PARTIES:	THE QUEEN
V
BARA BARA

TITLE OF COURT:	In the Supreme Court of the Northern
Territory of Australia

JURISDICTION:	Supreme Court of the Northern Territory of Australia exercising Territory jurisdiction

FILE :	126 of 1992

DELIVERED:	Delivered at Darwin 24 December 1992 HEARING DATES:	Heard at Darwin 17 December 1992 JUDGMENT OF:	Mildren J
CATCHWORDS:

ABORIGINALS		Crimes	by	Aboriginals		Homicide Application	by	accused		to		suppress	name	of	deceased

victim - Standing to apply notice of customary law
Evidence Act (NT),s57(1)(a)

- Threat of 'payback' - Judicial

Holland v Jones (1917) 23 CLR 149, applied.
Onus v ALCOA of Australia Limited (1981) 149 CLR 27,  applied

ABORIGINALS - General - Application by accused to suppress name of deceased victim - Whether offence against tribal custom constitutes "likely to offend against  public decency" Standing of  Aboriginal  from  traditional community in such circumstances
Evidence Act (NT),s57(1)(a)

Holland v Jones (1917) 23 CLR Onus	v	ALCOA	of	Australia applied.

149, applied.
Limited	(1981)	149	CLR	27,

CRIMINAL	LAW		AND		PROCEDURE		-	Jurisdiction,		practice	and procedure		-		Miscellaneous	powers	of		courts	and		judges	- Suppression		of	name	of	deceased	Aboriginal		victim Publication	"likely	to		offend		against	public	decency" Place of tribal custom under Evidence  Act (NT) - standing of accused to make application
Evidence Act (NT),s57(1)(a)

Holland v Jones (1917) 23 CLR 149, applied.
Onus	v	ALCOA	of	Australia	Limited	(1981)	149	CLR	27, applied.
Quinn v Given (1980) 29 ALR 88, applied.
ADMINISTRATIVE LAW - Evidence - Locus standi - Standing - Application to suppress name of deceased victim - Accused member of same community as victim - Interest greater than any other member of public - Tribal custom considered

Evidence Act (NT),s57(1)(a)
onus	v	ALCOA	of	Australia	Limited	(1981)	149	CLR	27, applied.
EVIDENCE - In general - Suppression orders - Application by accused to suppress name of deceased Aboriginal victim - "Publication of evidence likely to offend against public decency" Crown facts admitted by accused  constitute evidence - Standing of accused to apply - Judicial notice  of tribal cust9m No general right in  public  to  be informed of deceased victim's name by media - Law permits publication unless prohibited under Evidence Act (NT)
Evidence Act (NT),s57(1)(a)
G v The Queen (1984) 35 SASR 349, applied.
Holland v Jones (1917) 23 CLR 149, applied.
Onus	v	ALCOA	of	Australia	Limited	(1981)	149	CLR	27, applied.
Quinn v Given (1980) 29 ALR 88, applied.
STATUTES  -  Interpretation - Evidence Act - "Evidence likely to offend against public  decency"  Evidence  includes agreed Crown facts Offence to  "public  decency"  not limited to blasphemy, obscenity, profanity or sexual indecency Includes lack of propriety or good taste, unbecoming or unseemly
Evidence Act,s57(1)(a)
Quinn v Given (1980) 29 ALR 88, applied.

STATUTES	-	Operation and effect of statutes - Application to suppress			name of deceased	aboriginal		victim		-	Whether publication		"likely	to	offend			against	public	decency" standing	of				accused		to		apply		-	Account		taken		of		tribal custom
Evidence Act (NT) ,s57(1)(a)
Holland v Jones (1917) 23 CLR 149, applied.
Onus	v	ALCOA	of	Australia	Limited	(1981)	149	CLR	27, applied.
Quinn v Given (1980) 29 ALR 88, applied.

REPRESENTATION:

Counsel Applicant: Respondent:

W Somerville R Wallace

Solicitors Applicant: Respondent:

NAALAS DPP

Judgment Category classification: CAT A Court Computer Code: 9250231
Judgment ID Number: MIL92043 Number of pages: 5
General Distribution

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT DARWIN

N 126 of 1992 BETWEEN:
THE QUEEN

AND:
BARA BARA

Respondent

Applicant

CORAM: Mildren J

REASONS FOR RULING
(Delivered 24 December 1992)

In this matter, Mr Somerville, who appeared for  the accused, made an application pursuant to s57 of  the Evidence Act, that the name of the deceased be prohibited from publication. On 17 December 1992, I made an order prohibiting publication of any part of the evidence before me, which referred to the deceased's name. I said that I would provide reasons at a later time. I now publish those reasons.

The accused, who is an Aboriginal juvenile, aged fourteen, has pleaded guilty to the manslaughter of the deceased at Angurugu, Groote Eylandt, in the Northern Territory, on 30 August 1992. The deceased was then aged seventeen. Both the accused and the deceased are from Angurugu.

The basis of Mr Somerville's application was that  the people of Groote Eylandt would not like the deceased's name published. No evidence was led in support of the application, other than Mr Somerville's assertion from the Bar table. Mr Wallace, who appeared on behalf of the Director of Public Prosecutions, opposed the application, firstly on the ground that I had no power to make the order

sought, and secondly on the ground that there were other people in Australia who may not have heard of this matter, and had every right to be informed of it, through  the media.

Although no point was taken at the time, there may also be  a question as to the standing of the accused to make the application.

Section 57 of the Evidence Act provides as follows:
"57. PROHIBITION OF THE PUBLICATION OF EVIDENCE AND OF NAMES OF PARTIES AND WITNESSES
Where it appears to any Court -
that the publication of any evidence  given or used or intended to be given or used, in any proceeding before the Court,  is likely to offend against public decency; or

that, for the furtherance of, or  otherwise in the interests of, the administration of justice, it is desirable to prohibit the publication of the name of any party or intended party to, or witness or intended witness in, such proceeding,

the Court may, either before or during the course of the proceeding or thereafter, make an order -

directing that the persons specified  (by name or otherwise) by the Court, or that all persons, except the persons so specified, shall absent themselves from the place wherein the Court is being held while the evidence is being given;

forbidding the publication of the evidence, or any specified part thereof, or of any report or account of the evidence, or any specified part thereof, either absolutely or subject to such conditions, or  in  such terms or form, or in such manner, or to such extent, as the Court approves; or
forbidding the publication of the name of  any such party or witness.
Where the Court makes an order under subsection (1)(iii), the publication of any reference or allusion to any party or witness, the name of whom,

is by the order forbidden to be published, shall, if the reference or allusion is, in the opinion of the Court hearing the complaint for the alleged offence, intended or is sufficient to disclose the identity of the party or witness, be deemed to be a publication of the name of the party or witness."

This section specifically permits the court, in the circumstances envisaged therein, to prohibit  the publication of the name of a party or a witness to a proceeding before the court. Unlike legislation in some other jurisdictions, there is no specific power to prohibit publication of the name of the victim of a crime: c.f. for example, s80(1) of the County court Act 1958 (Vic); and s4(1)(a) of the Judicial Proceedings Reports Act 1958 (Vic) and s6 of the Sexual Offences (Evidence and Procedure) Act 1983 (NT) both of which enable the identity of the victims of sexual offences to be protected.

Accordingly, if the power exists, it must rest upon sub­ para (a): i.e. that the publication of "evidence"  is "likely to offend against public decency."

The Act does not define what is, or is not, "evidence." In this case, there was no oral testimony; it being a guilty plea, the material before me consisted  of the oral facts and submissions made by counsel. I consider that, in criminal proceedings, when there is a plea of guilty, the facts orally presented to the court from the Bar table by the prosecutor and admitted by the accused are "evidence" within the meaning of s57 of the Act: see Quinn v Given (1980) 29 ALR 88 at 95-6. The facts as presented to me by  Mr Wallace included the deceased's name. Those facts were admitted by counsel for the defendant. In those circumstances it seems to me that the deceased's name was part of the evidence before me.

The next matter is whether publication of that evidence is likely to offend against "public decency." The word

"decency"	is defined	by the Shorter	Oxford	Dictionary	as follows:
"1. Appropriateness to the circumstances of the occasion; fitness, seemliness, propriety; what is appropriate. 2. Orderly condition of civil or social life. 3. Propriety of demeanour; due regard to what is becoming."

The Macquarie Dictionary definition is
"1.	The	state	or	quality			of	being Conforming		to the recognised		standards	of good		taste,	modesty		etc.	3.		Something proper."

decent. 2. propriety, decent or

Obviously something that is likely to offend against public decency is not necessarily limited to blasphemy, obscenity, profanity or sexual indecency. I think the meaning to be given to the expression is that which would be generally regarded by the public, or a significant section of it, as lacking in propriety or good taste, or unbecoming, or unseemly.

I consider that I am able to take judicial notice of the fact that it is extremely offensive to most Aboriginal Territorians, and contrary to most tribal customs, to speak of a dead man by his name. The courts have often insisted, in my experience, at least in this Territory, that witnesses do not refer to a deceased Aboriginal by name, but instead refer to him by such expressions as "the deceased", "the dead man" or something similar. I am of the view that this is so widely known in this community that every ordinary person may be presumed to be aware of it and that I am therefore able to take judicial notice of it: Holland v  Jones (1917) 23 CLR 149 at 153. In my opinion, publication of the deceased's name would be lacking in propriety and quite offensive to a significant section of the Northern Territory's community, bearing in mind that the Aboriginal population of the Territory represents approximately 22 per cent of the total population.

Finally, there is the question of the accused's standing to seek the order. I presumed, at the time the application was made, that the defendant or his immediate family  was in some danger of "payback" as a result of the killing. Obviously, publication of the deceased's name is likely to have the effect of increasing that danger. Further, the defendant is a member of the same community as the deceased and has therefore an interest greater than any other member of the public, or for that matter, any other Aboriginal not from that community, in seeking the order. I think these factors are sufficient to establish standing: c.f. Onus v Alcoa of Australia Limited (1981) 149 CLR 27. As  I mentioned previously, no challenge was made to the defendant's standing by Mr Wallace, and consequently that matter was not debated at the time. However, I note that, later when I considered an application for bail, the common understanding of both  sides was that there was a question of possible payback involved, although the risk was said to be perhaps somewhat greater to the defendant's father than to the defendant personally, due to the defendant's age and other factors. Nevertheless, I think any risk of payback to the defend ant - or for that matter - to his father, is sufficient to give the defendant standing in this case.

As to the point urged upon me by Mr Wallace that the rest  of Australia has an interest, and a right to be informed through the media, of the identity of the deceased, I do  not think that any such right exists. I consider that the most that can be said is that the law permits such publication unless it is prohibited by an order made under s57 of the Act: c.f. G v The Queen (1984) 35 SASR 349 at 350-51.