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Report No. 198

(b) Australia:

In Australia, the principle of 'inherent power' appears to be the basis of the orders passed by Courts as to 'anonymity' of witnesses. This is clear from the fact that these orders were passed in the absence of statutory powers. In the Consultation Paper (see para 6.3.7), we summarized the Australian position as follows:

"Summarising the position, the Courts in Australia have agreed that in cases where there is evidence of likelihood of danger or harm to the witnesses, or their families, the Court has inherent power to grant orders as to anonymity and this procedure is not confined to serious cases of terrorism or police informers or extortion or police undercover agents. What is material is the proof of reasonable likelihood of danger to the witness. Such a procedure for screening and anonymity is held to be consistent with the right of the accused for fair trial. Video taped evidence is also admissibl"

The Supreme Court of Victoria in Jarvie & Another v. The Magistrate's Court of Victoria at Brunswick and others: 1995 (1) VR 84 declined to follow the Queensland decision in R v. The Stipendiary Magistrate a Southport ex parte Gibson: 1993(2) Qd. R. 687. The Court held that it could grant anonymity orders to two undercover police officers at the stage of committal proceedings under inherent powers. It was held that though, on facts, the trial Court did not grant such an order, nevertheless the Court did have the 'jurisdiction' to make such orders. The Court's order was applicable at the stage of committal proceedings as well as trial. The Supreme Court held that the principle was not limited to undercover police officers. It applied also to:

'other witnesses whose personal safety may be endangered by the disclosure of identity'

In Witness v. Mausden & Another: 2000 NSW (CA) 52, in a defamation action, the Court of Appeal (Heydon JA, Mason P and Priestly JA) set aside an order of the trial Court and granted anonymity holding that the right to open trial can be subjected to a 'minimalist interference' by granting anonymity orders.

Witness Identity Protection and Witness Protection Programmes Back

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