Privacy Law and Policy Reporter
An application was made to the Supreme Court by Moles for an order that the inquest into the death of Joseph Gilewicz be removed into the Supreme Court. Gilewicz had been killed by a person described at the inquest as Sierra 4, who had been engaged at the time in a police operation involving members of the Special Operations Group. Sierra 4 and the Commissioner of Police both appeared at the hearing of the application and sought, inter alia, orders to ensure that the identity of Sierra 4 was protected from disclosure. They argued that if Sierra 4's identity was disclosed, he and his family would be exposed to the risk of personal harm.
The trial judge heard evidence from a superintendent of police about a range of matters connected with Gilewicz' death and Sierra 4, including death threats made to Sierra 4, apparent surveillance of Sierra 4's home by unknown persons, and threats of retribution against the Special Operations Group by associates of Gilewicz. He concluded, however, that there was insufficient evidence of risk of harm to Sierra 4 or his family likely to flow from the disclosure of his identity at the inquest to justify a suppression order.
On appeal, the findings of the trial judge were upheld. The Court of Appeal found that much of the superintendent's evidence was inadmissible but that, in any event, the evidence suggested that any risk of harm to Sierra 4 came from people who already knew his identity. Fresh evidence heard by the Court of Appeal did not convince the court that there was sufficient evidence of actual risk of harm to Sierra 4 or his family.
Zeeman J noted that court proceedings should as a general rule take place in public, and that departure from this general rule should be permitted only where there was evidence that the proceedings would lose utility unless public access or publication were limited. It was not sufficient to show that publicity might deter a party from instituting proceedings in the future, nor to seek to rely upon claims to privacy by individual litigants.
The Commissioner for Police further contended that disclosure of the identity of members of the Special Operations Group posed a risk for State and national security and would not be in the public interest. The Court of Appeal held, however, that in fact the opposite was the case. Concealment of the name of a serving police officer would be likely to undermine confidence in the legal system, because it would suggest that the law applies different tests depending upon a person's occupation or status. The importance of an open system of justice was paramount.
For recent cases on disclosure of identities of parties before other Australian courts, see J v L&A Services (noted (1994) 1 PLPR 22) and DM v TD ( (1994) 1 PLPR 22) and DM v TD ( (1994) 1 PLPR 30).