News: Court accused of undermining suppression order

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.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

6 thoughts on “News: Court accused of undermining suppression order

  1. Although the NT News refers to a ‘suppression order’ made by a court, a correspondent has told Opinions on High that no order has been made by any court. Instead, the NT Supreme Court changed the case’s name (replacing the defendant’s name with his initials) after special leave was granted to the High Court, and the High Court then followed suit. If correct, then any issue is one of practice (in relation to protection of privacy and consistency with lower court practice) rather than legality. The Phillips example discussed in the post remains a pertinent example of the Court not following a lower court’s practice on the name of a case.

  2. I know that in Queensland there is legislation (I think the Criminal Law Sexual Offences Act 1978) which allows a report appearing in a bona fide series of law reports, and other ‘official’ reports, such as the transcript, to contain the true name of, for example, the prosecutrix who complains of non-consensual intercourse.

    But the practice for many years in the Queensland Reports (I think a LexisNexis Butterworths publication) and indeed in the media neutral publications in Queensland Courts has been to use initials of the defendant or appellant when these would or might identify the complainant, likewise to not refer by name to a complainant or the complainant’s school or address. But I do believe these are entirely voluntary practices. The Act mentioned might limit what can be published in a newspaper report but not in the Queensland Reports.

    I have often wondered whether using initials does effectively identify parties for people who know just a little about who’s who in a matter…and their names.

    • I agree that initials aren’t fully anonymous, but nor are most reasons for judgment, really, unless they are very vague about the facts. At least in one instance (the Phillips case I mention in the post), the Queensland courts opted for a first and last letter of the surname (PS) rather than initials.

      In place of initials, Victoria has introduced a system of pseudonyms (which I presume are computer-generated); they carry the advantage of making the case names easier to search for, but I do wonder how I’d feel if my name showed up as the pseudonym for some alleged paedophile.

  3. While this seems mostly like an issue for the IT department, it’s sloppy stuff (at best).

    The courts wouldn’t have much sympathy for a newspaper ‘slipping up’ and publishing an initialised name (suppressed or otherwise). They should look dimly on their own staff for making a similar stuff up.

    The unredacted document does indeed date from the special leave application. I still have no explanation as to how it remained online.

    You make a good point about the problem of suppression in the google age (high profile criminal jury trial, anyone?). The courts (all courts) have, in my opinion, done a pretty patchy job of adapting to the internet age, especially given the increasing demands and suppressions they lump the media.

    On balance, the web does more good than harm for the courts (as it does with news outlets) but they should also realise from things like this that when you stuff up online, you stuff up in front of the whole world.

    And finally, it’s worth noting that the stakes here are pretty high: a forthcoming retrial, an alleged victim who is still a minor, and an alleged perpetrator who might be found innocent. The high court are fortunate that a reporter (me) stumbled on this rather than some nut job who spends their evenings updating the MAKO register.

  4. Your post does not perhaps fully make clear that the accused person was the appellant — rather, it reads as if the appellant/applicant was different from the “defendant” (accused). If it was the appellant’s chronology which revealed his name, which seems likely, it is possible that he caused his own name to be published by the Court if his lawyers filed an un-redacted document that they certified was suitable for publication on the internet. (Of course it is also possible that the Registry published the wrong version in error).

  5. Yes, the chronology was filed by the defendant. The Rules actually specify that the ‘annotated written submissions’ (presumably including the chronology) must be signed, not by the defendant (unless he was unrepresented) but rather ‘the senior legal practitioner who is to present the case to the Court’. That would be Stephen Odgers SC in this case. Note that anonymity in this case, although perhaps a desirable outcome for IMM, is presumably intended for the benefit of the complainant in this case, rather than any of the parties.

    The question of who exactly ‘published’ the chronology that contained IMM’s real name turns on some unresolved issues of fact (i.e. who exactly made the ‘mistake’) and also a legal question of who is the publisher when it comes to the online repository of filed submissions. But, if it is right that there is no order in this case, then none of this is a legal issue anyway, just an administrative or policy one.

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