EFG v General Counsel, Department of Communities and Justice

[2024] NSWSC 1373

Supreme Court

New South Wales

Medium Neutral Citation:

EFG v General Counsel, Department of Communities and Justice [2024] NSWSC 1373

Hearing dates:

25 October 2024

Date of orders:

25 October 2024

Decision date:

25 October 2024

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Upon the undertaking of the plaintiff’s solicitor to file the Summons, Notice of Motion and affidavit in support together with payment of the usual fee forthwith after the completion of today’s hearing grant the plaintiff leave to proceed on the unfiled documents today.

(2) The Notice of Motion is returnable instanter and grant leave to proceed on it ex parte.

(3) Under s 7 of the Courts Suppression and Non-publication Orders Act 2010 (NSW) on the ground specified in s 8(1)(d) of the said Act order that there be no publication of the name of the plaintiff or of any detail that might lead to his identification.

(4) Grant leave to file the Summons and the Notice of Motion between "EFG" as plaintiff and the General Counsel, Department of Communities and Justice and State of New South Wales as defendants.

(5) Order that the proceedings instituted by the accompanying summons be conducted on the part of the plaintiff under the pseudonym "EFG", such pseudonym to be used to the exclusion of his real name on all documents filed and all listings.

(6) Grant leave to the defendants to apply at any time at the hearing, or before it on reasonable notice to the plaintiff, for variation of these orders.

(7) This order applies throughout the Commonwealth of Australia for a period of 10 years from today's date.

Catchwords:

CIVIL PROCEDURE – suppression and non-publication – calculus of risk approach – costs certificate granted following an acquittal – sentencing judge’s findings as to the grant of the certificate unlikely to be known to the public – “there must be something in it” – exceptional circumstances established

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW), ss 3, 4

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8

Crimes Act 1900 (NSW), s 578A

Cases Cited:

AB (a pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46

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

John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465

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

Category:

Procedural rulings

Parties:

EFG (Plaintiff)
General Counsel, Department of Communities and Justice (First Defendant)
State of New South Wales (Second Defendant)

Representation:

Counsel:
T Molomby SC (Plaintiff)

Solicitors:
Giles George (Plaintiff)

File Number(s):

2024/00396267

ex tempore JUDGMENT (revised)

1. I am considering an application for a non-publication order under the Court Suppression and Non-publication Orders Act 2010 (NSW) (the “Act”) that the identity of the proposed plaintiff in proceedings yet to be commenced in this Court be protected by an order under s 7 of that Act on the grounds specified in s 8(1)(a) and (d).

2. The case has many unusual features. The first unusual feature perhaps is the nature of the proceedings that are in contemplation and about to be commenced by way of summons. What is sought is an order in the nature of certiorari quashing a decision of a delegate of the Secretary of the Department of Communities and Justice assessing costs pursuant to a certificate made under section 4(2) Costs in Criminal Cases Act 1967 (NSW) (the “Costs Act”). That, of course, will be purely a legal question to be determined by the Court by judicial review of the decision made by the delegate. It would be uncommon in such a matter, I would think, for there to be grounds to make a non-publication order as to the identity of the plaintiff. The unusual features of the case, however, have been well explained to me by Mr T Molomby SC who appears for the plaintiff.

3. At the commencement of the hearing, I permitted the summons and the notice of motion seeking the non-publication order to be proceeded with, notwithstanding they had not been filed, on an ex parte basis upon the undertaking of Mr Molomby’s instructing solicitor to file the summons, notice of motion and affidavit in support forthwith after the completion of today's hearing. I also made the notice of motion returnable instanter and granted leave for it to proceed ex parte. In granting leave to proceed ex parte, I was conscious that one of the orders proposed is that the defendant is to have leave to apply for dissolution of the order after service on any ground which on advisement the defendant thought appropriate.

4. The costs certificate was given following a trial by judge and jury in the District Court where the indictment charged the plaintiff with four serious sexual offences. There were three counts of having sexual intercourse without consent and a charge of assault attempting to have sexual intercourse, knowing that the complainant was not consenting. The trial commenced in the District Court on 3 May 2022. The jury on 19 May 2022 returned a verdict of not guilty in relation to each count.

5. On 1 July 2022, the learned trial judge, his Honour Judge King SC, granted the certificate under s 4 Costs Act and in so doing necessarily made the finding required by law that if the prosecution, before the proceedings were instituted, had been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings and that there was no act or omission on the part of the plaintiff that contributed, or might have contributed, to the institution or continuation of the proceedings. His Honour's reasons for that decision have been tendered as Exhibit “A” on this application and I have considered them carefully. Suffice to say that his Honour accepted the argument advanced by Mr Molomby, who appeared at the trial as senior counsel for the defence, that there were 15 interrelated facts that established the necessary statutory condition to the grant of the certificate, including that some of the evidence of the complainant was palpably false.

6. The matter involved two university students who were residents of the same co-educational residential college who had formed a relationship. The making of the allegations by the complainant resulted in the expulsion of the plaintiff from the college. His defence, which the jury obviously accepted, was that sexual intercourse had occurred, but it was consensual, and that the young complainant and the young accused had previously formed a relationship of a sexual nature.

7. Obviously, as Mr Molomby puts it, the identity of the complainant, notwithstanding the adverse findings made by King SC DCJ, is well protected by the provisions of s 578A(2) Crimes Act 1900 (NSW) and, if I may say so with unfeigned respect, the argument that I should make a non-publication order under the Act to protect her identity I think is put forward with some ingenuity for the purpose of adding weight to the argument that the plaintiff's identity also should be protected.

8. It is true that the evidence before me, in affidavit form from Ms Bronte Callaghan, solicitor, is that because the complainant and the plaintiff resided in the same co-educational college, their relationship was known to people and that any publicity given to these proceedings in this Court, including of the plaintiff’s identity, would lead to disclosure amongst a certain part of the community of the identity of the complainant with potential for it to become commonly known. I must say I am not attracted by that argument and I am of the view that that work, to the extent necessary, can be done adequately by s 578A Crimes Act; although given the provisions of s 8(1)(d) of the Act, the Parliament obviously contemplates that there may be a need in a given circumstance for an additional Court order over and above the legal effect of s 578A to protect the identity of a complainant in a sexual case.

9. It is worth setting out the provisions of s 8(1)(d) fully:

“A court may make a suppression order or a non-publication order on one or more of the following grounds –

…

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or a witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900).” (My emphasis.)

10. One must also bear in mind the provisions of s 8(3) which are as follows:

“Despite subsection(1)(d), a court may make a suppression order or non-publication order on the ground that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.”

11. The pivotal section is s 6 which provides:

“In deciding whether to make a suppression order or a 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.”

12. It is not necessary for the purposes of this judgment for me to cite much authority in relation to the foundational nature of the open justice principle. It is sufficient for me to observe that part and parcel of the open justice principle is that courts sit in public, that litigants and witnesses attend in person and that the public are admitted to observe the proceedings. All of those considerations are of great significance to the public confidence in the workings of the legal system.

13. Before the Act was enacted, McHugh J in John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 477 said:

“…an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting the publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice.”

14. That quote from a longer passage remains apposite in the statutory context and, indeed, an order may only be made to the extent to which it is necessary as the language of s 8 of the Act makes clear. What is necessary in the statutory context is given a narrow meaning, as Bathurst CJ and McColl J observed in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [31]:

“Significantly, an order is not 'necessary' if it appears to the court 'to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some 'balancing exercise’, the order appears to have one or more of those characteristics: Hogan v Australian Crime Commission [(2010) 240 CLR 651; [2010] HCA 21] at [31].”

15. In determining whether an order is necessary the Court is required to undertake a calculus of risk approach which involves requiring it to consider the nature, imminence and degree of likelihood of harm occurring to the relevant person: AB (a pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 at [56]-[58].

16. Returning then to the language of s 8(1)(d) Act, the interest that an order may protect is the avoidance of causing undue distress or embarrassment to, inter alia, a party to criminal proceedings. That is to say unlike s 8(1)(c), it is not necessary to show there is a risk to the safety of any person. Undue distress or embarrassment is a much lesser order of harm than other matters which might be involved in other categories or grounds of necessity for making an order under s 7 of the Act.

17. I confess that I was very unattracted by the prospect of making an order in this case when I read the papers before coming on the bench, given, I say again, the foundational character of the open justice principle. However, I am persuaded by Mr Molomby that there are aspects of the case which amount to exceptional circumstances, making the order necessary for the avoidance of undue distress or embarrassment to the plaintiff.

18. Those factors are these. First, I accept that even though he has been vindicated by acquittal by a jury of his peers of these very serious charges and that right-thinking people will respect that and think no ill of him, the community is not wholly composed of right-thinking people and there are those who, being ignorant of all of the details, would think that if a person is charged with a serious offence, notwithstanding an acquittal, "there must be something in it" and that can do great harm to a young person's prospects in many different aspects of daily, including when applications are made for employment or for other purposes. A person who has been acquitted ought not always have to explain themselves. Secondly, in this internet and social media age those of ill-intent can rapidly spread ill-will by use of any number of platforms or applications which enable them to widely criticise a person who has been charged with serious criminal offences to a potentially large audience, even if they have been acquitted.

19. Thirdly, another important factor is the finding of King SC DCJ that the statutory conditions for granting a certificate under the Costs Act had been satisfied. The findings as specified in s 3 Costs Act are unlikely to be known to other persons, but what they do indicate is that when all the facts came out at the trial, it became clear that it would not have been reasonable for a prosecutor to have instituted the proceedings at all. That is to say there was no basis for a prosecution at all with the benefit of hindsight and that the plaintiff did nothing to bring the calamity of his expulsion from college and the necessity to stand trial upon his own head.

20. Fourthly, there is the anodyne nature of the application the plaintiff wishes to make. As I have said already, it is a purely legal question about whether the decision of the delegate in relation to the assessment of the costs under the certificate was vitiated by jurisdictional error. As I understand the case to be made, the error is said to be the taking into account an irrelevant consideration mandatorily excluded from the determination of the quantum of the costs payable under the certificate. It seems to me that the risk that such proceedings will reignite interest in the baseless, serious sexual charges would be the type of matter which would be likely to cause undue distress or embarrassment on the part of the plaintiff by him having to relive no doubt the opprobrium that he was subject to while the charges were pending and the anxiety and distress that he must have felt when he considered the prospect that he may have been wrongly convicted, as can occur. To my mind there is no legitimate public interest in those matters being reignited or re-agitated in the context of these proceedings for judicial review.

21. I am conscious of the parsimony with which the power to make orders under the Act ought to be exercised and I have given it the most anxious consideration; but, having done so and having had the benefit of persuasive arguments of Mr Molomby, I am satisfied that an order is necessary on the ground specified in s 8(1)(d), even having regard to the high bar of exceptional circumstances required to be cleared by s 8(3). The order trespasses but lightly on the open justice principle: the proceedings will in all other respects be conducted in open court.

22. I make the following orders:

1. Upon the undertaking of the plaintiff’s solicitor to file the Summons, Notice of Motion and affidavit in support together with payment of the usual fee forthwith after the completion of today’s hearing grant the plaintiff leave to proceed on the unfiled documents today.

2. The Notice of Motion is returnable instanter and grant leave to proceed on it ex parte.

3. Under s 7 of the Courts Suppression and Non-publication Orders Act 2010 (NSW) on the ground specified in s 8(1)(d) of the said Act order that there be no publication of the name of the plaintiff or of any detail that might lead to his identification.

4. Grant leave to file the Summons and the Notice of Motion between "EFG" as plaintiff and the General Counsel, Department of Communities and Justice and State of New South Wales as defendants.

5. Order that the proceedings instituted by the accompanying summons be conducted on the part of the plaintiff under the pseudonym "EFG", such pseudonym to be used to the exclusion of his real name on all documents filed and all listings.

6. Grant leave to the defendants to apply at any time at the hearing, or before it on reasonable notice to the plaintiff, for variation of these orders.

7. This order applies throughout the Commonwealth of Australia for a period of 10 years from today's date.

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Decision last updated: 30 October 2024