleged Northern Territory paedophile, whose identity is the subject of an NT Supreme Court suppression order. The document, a case chronology, was downloaded repeatedly by the NT News last week, but was switched out with a redacted version late on Saturday night, around the time inquiries were sent to court staff.
The NT News states that the case was IMM v R, a very significant ruling on Australia’s uniform evidence law where the Court issued a complex judgment last week. Like most High Court evidence law cases, the facts involved alleged child sexual abuse and the adult defendant’s name was most likely suppressed to protect the identity of the complainant. That being said, the Court did not suppress the man’s name when the case was initially listed for a special leave hearing and the court list for that day (which is still hosted by the Court but not hyperlinked from the Court’s website) still contains his surname. [EDIT: see the first comment below.]
The ‘chronology’ mentioned in the report is likely to be the one supplied by the appellant and published (now without the defendant’s name) by the Court on its website here. The Court’s practice of publishing party’s submissions on its website is, in my view, a very welcome one that enhances the transparency of the Court’s decision-making and the justice system more broadly. Indeed, it would be beneficial if other documents (such as the special leave application and the appeal book) that can currently be seen by searching the Court file for a fee, were also posted online. One difficulty, though, is the possibility that a document filed with the Court contains sensitive private information or information that cannot be lawfully revealed to the public. In relation to submissions and chronologies, the Court’s rules state:
A written submission, including the annotated form of a written submission, and a chronology must:
(a) include a certification that the submission and chronology is in a form suitable for publication on the Internet; or
(b) be accompanied by a redacted form of the submission and chronology suitable for publication on the Internet.
It is possible that the applicant failed to comply with para (b), for example by accidentally including the defendant’s name. Alternatively, perhaps the registry made an error, for example by posting the non-redacted document on the website. Either way, occasional errors [or incidents] of this sort are inevitable when dealing with complex documents. While they certainly should be taken seriously, they are also a sign of the futility of suppression in an internet age. Indeed a simple Google search of the case’s lower court citation readily reveals multiple documents (for example, ones hosted on the NT DPP website) which reveal IMM’s full name.
The NT News quotes the Court’s response as follows:
The publication of IMM’s identity sparked a brief internal investigation at the High Court over the weekend. A spokesman for the High Court said yesterday that the document “clearly shows his full name” but later said he “didn’t see anything in it” that might be an issue. The spokesman also said that even if High Court staff were found to be at fault in the publication of the document, they may be technically exempt from the suppression order because it was issued by a lower court.
Whether the Court’s staff are immune from the NT suppression regime is an interesting question and it may depend on whether the facts fell within the scope of an NT offence provision or the scope of any court order. As Gageler J made clear earlier this year, the current High Court would of course be loath to undermine a lower court ruling (or potentially reveal a crime victim’s confidential identity). A past counter-example is the Court’s 2006 decision, Phillips v R, where the Court used the full name of the defendant (who was a child when some of the alleged offences were committed) even though lower courts only used initials. In its reasons, the Court explained that the accused had not complied with a practice direction requiring him to use his initials in his application to the High Court and its view that Queensland’s then regime for the privacy of juvenile defendants did not apply to Phillips because he was not investigated until he was 17. While such procedural rulings are a common part of all courts’ business, they are perhaps more significant when made by the full High Court, both because of the high profile of the Court’s decisions and because such rulings typically cannot be appealed.