Batt-Rawden v CXD4
[2024] NSWSC 1247
•18 September 2024
Supreme Court
New South Wales
Medium Neutral Citation: Batt-Rawden v CXD4 [2024] NSWSC 1247 Hearing dates: 18 September 2024 Date of orders: 18 September 2024 Decision date: 18 September 2024 Jurisdiction: Common Law Before: Garling J Decision: See [23]
Catchwords: CIVIL PROCEDURE – Suppression and non-publication orders – Application by the defendant for suppression orders and pseudonym orders – Where the cause of action arises out of conduct which was the subject of criminal proceedings – Where the criminal proceedings were dealt with on the basis that the victim and the defendant were under the age of 18 and fell within the definition of a child within the meaning of the Children (Criminal Proceedings) Act 1987 – Whether the suppression orders and pseudonym orders are necessary for the interests of justice – Application granted.
MEDIA AND COMMUNICATIONS – Publication – Court Suppression and Non-Publications Orders Act – Where publicity concerning the criminal proceedings may have identified the defendant – Whether the suppression orders and pseudonym orders are necessary for the interests of justice – Application granted.
Legislation Cited: Court Suppression and Non-Publications Orders Act 2010
Limitation Act 1969
Children (Criminal Proceedings) Act 1987
Cases Cited: Rinehart v Welker [2011] NSWCA 403
Texts Cited: Not Applicable
Category: Principal judgment Parties: Andrew Batt-Rawden (P)
CXD4 (D)Representation: Counsel:
Solicitors:
M Keaney (P)
J Downing SC (D)
G J Gooden (P)
Uther Webster & Evans Lawyers (D)
File Number(s): 2024/302876 Publication restriction: Not Applicable
EX TEMPORE JUDGMENT
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This is an application by the defendant, by way of a Notice of Motion for an order pursuant to s 7 of the Court Suppression and Non-Publications Orders Act 2010 ("the Suppression Act"), to prohibit the publication or disclosure of the name and any other information or visual images tending to reveal the identity of, or otherwise concerning, the defendant in the proceedings or any person who is related to or living with the defendant, including his spouse and children. As well, an order is sought that a pseudonym be substituted for the name of the defendant and used in these proceedings.
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The plaintiff opposes the order, submitting that the defendant has not discharged the onus of persuading the Court that it is necessary for any suppression order to be made, and that the defendant has not discharged his burden of demonstrating that the primary objective of the administration of justice, which is to safeguard the public interest in open justice, would be maintained if such an order was made.
Present Claims
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The claim by the plaintiff is for compensatory damages including aggravated damages arising out of conduct which occurred between 1992 and 1996 at his family home, which conduct is alleged to constitute sexual abuse as that term is used in s 6A of the Limitation Act 1969. Unless the conduct falls within the definition of sexual abuse in that legislation, then the claim being made by the plaintiff could not proceed because of the fact that it was not commenced until after the expiry of the relevant limitation period. The proceedings were filed on 16 August 2024 and as yet no defence has been filed.
Previous Criminal Proceedings
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The applicant draws attention to the undisputed fact that the claim against him in this Court includes conduct for which he was criminally charged in 2020 and for which he was convicted and sentenced by Pickering SC DCJ on 12 July 2022. At that time, the defendant was sentenced with respect to four offences of aggravated indecent assault and a number of offences relating to aggravated acts of indecency. The conduct the subject of these proceedings and the criminal proceedings occurred at a time when both the plaintiff, who was the victim, and the defendant were under the age of 18. Both fell within the definition of a child within the meaning of the Children (Criminal Proceedings) Act 1987 with the consequence that the provisions of s 15A of the Children (Criminal Proceedings) Act are applicable. That provision is as follows:
“15A Publishing and broadcasting of names prohibited
(1) The name of a person must not be published or broadcast in a way that connects the person with criminal proceedings if—
(a) the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed, or
(b) the person appears as a witness in the proceedings and was a child when the offence to which the proceedings relate was committed (whether or not the person was a child when appearing as a witness), or
(c) the person is mentioned in the proceedings in relation to something that occurred when the person was a child, or
(d) the person is otherwise involved in the proceedings and was a child when so involved, or
(e) the person is a brother or sister of a victim of the offence to which the proceedings relate, and that person and the victim were both children when the offence was committed.
(2) This section applies only to the publication or broadcast of a person’s name to the public, or a section of the public, by publication in a newspaper or periodical publication, by radio or television broadcast or other electronic broadcast, by the Internet, or by any other means of dissemination.
(3) The publication of information to an Internet website that provides the opportunity for, or facilitates or enables, dissemination of information to the public or a section of the public (whether or not the particular publication results in the dissemination of information to the public or a section of the public) constitutes the publication of information to the public or a section of the public for the purposes of this section.
(4) This section applies to the publication or broadcast of the name of a person—
(a) whether the publication or broadcast occurs before or after the proceedings concerned are disposed of, and
(b) even if the person is no longer a child, or is deceased, at the time of the publication or broadcast.
(5) A reference in this Division to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
(6) A reference in this Division to a person who appears as a witness before a court in any criminal proceedings includes a reference to a child who gives evidence in the form of a recording in proceedings in accordance with Division 3 of Part 6 of Chapter 6 of the Criminal Procedure Act 1986.
(6A) ...
(7) A person who publishes or broadcasts the name of any person the publication or broadcasting of which is prohibited by this section is guilty of an offence.
Maximum penalty—500 penalty units (in the case of a corporation) or 50 penalty units or imprisonment for 12 months, or both (in any other case).
(8) ...”
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These provisions have the substantive effect of prohibiting the publication or broadcast of any information, being the name, any other information, picture or other material that identifies or else is likely to lead to the identification of an individual, where that person is the subject of criminal proceedings and where the person was a child at the time the offence occurred.
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The restriction on publication in s 15A is well known and well recognised. Subsection (4) of s 15A, as noted above, applies the restriction whether or not the publication or broadcast occurs before or after the proceedings concerned are disposed of, and whether or not the relevant person is an adult or is deceased.
Extensive Previous Publicity
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The defendant was known in the criminal proceedings by a pseudonym and the evidence establishes that essentially, by reason of the employment position held by the defendant at the time, there was considerable publicity about the criminal proceedings. That publicity occurred not only in the fringe media, but also in media that might be regarded as more mainstream. I do not need to express a view on whether or not previous publicity did or did not identify the defendant contrary to s 15A, but I am satisfied that such was the extent of the publicity and the particular words which were used in all of the different forms of the media that would have had the effect that the defendant was identified, certainly by those who knew him, or of him.
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The evidence also establishes that that previous publicity is readily able to be found by searches on the Internet. I am certainly persuaded that it is no secret that the defendant has been dealt with in criminal proceedings with respect to the conduct which is part of the conduct relied upon by the plaintiff in this case.
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Since the defendant pleaded guilty to a number of charges, and agreed to a statement of facts upon which those guilty pleas were based, I regard it as inevitable in the conduct of these proceedings that a plaintiff properly advised would seek to rely upon those pleas of guilty, and the statements of agreed facts as containing admissions which support the proof of the plaintiff's case in these proceedings.
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In respect of particular causes of action in these proceedings, which were neither the subject of the Statement of Agreed Facts or the pleas of guilty, such admissions as were made by way of pleas of guilty and the agreement to the Statement of Agreed Facts would, at the very least, be likely to be relevant in these proceedings as tendency evidence. It is inevitable, in my view, that the fact of and contents of the criminal proceedings will form an integral part of these civil proceedings.
Evidence of Current Fears
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The defendant has instructed his solicitors, and I accept, that when media reports of his criminal charges became known, his employment was effectively terminated, the nature and content of the media coverage resulted in friends and former colleagues contacting him, he experienced humiliation and he has felt sufficiently fearful from the time of those proceedings and up to the present to have security cameras installed at his home. He has further informed his solicitors that he is worried about the impact renewed publicity and media coverage would have on his children who are nine years old and five years old, that he has contemplated suicide as a response to these proceedings, and seemingly, as a reaction to any publicity. Finally, he has instructed his solicitors that he also believes if there is renewed coverage and publicity that he will lose his current employment.
Legal Principles
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Before the Court can make an order that there be any suppression or non-publication of any material under the Suppression Act, the Court has to be satisfied that such an order is necessary. That is because the grounds for the making of an order under the Suppression Act as contained in s 8, each involve an applicant establishing the necessity for the order to be made to relevantly "prevent prejudice to the proper administration of justice”: s 8(1)(a), or else to avoid causing undue distress or embarrassment to a party in criminal proceedings involving an offence of a sexual nature: s 8(1)(b), or else where it is necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice: s 8(1)(e).
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The meaning of "necessary" was discussed in the decision of the Court of Appeal in Rinehart v Welker [2011] NSWCA 403, [27]-[31], per Bathurst CJ and McColl JA. Their Honours noted at [31] that mere convenience, reasonableness or the sensibleness of an order being made does not mean that it is necessary to as to accord with the legislation.
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In making any order under the Suppression Act, the Court is obliged to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: see s 6.
Discernment
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I have decided that it is necessary that an order by way of a suppression order and the imposition of a pseudonym is necessary in this case.
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The first matter is this, that there exists a statutory prohibition by reason of s 15A of the Children (Criminal Proceedings) Act against the publication of the name and identification material with respect to anybody involved in criminal proceedings as a child. That prohibition applies, and continues to apply now and in the future, notwithstanding the termination of the criminal proceedings. It applies even after the death of the defendant.
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The Children (Criminal Proceedings) Act is an integral part of the administration of justice. Such a ban on publication relating to children's proceedings exists because it is well recognised as part of the administration of justice that proceedings in the Children's Court are held in the absence of the public, children's names and identifying information are not revealed unless there is a statutory exception, and that such anonymity is accorded to Children's Court procedures because it is in the best interests of the child, who is either a witness, a victim or a defendant in those proceedings, to have the benefit of the cloak of anonymity.
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The structure of the administration of justice in New South Wales is that children who commit offences or engage in conduct of a kind which brings them before the Court are entitled to anonymity because it is well recognised that children engage in conduct, commit crimes and are brought to justice at a time of intellectual immaturity and social immaturity. Children are entitled to expect that such conduct as they engage in is dealt with in a way which gives them a second chance in life and a chance to rehabilitate themselves. The administration of justice is served by preserving the anonymity of those engaged in criminal proceedings in the Children's Court.
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In my view it is necessary to make an order in this case in aid of ensuring that these proceedings do not become the vehicle for the identification of the defendant in a way which leads anybody reporting these proceedings in breach s 15A of the Children (Criminal Proceedings) Act. As I have earlier said, I regard it as inevitable that the conduct the subject of the criminal proceedings, and indeed the conduct of those criminal proceedings, including pleas of guilty and agreement to statements of fact will become an integral part of this case.
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I would also accept that a suppression order is necessary to avoid causing undue distress or embarrassment to the defendant who was a party in criminal proceedings which involved an offence of a sexual nature: s 8(1)(b) Suppression Act.
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The defendant has been dismissed from his employment, in effect, as a consequence of previous publicity. He has been the subject of humiliation. He has contemplated suicide and is naturally concerned about any impact upon his young children. In my view, an order which suppresses his name and identification details is necessary to avoid causing him undue distress or embarrassment.
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Finally, and essentially for the same reasons as I have previously articulated, it is in the public interest for the anonymity of people involved in Children's Court proceedings, particularly of a criminal nature, be preserved and that public interest significantly outweighs the public interest in naming the defendant here as part of the principle of open justice.
Orders
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Accordingly, I will make the following orders:
Order, until further order, or a period of 50 years, whichever is the sooner, pursuant to s 7 of the Court Suppression and Non Publication Orders Act 2010 (NSW), that the publication of the name of the defendant and any information tending to reveal the identity of the defendant including but not limited to the identity of his spouse or children, be prohibited except as may be necessary for the proper conduct of the proceedings, upon the following grounds as set out in s 8:
that the order is necessary to prevent prejudice to the proper administration of justice;
that the order is necessary to avoid causing undue distress or embarrassment to the defendant; and/or
that it is otherwise necessary in the public interest for the order to be made, and that public interest significantly outweighs interest in open justice.
Order that the order is to apply throughout the Commonwealth of Australia.
Order, until further order, that the defendant in these proceedings:
be known as CXD4;
be described in all pleadings and other documents filed or served in the proceedings as CXD4; and
except as may be necessary for the proper conduct of the proceedings, be only referred to as CXD4.
Order that the name of the proceedings be changed so that the proceedings be referred to as Andrew Batt-Rawden v CXD4.
Order that the affidavit of Michael Hempsall dated 16.9.24 and its Exhibit, BJB-1 be placed in a sealed envelope and marked confidential, which is envelope is not to be opened without the leave of a Judge of this Court.
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Decision last updated: 09 October 2024
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