Edwards v The Queen (No 1)

[2022] NSWSC 1343

Supreme Court

New South Wales

Medium Neutral Citation:

Edwards v R (No 1) [2022] NSWSC 1343

Hearing dates:

4 October 2022

Date of orders:

4 October 2022

Decision date:

04 October 2022

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

Application for a non-publication order dismissed

Catchwords:

NON-PUBLICATION ORDERS – materials produced on bail application – open justice – access to materials provided to the Court

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Cases Cited:

Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21

Matthews v R (No 2) [2013] NSWCCA 194

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Category:

Procedural rulings

Parties:

Tyrell Edwards (Applicant)
Rex (Respondent)

Representation:

Counsel:
G James KC; E James (Applicant)
CM Everson SC (Respondent)

Solicitors:
Watson Law (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2022/274859

EX TEMPORE JUDGMENT

1. Listed before me today is an application for bail by Tyrell Edwards who is facing five charges of driving in a manner dangerous causing death. Those charges arise out of the tragic deaths of five teenagers on 6 September 2022. The victims were passengers in a vehicle driven by Mr Edwards. Given the grief and suffering that arose out of the events on that day, it is not surprising that the proceedings against Mr Edwards have been and are likely to generate significant public and media interest.

2. In anticipation of that interest, on 27 September 2022 the Registrar, at my direction, sent an email to the legal representatives of the parties advising them that if they proposed to tender any material on the application, they should advise the Court whether they objected to representatives of the media having access to it. That email appears to have prompted the applicant to apply this morning for an order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the “Act”) prohibiting the publication of four categories of information. The first category is evidence that may “tend … to reveal the identity” of any deponents of affidavits that the applicant intends to read on this application other than his parents and his solicitor. The second category is any information “tending to reveal the address details of any of the deponents” of those affidavits. The third category is evidence “tending to reveal the address details or employment details” of the applicant. The fourth category is the contents of a Psychologist Report prepared by Kerry Watson dated 23 September 2022 concerning the application and “any information tending to reveal any evidence contained” in that Report.

3. Given the matters that I will outline shortly, it is unnecessary to outline all the difficulties with the form of these orders. It suffices to note that a non-publication order drafted in terms that prevent the publication of “any information tending to reveal any evidence contained in the Psychologist Report prepared by Kerry Watson dated 23 September 2022” would be almost impossible to comply with unless persons subject to the order possessed a copy of the report, something the orders are meant to preclude.

4. No evidence was read in support of the application for the making of the orders. Instead, from the Bar table, the Court was advised that the orders were “necessary” (s 8(1) of the Act) because of, in the case of categories (i), (ii) and (iii), the potential for the harassment of, or at least the causing of distress to, the applicant, his family and the deponents of the affidavits, either at the instigation of, or at least because of, media publicity especially given that some of the deponents may be character witnesses. In the case of the Psychologist’s Report, it was submitted that publication of the contents of that Report would be a breach of the applicant’s privacy, and inferentially, likely to cause significant distress to the applicant and exacerbate his poor mental health. Each of these contentions appear to locate the basis for the making of the non‑publication order in s 8(1)(c), namely, that it is said to be “necessary” to make the orders sought to “protect the safety of any person” and is otherwise necessary to prevent prejudice to the proper administration of justice (s 8(1(a)).

5. The starting point for considering any such application is s 6 of the Act which provides that “[i]n deciding whether to make a suppression order or non‑publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.” That open justice is the primary objective of the Act is reflected in the inclusion of the word “necessary” in s 8(1). The word “‘necessary’ is a strong word; it is stronger than ‘appropriate’ or ‘desirable’” (Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ; Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27]).

6. Section 6 reflects a fundamental norm applicable to proceedings in this Court. It is a norm that every legal practitioner, including and especially those appearing in this Court’s bail lists, must keep at the forefront of their consideration. Every legal practitioner must start with the assumption that any word uttered or document tendered in open Court during a bail application will be freely able to be reported upon.

7. In these circumstances, an application for a non-publication order under the Act, which is based on assertions from the Bar table about the possible effect of publicity, will not satisfy the statutory test. It is one thing for courts to ascertain that matters such as bail applications are likely to have media and public interest. It is another to assume that the courts will monitor all media and somehow gauge a malevolent intent, or at least effect, on some parts of the media or the members of the public. In a case such as this, I would not attribute to the relevant sections of the media or the public any intention to cause distress or worse to the applicant’s family and associates without substantial proof.

8. At a broader level, this application confuses two distinct concepts. Section 6 of the Act reflects the duty of the Court to pursue “open justice”, a duty that only admits of limited exceptions. However, that duty is distinct from any supposed “obligation” on the part of courts to widely distribute, including by electronic means, its reasons, much less transcript, affidavits or exhibits as some form of publishing exercise as though the Court were a content provider (see Matthews v R (No 2) [2013] NSWCCA 194). If the internet shuts down, courts do not have to start sending their decisions by mail to the entire public. While the distribution of reasons and the facilitation of access to the material provided to the Court can enhance “open justice”, it is not a process governed by the Act and it is subject to resources and other constraints including legitimate privacy concerns.

9. This distinction is reflected in the communication made to the parties that I referred to at the outset of these reasons. The communication was not directed to the possible making of any orders under the Act but to whether the Court would grant media access to all or some of the material the parties proposed to “tender” and refer to. They are separate processes. The distinction has particular significance in the context of bail applications for two related reasons. The first is that, of necessity, bail applications sometimes involve conjecture and, to an extent, speculation about all manner of topics affecting an accused person who is likely at some point to face trial, such as the strength of the Crown case, the extent of the applicant’s criminal associations or the potential that they might flee the jurisdiction or interfere with witnesses. The second is that “bail authorit[ies]”, which include courts, are not bound by the rules of evidence (Bail Act 2013, s 31) and hence potentially prejudicial or embarrassing material which would otherwise be inadmissible can and is provided to courts that determine bail. Against that is the fact that there is no prospect of a trial in the immediate future. It is one thing to make orders that would inhibit the media from freely observing, understanding and reporting on the conduct and outcome of bail applications. It is another to freely distribute any material provided to the Court, including material that might be otherwise inadmissible, in relation to applicants who are to face trial or third parties.

10. Hence, in this case, I envisage granting access to the affidavits that are to be read but having the addresses of the deponents redacted out of privacy concerns. This would replicate the process if the deponents were called to give oral evidence in that I would generally require that they identify themselves but not insist on them providing their address unless that became a live issue. Similarly, I would rarely, if ever, grant access to the media to a psychological report (or other medical report) produced on a bail application, especially one concerning a person as young as the applicant. However, it may be necessary to refer to aspects of that Report in the reasons for either granting or refusing bail. If the orders sought by the applicant were made then they would strike at the heart of open justice in that the publication of the full reasons for the Court’s decision would or might be affected.

11. I referred earlier to resource constraints acting upon the Court in this context. In the ordinary course, this Court lists between six and ten bail applications a day, five days a week. While reasons for bail decisions in these cases are often delivered at the time the decision is made, they are rarely published on Caselaw. In most cases, the reasons will not be in a form suitable for publication on the same day as the decision given the burdens on the Court reporting system and the fact that the judge involved will be continuing to hear the balance of the day’s applications for bail.

12. Further, the Court does not generally undertake media sampling to ascertain in advance what applications may generate applications for access to materials. Applications for access to materials produced on bail applications are generally referred to the judge who heard the matter and they will often still be in Court hearing the remainder of the bail applications or something else. If the application is granted but, either an order under the Act or privacy concerns warrant the redaction of some content, then the parties may be ordered to make those redactions and provide the material. The Court is not generally in a position to redact material. Unlike other courts, this Court does not operate electronic files for the benefit of public viewing. In this case, if applications for access are made and redactions are required, the parties will be ordered to undertake that process.

13. It follows from what I have stated that I am not satisfied that it is “necessary” to make any of the non-publication orders sought. In relation to the affidavits of all deponents, if media access is sought to that material then, subject to some particular matter being identified, it will be granted save that the addresses of all deponents will be redacted. The same will apply in relation to the address of the applicant’s proposed employment. Subject to what may emerge during the hearing of the application, I do not envisage granting any request for access to the Psychologist’s Report concerning the applicant or the material concerning the applicant’s parents’ financial affairs such as their mortgage balance.

14. The application for a non-publication order is dismissed.

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Decision last updated: 04 October 2022