Report No. 198

In Jarvie, the Court further held that:

(1) at a minimum, the true name and address of a witness must always be disclosed in confidence to the Court.

(2) the same policies which justify the protection of informers as an aspect of public immunity also justify the protection of undercover police officers. However, the claim to anonymity can also extend to other witnesses whose personal safety is endangered by disclosure of their identity.

(3) in deciding whether undercover police officers should be granted anonymity, the Court must balance the competing public interests, namely, (i) the preservation of anonymity, (ii) the right of the accused to a fair trial, which includes his being able to establish those matters going to his credit, and (iii) the interest in public proceedings, and

(4) once the defence establishes that there is good reason to think that non-disclosure would result in substantial prejudice to the accused, disclosure must be directed. In a strong case, the necessary substantial prejudice to the accused could consist in his inability to gather and use material bearing on the credibility of the prosecution witnesses.

6.3.3 In a series of cases, Courts in Australia have treated informers as falling under a special category usually requiring a special protection: Cain v. Glass (NUL)(1985) NSWLQ 230; (Mc Hugh JA said that the principle applied even to persons other than registered informers). R v. Smith: (1996) 86 A Crim R 308. (The earliest English case in Marks v. Beysus: (1890) 25 QBD 494 was referred to.) This was so, even though in Raybos Australia Pty v. Jones: 1985 2NSWR 97, the principle of open administration of justice was laid down.

6.3.4 As to other types of cases, in John Fairfax Group Pty Ltd.vs. Local Court of New South Wales: (1991)26 NSWLR 131, the Court accepted the need for 'pseudonym orders' in extortion cases. Mahoney JA said that if such orders were not to be made:

"victims would not approach or cooperate with the police authorities. These consequences, if they flowed from the disclosure of the victim's 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'

6.3.5 The recent decision of the New South Wales Court of Appeal in Witness v. Marsden & Another: 2000 NSWCA 52, (a defamation action) contains an elaborate discussion on the subject. The Court of Appeal, speaking through Heydon JA (with whom Mason P and Priestly JA agreed) set aside the judgment of Levine J and granted anonymity order and issued the following important directives (4) to (6):

"(4) The witness is to be addressed and referred to in the Court only by a pseudonym;

(5) Any matter which is likely to lead to the identification of the witness is not to be reported by those in Court;

(6) No photograph, 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 in the Court or within its precincts."

The above case, as already stated, pertained to defamation of plaintiff by the defendant, alleging homosexuality on part of plaintiff. The witness was an inmate of a gaol in New South Wales and he had given a statement to the police supporting the defendant. The defendant's counsel moved an application to examine the witness by use of a pseudonym, as there was likelihood of danger to the witness's life. This limited issue was tried separately and for that purpose, the witness's answer in chief-examination was given to the opponent and the plaintiff's counsel gave a list of questions to the defendant's witness to answer.

They were answered. The Judge had put two questions. Then the defendant's counsel re-examined the witness. The witness stated he had sought pseudonym because he feared for his life and the publicity of giving evidence would embarrass his family and affect the physical health of his parents. If he sought protective custody, he would lose wages and remissions. The trial Judge dismissed the application for anonymity on the ground that the fear expressed by the witness was too generalized. Added to that, the witness was already in custody.

But the New South Wales Court of Appeal disagreed. It referred to the witness's fear that if he should give evidence of his homosexual relationship with plaintiff, he may get killed. The prison in which the witness was lodged was a notorious one and there were forty murders inside the prison in ten years, the last about a few weeks before the application.

The Court of Appeal accepted that these fears were genuine and reasonable. The fears about violence to a person in gaol were also real. The witness's fear of embarrassment to family was also real though it only played a small part in the argument. Granting a pseudonym was a minimalist interference into the right of the opposite party for open justice. The Court observed:

"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. There are evils which it is necessary to avoid by that degree of minimalist interference. Without the order, 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."

The Court referred to certain directions given by Hunt J in R v. Savvas: (1989) 43A Crim R 331 at 339. These were:

"(1) Each of the witnesses referred to in the two affidavits of Supdt. Brian Harding sworn 24 Aug. 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."

Thus, the Court of Appeal granted an order for a pseudonym in the manner referred to above.

6.3.6 We may finally add that in Australia, there have been different statutes on witness protection. They are:

(a) Witness Protection Act 1994 (Cwith);

(b) Witness Protection Act 1995 (NSW);

(c) Witness Protection Act 1996 (S Au);

(d) Witness Protection Act 1996 (Australian Capital Territory) (National Capital Territory Act has further amended by the Bill of 2003);

(e) Witness Protection Act 2000 (Tas);

(f) Witness Protection Act 1991 (Vic);

(g) Witness Protection (Western Australia) Act 1996 (WA);

(h) Witness Protection Regulation 2001 (Queensland).

These Acts deal with a slightly different aspect, namely, witness protection and do not deal with anonymity or the screening aspects. But the provisions of section 2A(1)(b) of the Australian Evidence Act 1989 deal with 'special witnesses' who are described as persons suffering from trauma or are likely to be intimidated or to be disadvantaged as witnesses. Special arrangements can be made by the Court in their favour including exclusion of public or the accused from the Court. Video taped evidence can also be allowed.

6.3.7 Summarizing 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 a 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 admissible.

(c) 6.4 New Zealand

We shall next turn to the case law from New Zealand. A survey of the case law discloses that the Courts did not accept the inherent power of the Court to pass anonymity orders but felt that it was for the legislature to make adequate provision. The legislators intervened in 1986 initially to protect "undercover" police officers and again in 1997, the legislature widened the Court's power to protect other types of witnesses. These amendments are very comprehensive and provide a very clear legislative scheme for witness anonymity and protection and will be referred to in detail in the course of the discussion below.

6.4.1 R v. Hughes: 1986(2) NZLR 129 (CA) was decided in 1986 by the New Zealand Court of Appeal and the majority said that it would not compromise the right of the accused to a fair trial and held that the question of balancing the right of witnesses to anonymity and of the accused for a fair trial were matters for Parliament rather than for judicial decision.

The Court was not inclined to lay down exceptions. It was held by the majority that undercover police officers who gave evidence in Court in the case must give their true names, at least to the defence, even though this may lead to disclosure of their real identity and expose them to the risk of retaliation.

The Court held that the information as to the identity of the witness was prima facie material to the defence of a criminal charge. Two of the Judges went further and stated that otherwise, the right of the accused to cross examine the witness would get 'emasculated'. (The word 'emasculated' was used by Justice Stewart of the US Supreme Court in Smith v. Illinois 320(1968) 390 US 129). The Court warned that any relaxation of the right to open trial and cross-examination would be a 'slippery slope'.