Nationwide News Pty Ltd v JS and SD

[2022] NSWSC 774

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Nationwide News Pty Ltd v JS and SD [2022] NSWSC 774

Hearing dates:

6 June 2022

Date of orders:

14 June 2022

Decision date:

14 June 2022

Jurisdiction:

Common Law

Before:

Basten AJ

Decision:

(1)   Allow the appeal from the suppression and non-publication orders made in the Local Court at Hornsby on 17 December 2021.

(2)   Set aside those orders and in place thereof:

(a) note that, pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of the victim of the alleged assaults, and of any other child who may appear as a witness or be mentioned in the Local Court proceedings, including any information which identifies the child or children or is likely to lead to that identification, is prohibited, and that publication includes publishing or broadcasting in any medium, and dissemination by electronic means such as the internet and by way of social media;

and make the following orders:

(b) pursuant to s 7(a) and on the ground in s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), the statutory non-publication requirements noted above, apply to the proceeding in this Court;

(c) pursuant to s 7(a) and on the ground in s 8(1)(c) of the Act, there be no publication or disclosure of the names of, or any information, picture or other material that identifies or is likely to lead to the identification of:

(i)   either of the first and second defendants as the persons charged and the subject of the AVO proceedings, other than to note that they are the former foster carers of William Tyrrell;

(ii)    the place and locality of residence and places of work of the first and second defendants; and

(iii)   the school and locality of the school attended by the child or children the subject of the protection noted in par (a) above.

(3)   So far as necessary, revoke the interim orders made in this Court on 6 June 2022.

(4) Pursuant to s 7(a) and on the ground in s 8(1)(a) of the Act, order that there be no publication or disclosure of the following:

(a)   the social media posts by individuals contained in the material annexed to the affidavit of Marlia Saunders dated 17 February 2022, and

(b)   the statement of facts annexed to affidavit of Lindsay Stankovic dated 28 April 2022, without prejudice to any disclosure permitted in the proceedings to which the annexure relates.

(5)   These orders are to apply both within New South Wales and in all States and Territories in Australia.

(6)   The orders are to apply for a period of 3 years or until the proceedings in the Local Court have been determined, whichever is the later, but may be varied or revoked by this Court or the Local Court prior to their termination.

(7)   Give leave to the parties to seek orders as to costs or an order under the Suitors’ Fund Act 1951 (NSW), such application to be made within 14 days of delivery of this judgment.

Catchwords:

APPEAL – nature of appeal – appeal from Local Court non-publication orders – de novo hearing – Court Suppression and Non-publication Orders Act 2010 (NSW), s 14

MEDIA AND COMMUNICATIONS – non-publication orders – when “necessary” – need to identify relevant ground – scope of information “otherwise concerning” a party – suppression of affidavit evidence indicating expected response to publication – Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8

MEDIA AND COMMUNICATIONS – non-publication orders – purpose of order – protecting safety of person – protection of other public interest – need to identify public interest

PRACTICE AND PROCEDURE – statutory protection of child’s identity – court orders to similar effect inappropriate and unnecessary - Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Coroners Act 2009 (NSW), s 74

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6, 7, 8, 11, 12, 14, 15

Cases Cited:

Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125

The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) (2020) 275 FCR 377; [2020] FCAFC 44

Welker v Rinehart (No 5) [2012] NSWSC 45

Texts Cited:

P Taylor SC et al, Ritchie’s Uniform Civil Procedure NSW, Vol 2, p 52,122, [60,010.5]

Category:

Principal judgment

Parties:

Nationwide News Pty Ltd (First Plaintiff)
Nine Network Australia Pty Ltd (Second Plaintiff)
Australian Broadcasting Commission (Third Plaintiff)
Network Ten Pty Ltd (Fourth Plaintiff)
JS (First Defendant)
SD (Second Defendant)
NSW Police (Third Defendant)
Secretary, Department of Communities and Justice (Fourth Defendant)

Representation:

Counsel:
Mr D R Sibtain (Plaintiffs)
Mr J Stratton SC (First/Second Defendants)
Mr J Harris (Fourth Defendant)

Solicitors:
Thomson Geer Lawyers (Plaintiffs)
MacDougall and Hydes Lawyers (First Defendant)
Marsdens Law Group (Second Defendant)
Office of General Counsel, NSW Police (Third Defendant)
Crown Solicitors Office (Fourth Defendant)

File Number(s):

2022/00013748

Publication restriction:

See Judgment at [58].

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

17 December 2021

Before:

Magistrate Denes

File Number(s):

2021/00322167
2021/00326778

Judgment

1. BASTEN AJ: The plaintiffs, which are four major media networks, Nationwide News, Nine Network, the ABC and Network Ten, jointly seek a variation of orders made by a magistrate in the Local Court at Hornsby under the Courts Suppression and Non-publication Orders Act 2010 (NSW) (“Suppression Orders Act”). The orders, made on 17 December 2021, restrict publication of information concerning charges of assault and an application for an apprehended violence order (AVO) brought by police against the former foster parents of the boy William Tyrrell who disappeared on the Central Coast in 2014. The charges do not relate to William Tyrrell, who is presumed to have died.

2. It will be necessary to set out the terms of the orders made by the magistrate. However, before taking that step, it is convenient to identify some preceding procedural background.

Background

3. In mid-November 2021, police sought an AVO on behalf of a child and laid assault charges identifying the child as the victim. The defendants in each matter were the former foster parents of William Tyrrell. On 16 November 2021 a magistrate made suppression orders on an interim basis. Those orders required non-publication (and in one case, non-disclosure) of the names of the defendants and the nature of the allegations. On 23 November 2021 the matters came before the Local Court, at which stage the Court made the following order:

“Non-publication orders relating to the names of the defendant both [SD] and JS, and any details or information which identify the complainant/PINOP [person in need of protection], it depends, and that is in both matters.”

The matter was adjourned to 7 December 2021, at which time the further hearing was adjourned to 17 December.

4. Separate proceedings were brought in the Children’s Court in relation to the child, the victim of the alleged assaults. Non-publication orders were made by a magistrate in the Children’s Court on 17 November 2021. The terms of those orders differed from those made in the Local Court, and, not having been the subject of submissions in this Court, need not be set out.

5. There is a continuing inquiry being conducted by the Deputy State Coroner in relation to the disappearance and presumed death of William Tyrrell. On 19 December 2018, a non-publication order was made pursuant to s 74 of the Coroners Act 2009 (NSW), together with an order under s 7 of the Suppression Orders Act. Again, the precise terms of the orders differed from those made in the Local Court but again, no party having relied upon those terms, they need not be set out.

6. The limited relevance of the orders made in the Coroner’s Court and in the Children’s Court was that the magistrate at Hornsby expressed a concern that there should not be inconsistency between the respective orders. No party suggested that the orders appropriate in these proceedings should be affected by the orders made in other proceedings.

7. On 24 November 2021, the female defendant (SD) filed a notice of motion seeking orders in the following terms:

“1.   That there be no publication of:

(a)   information tending to reveal the identity of or otherwise concerning the applicant and the complainant in proceedings before the court, or

(b)   information that comprises evidence, or information about evidence, given in proceedings before the court.

2.   Until a determination is handed down in the inquest into the disappearance of William Tyrrell.”

8. The following day, 25 November, the male defendant (JS) filed a notice of motion which sought orders in more extensive terms, which constituted the basis of the orders made by the magistrate some three weeks later. However, in the meantime there had been discussions between the parties, in the course of which the scope of the orders sought was significantly narrowed. By 16 December 2021, the parties were in agreement as to the appropriate suppression orders, although a response from the police prosecutor was not sent until after midnight on 16 December 2021. Emails containing the terms of the draft orders, as agreed between the parties, were forwarded to the Local Court at Hornsby.

9. The proceeding before the Local Court on Friday 17 December 2021 commenced shortly after 9am. By that stage several email exchanges had been sent to the registrar, together with electronic copies of supporting affidavits and voluminous annexures and exhibited materials. The magistrate indicated that there were administrative difficulties in copying all the papers which had been sent through to the court but acknowledged that, “at the end of the day you all seem to have come up with some agreement, and I don’t know what the agreement is”. ^[1] When counsel for the media organisations sought to hand-up a copy of the agreed terms, the magistrate stated: ^[2]

“Yes, I did see those and I just put them to one side because I was annoyed.”

1. LC Tcpt, 17/12/21, p 2(38).

2. LC Tcpt, p 3(35).

10. Counsel for each of the parties then addressed on a number of issues, with the media organisations drawing attention to the difficulties with the orders which had originally been proposed by JS but which were no longer in dispute.

11. The magistrate noted that there had been some misunderstanding as to the timetable and the nature of the proceedings that were before her, stating: [3]

“I know you say that the negotiations were done with the aim of lessening my workload. I don’t know when you thought – and, again, I will be completely frank, if submissions were supposed to have been handed in a week or two ago, which they were, and most people complied and they did, which is on the basis that I worked on it, I was expecting to hear some oral submissions today but effectively I would just be amending my reasons.”

3. LC Tcpt, p 7(36).

12. The magistrate then noted that she had dealt with various matters in her reasons which she proposed to deliver, noting that she was amending some of the orders having heard from the parties. Further submissions were then made, following which a judgment was delivered and orders were made. These orders are the subject of the present appeal:

“1. Pursuant to section 7(a) of the Court Suppression and Non Publication Orders Act 2010 (NSW), and relying on the grounds outlined in subsections 8(1)(a), (c) and (e) of the Act, there must be no publication or disclosure of any information tending to reveal the identity of any party to, or witness in, proceedings before the court; or any person who is related to or otherwise associated with any party to or witness in the proceedings.

2. Pursuant to s 7(a) of the Act and relying on the grounds set out in s 8(a), (c) and (e), there must be no publication or disclosure of the following:

a)   The names of the foster carers and the complainant;

…

d)   The names of or information likely to identify another child or young person in the care of or formerly in the care of JS and SD.

3. Pursuant to s 7(a) of the Act and relying on the grounds set out in s 8(1)(c) and (e) there must be no disclosure of any information which tends to reveal or identify:

a)   The locality of the residence of SD or JS or any member of their family;

b)   The locality of the school of the child;

c)   The address where SD or JS, or any member of their family, resides or works; and

d)   The identity of any witnesses in the proceedings or any information that may identify where such witness lives or works.

4. Pursuant to s 7(b) of the Act, and relying on the grounds outlined in section 8(1)(a), (c) and (e) there must be no publication or disclosure of information that comprises evidence, or information about evidence given in the proceedings, and this extends to the factual allegations contained in the statement of fact.

5.   The orders contained in (1) to (4) are to apply to all media, including but not limited to print, radio, television, internet and social media and applies in New South Wales and all States and Territories in Australia.

6.   The Orders do not prevent the disclosure of any information to or in

a)   A Court or Tribunal

b)   The NSW Police

7.   The Orders are to apply until the proceedings are fully determined by this Court and may include any appeal to another jurisdiction; or until there is a determination made in the Coronial Inquest into the disappearance of William [Tyrrell], whichever is the latter.”

Statutory scheme

13. Before identifying the issues raised on this appeal, it is convenient to set out the key provisions of the Suppression Orders Act. The underpinning principle is set out in s 6, as follows:

6 Safeguarding public interest in open justice

In 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.

14. The principal power conferred on NSW courts is found in s 7:

7 Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of—

(a)    information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b)    information that comprises evidence, or information about evidence, given in proceedings before the court.

15. Section 8 specifies the grounds for making a suppression order. Relevantly for present purposes it states:

8 Grounds for making an order

(1)   A court may make a suppression order or non-publication order on one or more of the following grounds—

(a)   the order is necessary to prevent prejudice to the proper administration of justice,

…

(c)   the order is necessary to protect the safety of any person,

…

(e)   it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2)   A suppression order or non-publication order must specify the ground or grounds on which the order is made.

16. There is a degree of complexity in relation to the operation of these provisions. First, it may be noted that in s 7 the word “or” occurs ten times within a short provision. Secondly, some of the terms used are defined terms. Thus, there is a distinction between a “non-publication order” and a “suppression order”. There is also a definition of the verb “publish”, which must give a meaning to the noun “publication”. The relevant definitions are as follows:

3 Definitions

In this Act—

…

information includes any document.

…

non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

…

publish means disseminate or provide access to the public or a section of the public by any means, including by—

(a)   publication in a book, newspaper, magazine or other written publication, or

(b)   broadcast by radio or television, or

(c)   public exhibition, or

(d)   broadcast or publication by means of the Internet.

suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise).

17. The definition of “suppression order” indicates that such an order is a prohibition or restriction on “the disclosure of information”, not on access to it. [4] There are two differences of significance between a suppression order and a non-publication order. First, suppression orders may have a broader effect, because they restrict any form of disclosure, not necessarily by publishing. Secondly, suppression orders may involve publication and therefore include all non-publication orders. Importantly, both definitions have two limbs, namely prohibition or restriction. That allows orders to be crafted to meet the exigencies of the particular case.

Issues on appeal

4. Compare P Taylor SC et al, Ritchie’s Uniform Civil Procedure NSW, Vol 2, p 52,122 [60,010.5].

Jurisdiction of Court and evidence

18. On 14 January 2022 the plaintiffs commenced proceedings in this Court by way of a summons seeking leave to appeal. The orders in the Local Court having been made pursuant to the Suppression Orders Act, the appeal was commenced under s 14 of that Act. As each of the plaintiffs was a “news media organisation”, each had an entitlement to seek leave to appeal pursuant to s 14(3)(d).

19. The amended summons identified 15 grounds of appeal. It is not necessary to set them out in full, especially as some had more substance than others. Rather, because there are two primary reasons why the orders need to be reformulated, it is sufficient for this Court to undertake that task afresh, it being accepted that the appeal to this Court is by way of a reconsideration de novo, as explained by Bathurst CJ in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim. [5]

    5. (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [6]-[7]; see also [21]-[24].

20. It is also convenient to deal at this stage with an outstanding issue as to the evidence, not determined at the hearing. The plaintiffs read an affidavit of their solicitor, Marlia Saunders, dated 17 February 2022, annexed to which was a large volume of material, most of which, as the Court anticipated, was not referred to during the hearing. It was, however, either material providing a procedural history of the matter or material that was before the Local Court. Because the underlying purpose of the proposed orders was the protection of the first and second defendants from unwanted media attention, an upsurge in abusive posts on social media and the possibility of threats to their physical safety, the large volume of documentary material comprised news stories in established media publications, commentary on social media and video clips from television reports, all of which was said to support their concerns. In fact, it was helpful to have access to the material to appreciate the extent of those concerns: they were not frivolous or fanciful.

21. I propose, however, to make non-publication orders with respect to some of that material. First, there are social media posts which are not recent and appear to be entirely gratuitous and obscene abuse. It is not appropriate that, because they are revealed in support of a suppression order, they are able to be republished because they are evidence in this proceeding.

22. Secondly, the first and second defendants read an affidavit of their solicitor, Lindsay Stankovic, of 28 April 2022 that annexes a statement of facts in a another proceeding, being a prosecution for giving false evidence to the NSW Crime Commission. That material may all become publicly available in due course, but it should not do so because it is relied on as a summary of the allegations in them present case to support an order that those allegations should not be published. The evidence goes beyond the current allegations. If they are tendered or otherwise revealed in other proceedings, so be it. But the information supplied in this proceeding will be suppressed for a brief period.

18. Given those restraints, and noting that the Court has had reference to large swathes of the annexures to Ms Saunders’ affidavit, all the materials annexed to the affidavits are admitted.

Orders not sought

24. The primary reason for intervening is that identified by the plaintiffs in ground 12, namely that the magistrate erred in failing to consider the adequacy of orders that had been agreed to by all parties. Put slightly differently, at least without explanatory reasons, it is difficult to be satisfied that particular orders were necessary (under s 8 of the Suppression Orders Act) in circumstances where the parties, including the prosecutor, the defendants (in the criminal proceedings), the Secretary, Department of Communities and Justice (representing the interests of the child) and the media organisations considered them not to be necessary. There were no reasons supporting necessity in respect of each of the orders not in terms sought.

Overlap with statutory prohibition

25. Secondly, although counsel for the media organisations supported the agreed orders, he noted, correctly, that it was inappropriate to make non-publication orders with respect to the name of the victim or complainant in circumstances were there was statutory protection for a complainant under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). As Spigelman CJ explained in Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK,[6] a court should not normally make orders under the Suppression Orders Act to work in tandem with a statutory non-publication order in relation to the names of children, because to do so could invoke two separate penalties for breach. Further, such an order invites confusion as it will almost certainly not mirror the statutory terms with precision.

    6. [2006] NSWCCA 386 at [29].

26. That is not to say that the terms of the statutory prohibition may not be recognised by a court in making an order under the Suppression Orders Act. As was accepted by the parties in the course of the hearing, that can appropriately be dealt with by way of a recital at the commencement of the orders. That should be done in the present case.

Identifying specific grounds

27. There are other problems with the orders made by the magistrate which should be identified. First, s 8(1) of the Suppression Orders Act provides that the court may make a suppression order “on one or more of the following grounds” which are identified in pars (a)-(e). Further, the order must specify the ground or grounds on which the order is made: s 8(2).

28. Except for order 3, which did not rely upon prejudice to the proper administration of justice, each of the orders was justified on the basis of grounds set out in s 8(1)(a), (c) and (e). All three grounds may have been available; however, where all three are relied upon for one particular order, it will usually be necessary to identify with more precision in the reasons for judgment, the basis on which each ground is relied upon.

29. Further, par (e) identifies the order as being “otherwise necessary in the public interest”: given the importance of open justice, it is important to identify the countervailing public interest which outweighs the public interest in open justice. Given the phrase “otherwise necessary”, it must, presumably, be something other than protection of the proper administration of justice (par (a)) and protection of the safety of any person (par (c)). The reliance on all three suggests incoherence.

30. The magistrate’s reasons did appear to identify two separate public interests which warranted consideration, but it was by no means clear to which particular aspect of which orders they applied. First, there was the risk of unfair and inaccurate reporting. [7] That risk was exemplified in a news headline combining the application for an AVO against William Tyrrell’s foster parents and the reopening of the search of the area in which the boy was last seen, near his foster grandmother’s premises in Kendall. Secondly, the magistrate identified a “very real risk that the Coroner’s and the Children’s Court orders might inadvertently be breached by having inconsistent orders in this Court”. [8] Nevertheless, the latter interest was immediately identified as requiring orders to prevent prejudice to the proper administration of justice, engaging par (a) rather than par (e). When the magistrate then referred to the balancing exercise under par (e), she noted that there was no jury which would hear the new charges or the AVO application, that the Local Court would not be prejudiced by adverse publicity, but that there may be an impact “on the safety of the applicants”, engaging par (c). [9] In these circumstances, it is by no means clear what public interest was at stake for the purposes of par (e).

    7. LC Tcpt, 17/12/21, p 15(25).

    8. Tcpt, 17/12/21, p 15(43).

    9. LC Tcpt, 17/12/21, p 15(48).

Form of orders

31. Next, it is necessary to note the form of the orders. None of the orders sought to restrict publication or disclosure: each was in the form of an unqualified prohibition. Their terms derive from s 7 and mirror its language, including all internal alternatives. Thus, order 1, mirroring the terms of s 7(a), referred to identification of “any persons who is related to or otherwise associated with any party or a witness in the proceedings.” Sometimes family relationship will be involved, not because the relative is in any way involved in the proceedings, nor because their safety is at risk, but because to reveal the person’s name might identify one of the parties. That does not appear to have been an issue in these proceedings. Accordingly, the second limb of order 1 cannot be supported.

32. Order 4 purported to give effect to the power conferred by s 7(b). The language of s 7(b) is very broad and invites precision in the formulation of an appropriate order. It is also awkwardly expressed. One might expect it to refer to evidence which comprises information of a particular kind, rather than “information that comprises evidence”. Information is defined to include “any document” and a document may be adduced in evidence. However, this does not entirely avoid the infelicity of expression. The second limb refers to information “about evidence”: what this could entail must depend entirely upon the circumstances. No party presented any basis for supporting an order as wide and imprecise as the terms of order 4.

33. The plaintiffs resisted order 4 on the basis that factual allegations contained in a statement prepared by police, which would almost certainly not be adduced in evidence, could not form the subject matter of a prohibition order. That was said to be because, read literally, s 7(b) says nothing about material which is not evidence or information about evidence “given” in a proceeding before the court. Where no evidence has been given, there is no basis for a suppression order.

34. The first and second defendants resisted this reading of the section on the basis that it prevented an order being made prior to the giving of evidence in circumstances where it was foreseeable that an order would be sought once the evidence was adduced. In this Court, the second defendant, SD, read an affidavit of her solicitor annexing a copy of the court attendance notice and a statement of facts in relation to a further offence of knowingly giving false or misleading evidence to the New South Wales Crime Commission. That evidence involved answers to questions denying the assault which was the subject of the charge laid against her in the Local Court. The court attendance notice in that matter is dated 24 May 2022. The document annexed to the affidavit does not appear to have been filed in any court and it is not clear if it, its contents or part of its contents will be adduced in evidence. It is certainly not clear whether it will be adduced in evidence in the assault or the AVO proceedings. No argument was presented in this Court as to why so much of the material as would constitute admissible evidence in a criminal proceeding should not be publicly disclosed. In any event, that material was not said to be before the magistrate and cannot have been the material taken into account by her in making order 4.

35. Nor is it necessary to resolve the scope of the power conferred by s 7(b). Section 7(a) permits an order prohibiting disclosure of “information … otherwise concerning any party to or witness in proceedings”. The breadth of that language appears to foreclose any objection based on lack of power.

Proposed orders

36. Rather than deal in detail with the other orders made by the magistrate, it is convenient to turn to the orders to which the parties consented. The first order was in substance that there be “no publication or disclosure of any information tending to reveal the identity of the defendant or complainant in proceedings before the Court”. That was qualified by the statement that the order did not prevent “publication or disclosure of the fact that the defendant was a foster parent of William Tyrrell”.

37. As noted, the identification of the complainant is otherwise the subject of the statutory prohibition. Otherwise, the order was sought by JS in the proceeding relating to him. Therefore, the order referred to the “defendant” in the singular: the orders made by the magistrate referred to both SD and JS. There is some logic in requiring that a global order be made in respect to the defendants (plural) to be used in each of the two criminal proceedings and the AVO proceeding. That can be made clear in formulating the final orders.

38. Order 2(a) and (b) repeated that there must be no disclosure of the names of the foster carers or of the complainant. These orders were entirely otiose. The remainder of order 2, defined in very specific and overlapping paragraphs, sought to remove a number of factors which might tend to identify the victim. The level of particularity went far to doing precisely what the order sought to avoid. No such order is appropriate. Order 2 should not be made.

39. Proposed order 3 was somewhat awkwardly drafted but prohibited publication or disclosure of information tending to reveal or identify the “locality” in which the defendants resided or worked and the “locality” of the school the child attended. So far as protection of the child is concerned, there is merit in requiring, and in part supplementing the statutory prohibition, non-disclosure of any material which would identify the name of the school or its locality. An order in those terms should be made.

40. There is also merit in the common agreement that the address and locality of both the residence and workplaces of the defendants should be prohibited. Proposed order 3 relied upon the power conferred by s 7(a) which, as noted above, includes as one of its alternatives, “information… otherwise concerning any party” to the proceedings. The breadth of that terminology is sufficiently wide to encompass the information in proposed order 3. Secondly, the grounds identified were said to be s 8(1)(c) and (e). Again, as with the orders made by the magistrate and the subject of complaint in these proceedings, no public interest has been identified which might be relevant to this aspect of the matter, other than the protection of the safety of the parties. The order, if it is to be justified, must be supported by par (c). I am satisfied that it is so supported.

41. Proposed order 4 was in the following terms:

“The prohibitions in orders (1) [and] (3) apply to all media, including but not limited to print, radio, television, internet and social media and apply throughout the Commonwealth.”

42. It may be seen that order 4 has two separate purposes. The first is to apply the orders “to all media”, which may be a reminder of the breadth of the operation of the orders, but is strictly unnecessary. More importantly, and perhaps unintentionally, it is restrictive. As noted in discussing the definition, “publish”, and hence publication, involves dissemination or provision of information “to the public or a section of the public by any means”; a “non-publication order” refers to publication but not “disclosure”. There is a risk in identifying “media” that some may think it refers to media organisations, rather than to individuals operating in a particular medium. There is also a risk that the orders are to be treated as non-publication orders rather than as suppression orders involving non-disclosure by any person. In my view the first limb of order 4 is not necessary, and is positively unhelpful. It should not be made.

43. The second part of proposed order 4 is its geographical operation, namely throughout the Commonwealth. It is necessary that the geographical operation of the order be noted in the order, if it is to extend outside New South Wales. In days of electronic media, it is commonplace to insist upon the order operating outside New South Wales and that is appropriately stated by reference to the Commonwealth. That part of the order is justified by s 11(3) of the Act.

44. Proposed order 5 states that the orders do not prevent disclosure of any information to (a) a court or tribunal, or (b) the New South Wales Police. That order is unnecessary and inaccurate. The disclosures which are not prevented by suppression orders include any disclosure which is “not by publication and is in the course of performing functions or duties or exercising powers in a public official capacity” in circumstances further identified in s 15(1) and (2). Also it is hardly helpful to describe disclosure “to” the police, from whom the information derives. If it is intended to permit disclosure within the police force, or amongst police officers, that is not what it says. Order 5 appears to be unnecessary and should not be made.

45. Proposed order 6 deals with the duration of the orders. Section 12(1) of the Suppression Orders Act requires that the court must decide the period for which the order will operate and specify that period in the order. Further, the period must be “no longer than is reasonably necessary to achieve the purpose for which [the order] is made”: s 12(2). Proposed order 6 identifies two events upon which the orders cease to operate, namely, (i) upon the coroner delivering her findings in respect of the inquest into the disappearance of William Tyrrell, and (ii) “or until further order”. The last four words are otiose and inappropriate. On the one hand, the court which made the orders may vary them at any time, as may a court hearing a review or appeal application. On the other hand, there is a real risk that a person who is required to obey the order will not be sure whether there has been any further order or not. Those words should be omitted.

46. More importantly, it is impossible to understand how the purpose of the orders is served by preventing publication until the inquest is completed. It is not the purpose of any of the orders to avoid prejudice at the inquest. The proposed duration of the orders casts doubt upon whether the suppression orders are required at all. If they are for the protection of the parties, they should either extend for the duration of the proceedings in which they are made, or for a period of years, to allow the protection to continue. The order made by the magistrate provided that the orders would continue to apply until the matters in the Local Court were determined (including by way of appeal) or until there was a determination by the coroner, whichever was the later event.

47. The need for protection of the parties and in particular the complainant, suggests that the orders should continue for a period of some years. In the absence of submissions from the parties I will make the order to continue for three years. It is likely that other events will have overtaken the present Local Court proceedings by that time, but one cannot be sure of that. If there is to be some variation of that proposed order, that can be dealt with by consent or by the filing of written submissions.

Orders

48. The underlying purpose of the proposed orders is the protection of the first and second defendants from unwanted media attention, an upsurge in abusive posts on social media and the possibility of threats to their physical safety. The documentary material supported the conclusion that they have well-founded concerns as to unwanted media attention and posts on social media. Inevitably, some of the latter will be unsubstantiated and abusive. However, assuming that the first and second defendants are not identified, the risk of physical attack is unlikely to increase significantly as a result of publicity concerning the current charges.

49. As has been pointed out in this Court[10] and in the Full Court of the Federal Court,[11] media attention and risks of the kind noted above are an inevitable concomitant of public litigation in a system which maintains, as a primary objective of the administration of justice, the public interest in open justice. [12] That objective may be overridden, where that step is necessary, for example, to prevent prejudice to the proper administration of justice, being that which the primary objective seeks to preserve. That objective essentially underlies each of the exceptions: the proper administration of justice has practical limits which reflect other important public interests.

    10. Welker v Rinehart (No 5) [2012] NSWSC 45.

    11. The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) (2020) 275 FCR 377; [2020] FCAFC 44 at [8].

    12. Suppression Orders Act, s 6.

50. The first and second defendants submitted that, as defendants in criminal proceedings, they have no control over the process and therefore should not be required to suffer unnecessary threats to their safety and mental health. That is a factor which must be taken into account. It is also necessary to have regard to the destructive potential of abuse on social media which can feed on itself and inflict significant mental distress and harm on its victims. Nor, it may be assumed, are the defendants wealthy members of the community with private resources to ameliorate such risks. For these reasons, it is appropriate to maintain orders which require that their names not be disclosed and that information which may otherwise reveal their identities not be disclosed. Such a prohibition should include non-disclosure of any information, picture or other material that identifies either of them or is likely to lead to their identification, to adopt the terminology in s 15A(5) of the Children (Criminal Proceedings) Act. Such material includes information as to where they live, work or, in the case of the child, go to school. It is appropriate to express that constraint in the order.

51. The power in s 7(a) permits the prohibition of disclosure of information “tending to reveal the identity” of any party or witness in proceedings, “or otherwise concerning” such a person. That power extends not merely to information given in evidence, but to information which may otherwise have such an effect.

52. There was a further submission in relation to the need for an order with respect to identity of the victim, sometimes referred to as the complainant. Section 15A of the Children (Criminal Proceedings) Act was, it was submitted, limited to the publication or broadcasting of the name or material identifying the child. However, the operation of s 15A is not so limited. While subs (2) states that the section applies “only to the publication or broadcast of a person’s name to the public, or a section of the public” it refers to publication “by the internet” or “by any other means of dissemination”. Further, subs (3) refers to the publication of information on a website that provides the “opportunity for, or facilitates or enables, dissemination of information to the public or a section of the public”.

53. While it is true that forms of disclosure between individuals otherwise than electronically will not constitute publication or broadcasting within the terms of s 15A, it is not clear that such protection is necessary for the protection of the child. Principles relating to the protection of the identity of children should be governed primarily by the specific legislation relating to children in criminal proceedings, unless there are specific circumstances which warrant further protections. I am not satisfied that there are any specific circumstances relating to the victim of the alleged assaults which would warrant additional protection.

48. On the other hand, s 15A operates only in criminal proceedings; it does not extend to disclosures in other proceedings, including the present proceeding. That requires an order with respect to the present proceeding.

49. It remains to address the submission that there should be a complete prohibition on disclosure of the evidence and statements relating to the allegations which form the basis of the criminal charges. I accept that such an order is possible within the terms of s 7(a) because that is information, not relevant to the identity of, but “otherwise concerning” the defendants and the victim. However, while evidence of violence against children is likely to lead to an instinctive revulsion against the party who allegedly took such action, it is neither necessary nor desirable to prohibit publication of such information. Such publication routinely occurs on a daily basis.

50. No doubt there may be exceptional cases, either because of the nature of the conduct or the identity of the parties, but I am not persuaded that this is such a case.

51. No party sought costs, but the first and second defendants resisted any order against them. This proceeding under the Suppression Orders Act is ancillary to summary criminal proceedings and there is no clear practice with respect to the awarding of costs in such a proceeding, although costs are not awarded in proceedings ancillary to indictable criminal proceedings. [13] No costs were awarded in the Local Court. The Court assumes that no application was intended and does not suggest that an application would necessarily succeed. Any application for costs, or for or an order under the Suitors’ Fund Act 1951 (NSW), should be made by notice of motion to vary these orders, filed within 14 days.

    13. Fairfax Digital v Ibrahim (see fn 5) at [104].

52. Accordingly, the Court makes the following orders:

1. Allow the appeal from the suppression and non-publication orders made in the Local Court at Hornsby on 17 December 2021.

2. Set aside those orders and in place thereof:

1. note that, pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of the victim of the alleged assaults, and of any other child who may appear as a witness or be mentioned in the Local Court proceedings, including any information which identifies the child or children or is likely to lead to that identification, is prohibited and that publication includes publishing or broadcasting in any medium, and dissemination by electronic mmeans such as the internet and by way of social media;

and make the following orders:

2. pursuant to s 7(a) and on the ground in s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), the statutory non-publication requirements noted at (a) above apply to the proceeding in this Court;

3. pursuant to s 7(a) and on the ground in s 8(1)(c) of the Act, there be no publication or disclosure of the names of, or any information, picture or other material that identifies or is likely to lead to the identification of:

1. either of the first and second defendants as the persons charged and the subject of the AVO proceedings, other than to note that they are the former foster carers of William Tyrrell;

2. the place and locality of residence and places of work of the first and second defendants; and

3. the school and locality of the school attended by the child or children the subject of the protection noted in par (a) above.

3. So far as necessary, revoke the interim orders made in this Court on 6 June 2022.

4. Pursuant to s 7(a) and on the ground in s 8(1)(a) of the Act, order that there be no publication or disclosure of:

1. the social media posts by individuals contained in the material annexed to the affidavit of Marlia Saunders dated 17 February 2022, and

2. the statement of facts annexed to affidavit of Lindsay Stankovic dated 28 April 2022, without prejudice to any disclosure permitted in the proceedings to which the annexure relates.

5. These orders are to apply both within New South Wales and in all States and Territories in Australia.

6. The orders are to apply for a period of 3 years or until the proceedings in the Local Court have been determined, whichever is the later, but may be varied or revoked by this Court or the Local Court prior to their termination.

7. Give leave to the parties to seek orders as to costs or an order under the Suitors’ Fund Act 1951 (NSW), such application to be made within 14 days of delivery of this judgment.

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Endnotes

Amendments

14 June 2022 - coversheet - corrected file number

paragraph [58] - corrected paragraph numbering

Decision last updated: 14 June 2022