Thursday, November 10, 2011

Agreement in Principle

[Business resumed.]

Mr GREG SMITH (Epping) [11.42 a.m.]: My colleague the member for Terrigal has given the House the Coalition's speech supporting the Court Suppression and Non-publication Orders Bill 2010. However, I should like to add a few comments to what has been said. I and many of my colleagues have been involved in some difficult situations involving witnesses who were informers, were just giving evidence in a case or were due to give evidence. In one case the person was a professional informer and was likely to be a witness from time to time in a closed court. The bill does not specifically mention the use of pseudonyms, but I believe the terminology "suppression order" covers that matter. Using pseudonyms is an important tool for undercover police and informers. Pseudonyms apply also in cases when the accused has the same surname as the victim or witness, and in cases where the accused is under age at the time of the prosecution.

Court decisions early in the 1990s suppressed names of accused not for reasons of similarity but just for their protection from publicity. The Court of Appeal ruled that such decisions were invalid and that if accused people were eligible to be named, they must fall into the open justice system and have their names published, despite any disgrace that may be brought to bear. Criminal proceedings do bring an element of disgrace, particularly those involving former schoolteachers, priests, scoutmasters and people of similar vocations who are likely to attract adverse publicity. Most people charged with criminal offences do not receive much publicity. Thousands of offences are prosecuted in the courts, but only big names or people from a sensitive or professional background are likely to be punished through being named. However, publishing the names of accused persons is part of our justice system as a discouragement of criminal behaviour. It is a prosecutorial deterrent to discourage committing crime.

I am pleased that in clause 3 the definition of "court" means not only the Supreme Court, Land and Environment Court, Industrial Court, District Court, Local Court or Children's Court, but also "any other court or tribunal, or a person or body having power to act judicially, prescribed by the regulations as a court for the purposes of this Act". In the past there has been some lack of clarity about the status of committal proceedings and whether they are a court hearing or an inquiry. Inquiries used to be caught under the Justices Act. Some magistrates would not close a committal hearing or make orders suppressing names or for non-publication. I understand that caution, but sometimes that decision led to Supreme Court proceedings. I recall at one committal hearing involving my namesake, Arthur Stanley "Neddy" Smith, some witnesses were given the pseudonyms Green, Brown or White or something similar. The prosecutor wanted those names suppressed because those people were risking their lives as they were allegedly involved in the crimes with which Neddy Smith was charged. Ultimately, Neddy Smith was convicted of some of those charges, some of which involved murders.

A particular magistrate—Pat O'Shane is her name—refused to suppress the names. There was a flurry of activity and at great expense an action was taken before a single judge of the Supreme Court who ordered that the names be suppressed. The matter went to the Court of Appeal which, under the then Chief Justice, Justice Gleeson, in a leading judgement clarified when names should be suppressed and stated that it did not matter if it was a committal hearing. Suppression orders were made in earlier cases involving blackmail and similar issues. For sexual assault proceedings courts have had powers for many years to close the court, particularly if a child is involved but also for an adult, or to suppress the names of witnesses.

That has been a good thing. It has meant that the victims in those cases and their witnesses—sometimes people giving evidence of complaint, sometimes mothers or fathers—did not have to suffer the attendant bad publicity of the case. Many sex cases are not reported in the newspapers because most of them are conducted in closed courts or are under suppression orders. That is somewhat unfortunate because the public might think there are not many of those cases, and it might also not have the deterrent effect it otherwise would have. However, for the privacy of the victims, their families and some witnesses giving sensitive evidence it is necessary for courts to have those powers.

The name "John Fairfax and Sons" pops up in many cases involving suppression orders, closed courts and non-publication orders. The most celebrated decision was that of John Fairfax and Sons v Police Tribunal of NSW 1986 5 NSWLR at 465. I recall the most sensational police tribunal hearing involved Roger Caleb Rogerson as the subject of disciplinary proceedings. In the course of those proceedings a record of interview in which he had taken part was tendered and an attempt was made to suppress the name of a notorious informer. The tribunal, constituted by Judge Thorley, made that order. He felt he had power to make the order; the Court of Appeal said he did not.

I do not recall whether the informer's name subsequently was published by the Sydney Morning Herald but certainly it was available to be published. There may have been other conditions. However, that informer later featured in the Rogerson trial in which I was junior counsel for the Crown. We got him; he was convicted of conspiracy to pervert the course of justice. The former senior Crown Prosecutor, Bill Job, QC, who at that time was an acting deputy senior Crown Prosecutor because he had retired, put to Rogerson that he had an unsavoury association with Arthur Stanley Smith, or Neddy Smith as he also was known. He tried to deny it: he said, "He's one of my informers."

There is no doubt that Rogerson maintained that for some years, but the interesting fact was that Mr Job then showed him the records in a visitors register of Long Bay jail. Rogerson was the only regular visitor to Arthur Stanley Smith after he had been jailed for a murder that had taken place in Coogee Bay Road, or for some other murder, and Rogerson said, "Well, I've got to have some friends", or words to that effect. He said, "If you won't talk to me—none of you will talk to me—I've got to have some friends." It was quite a moving moment! He was convicted but the conviction was quashed by the Court of Criminal Appeal. However, we got him back—if I may use that expression—in the High Court. The Court of Criminal Appeal proceedings continued to decide other questions, unsuccessfully for Mr Rogerson who went back to jail.