R v Andrew Michael Grace

[2012] NSWDC 5

District Court

New South Wales

Medium Neutral Citation:	R v Andrew Michael GRACE [2012] NSWDC 5
Hearing dates:	27 January 2012
Decision date:	03 February 2012
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Access to documents tendered and other relevant documents, some redacted, granted to media organisation.
Catchwords:	Interlocutory, Application by a Non-Party for Access to Material Held by the Court, Court Information, Access to Court Information, Privacy, Consideration balanced against principles of open justice, Discretionary consideration.
Legislation Cited:	Court Information Bill 2010
Cases Cited:	John Fairfax Publications Pty Limited v Ryde Local Court [2005] NSWCA 101; Scott v Scott [1913] AC 417; John Fairfax & Sons Pty Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465; John Fairfax Publications Pty Limited v District Court [2004] NSWCA 324; Russell v Russell (1976) 134 CLR 495; The Queen v Tait (1979) 46 FLR 386.
Category:	Interlocutory applications
Parties:	Commonwealth D.P.P. (Respondent), Andrew Michael Grace (Respondent), Ms Carson (in her capacity as a journalist employed by The Daily Telegraph) (Applicant).
Representation:	Mr A Martin for Mr Grace. Ms R Ogden for the Commonwealth D.P.P., Mr N Velcic for Mr Grace.
File Number(s):	2010/430693

Judgment

Introduction:

1. On 20 January 2012 Andrew Michael Grace appeared for sentence in relation to one offence of contravening section 307.4(1) of the Commonwealth Criminal Code , that is importing a border controlled drug, namely cocaine. On that occasion Ms Ogden of the Commonwealth Director of Public Prosecutions Office appeared for the Crown and Mr Levy SC appeared for Mr Grace.

1. In the course of the sentence hearing conducted that day the following documents were tendered:

(a)   an Indictment dated 29 November 2011, together with an Agreed Statement of Facts (exhibit A);

(b)   a Pre-Sentence Report dated 19 January 2012 (exhibit B);

(c)   a Bundle of Documents tendered on behalf of Mr Grace, together with an Index, (exhibit 1) containing:

(i)   a report of a psychiatrist dated 15 December 2011;

(ii)   a report from St Vincent's Hospital, Alcohol & Drug Service dated 6 January 2012;

(iii)   a report of a psychologist dated 13 January 2012;

(iv)   a reference from Meals on Wheels;

(v)   a reference from the Holdsworth Community Centre;

(vi)   a reference from a Smart Recovery facilitator;

(vii)   a reference from the Coordinator Teen/Youth Smart Recovery Australia dated 13 January 2012;

(viii)   a reference from a solicitor dated 10 January 2012;

(ix)   a reference from Mr Hammond dated 10 January 2012;

(x)   a reference from a senior business executive dated 13 January 2012;

(xi)   a reference from Mr Grace's mother dated 15 January 2012; and

(xii)   a reference from Mr De Voy dated 17 January 2012.

1. Finally, Mr Grace provided the court with a written statement dated 16 January 2012 (exhibit 2).

1. That was the evidence on the sentence hearing, viz totally documentary.

1. It is important to observe at this point, given the nature of the issue with which this judgment is concerned, that this type of evidence is commonly provided in documentary form to the court (where there is no factual contest or a requirement for any witness to be cross-examined) as a matter of administrative efficiency and convenience; viz to save court time and the time of the authors of the various documents. The evidence, however, could properly have been given orally and in open court (subject to any application for a non-publication order).

1. It is also important to remember that the purpose of Remarks on Sentence is not to exhaustively rehearse all of the evidence adduced at a sentencing hearing but to state, with such brevity or detail as the circumstances require, the essential features of that evidence. Even then it is not usual for all of the aspects of such documents to be adverted to (for example a pre-sentence report often contains a lot of relevant information not necessarily expressly adverted to in Remarks on Sentence but which nevertheless helped to inform the ultimate decision).

1. Both the Crown and Mr Levy prepared written submissions. The written submissions prepared on behalf of Mr Grace were supplemented by oral submissions for the sentence hearing.

1. At the conclusion of the sentence hearing I stood the matter over for the imposition of sentence to 27 January 2012.

1. Between the sentence hearing and the imposition of sentence, the court received a document entitled "Application by a Non-Party for Access to Material Held by the Court". The application was made by Ms Carson, in her capacity as a journalist employed by The Daily Telegraph. The application sought access to all of the documents to which I have referred in paragraphs 2, 3 and 5.

1. Upon receiving the application my Associate informed both the Crown and the legal representatives for Mr Grace of that application, together with an indication that, subject to contrary submissions being made, I was disposed to granting the application provided certain matters were redacted (namely the date of birth and address particulars of Mr Grace; the address particulars of his mother; and details of an illness from which Mr Grace's brother suffers).

1. When the matter came before me on 27 January 2012 for the imposition of sentence, Ms Ogden indicated that the Crown had no objection to the course which had been foreshadowed in the letter from my Associate to the parties. However, Mr Martin of counsel, who on that occasion appeared for Mr Grace, indicated that there would be strong objection to some of the documents being provided.

1. Accordingly, the issue of the application was dealt with later that day after I had imposed the sentence.

1. At the commencement of the hearing on the interlocutory application concerning the application for access, I was concerned that there was no proper contradictor to the position being advanced by Mr Martin. Accordingly, contact was made with Ms Carson who was in the court building and she subsequently appeared before me.

1. I specifically enquired of Ms Carson whether her employer wished to be legally represented before me on the hearing of the application. Ms Carson indicated that her employer did not require legal representation and that she proposed to argue in favour of the application herself. As Ms Carson was not the holder of a Practising Certificate (nor legally qualified), I granted her leave to appear on behalf of herself and her employer, The Daily Telegraph.

1. Mr Martin had no objection to the court providing Ms Carson with a copy of exhibit A (i.e. the Indictment and the Agreed Statement of Facts - redacted as foreshadowed).

1. Mr Martin similarly had no objection to the following documents contained in exhibit 1 being provided to Ms Carson, provided they were appropriately redacted:

(xiii)   the report from St Vincent's Hospital;

(xiv)   the report of the psychologist;

(xv)   the reference from Meals on Wheels;

(xvi)   the reference from Holdsworth Community Centre;

(xvii)   the reference from the Smart Recovery facilitator;

(xviii)   the reference from the Coordinator Teen/Youth Smart Recovery Australia;

(xix)   the reference from Mr Hammond;

(xx)   the reference from Mr Grace's mother;

(xxi)   the reference from Mr De Voy.

1. In addition, Mr Martin had no objection to the following documents being provided to Ms Carson provided that they also were appropriately redacted:

(a) the Outline of Sentencing Submissions prepared on behalf of Mr Grace and the Crown's Sentencing Submissions; and

(b) the statement by Mr Grace dated 16 January 2012.

1. Mr Martin did however take objection to the totality of the following documents being provided to Ms Carson:

(a) the Pre-Sentence Report (exhibit B); and

(b) the following documents from exhibit 1:

(i) the report of the psychiatrist;

(viii) the reference from the solicitor; and

(x) the reference from the senior business executive.

1. The substance of the submissions made by Mr Martin was that given that the substance of the objected to material had been referred to in the Remarks on Sentence the requirements of open justice were satisfied and that considerations of privacy require that further specific information did not need to become available to the media.

1. An immediate problem (uninstructed by authority) that I saw with that submission was that it could only have been made because of the manner in which the court received the relevant evidence. It could not have been made if the evidence had been given orally.

1. After hearing from both Mr Martin and Ms Carson, I reserved my decision.

1. The issue raised by Mr Martin is one which has received considerable attention in recent times.

1. In 2003 the New South Wales Law Reform Commission conducted a review entitled "Law of Contempt by a Publication" which was the result of an extensive and comprehensive consultation process.

1. Following the Law Reform Commission's review, the New South Wales Supreme Court in 2004 undertook its own community consultation process.

1. As a result of that consultation process, in June 2006 the Attorney-General's Department issued a Discussion Paper entitled "Review of the Policy on Access to Court Information" for public consultation. As a result of that consultation process, the Department published a report in July 2008 entitled "Report on Access to Court Information".

1. In October 2009 the Attorney-General released a consultation draft of a Bill entitled "Court Information Bill". As a result of representations made to the draft Bill (including a report by the Legislative Review Committee of the Parliament of New South Wales), the Court Information Bill 2010 was presented to the Parliament in May 2010. Although the Bill was passed by both Houses of Parliament and has received the royal assent, it has not yet been proclaimed.

1. In introducing the Bill to the parliament, the Attorney-General's second reading speech noted:

"Access to information held in court records is an essential feature of an open justice system. It allows the public to be informed about what takes place in the courtroom and to understand the basis on which judicial officers make their decisions.

Procedural reforms designed to improve the efficiencies of courts have meant that information that used to be provided to the court orally is now often tendered to the court in the form of documentary evidence.

Therefore, the ability of the media to accurately report, and of the public in general to understand, what takes place in the courtroom increasingly depends on access to court records.

...

Access to court information is a complex area of law requiring a balance between the competing considerations of open justice and individual privacy ..."

1. The Objects of the Court Information Bill 2010 are:

"(a) to promote consistency in the provision of access to court information across NSW courts,

(b) to provide open access to the public to certain court information to promote transparency and a greater understanding of the justice system,

(c) to provide for additional access to the media to certain court information to facilitate fair and accurate reporting of the court proceedings,

(d) to ensure that access to court information does not compromise the fair conduct of court proceedings, the administration of justice, or the privacy or safety of participants in court proceedings, by restricting access to certain court information." (See clause 3)

1. The regime provided for by the Bill includes an acknowledgement of the importance of personal identification information; and the establishment of two classes of information - "open access information" and "restricted access information".

1. Relevantly for present purposes, "restricted access information" includes "information contained in a statement that comprises a medical, psychiatric, psychological or pre-sentence report, except information contained or summarised in a judgment given or orders made in proceedings" (see clause 6(2)(e)).

1. It may be accepted, therefore, that the information or evidence which Mr Martin objects to being released to the media is information which falls within the definition of "restricted access information" within the meaning of the Bill.

1. The Bill however does provide that restricted access information may be provided to third parties by leave of the court (cf clause 9(1)).

1. Additionally, the Bill provides criteria (not exhaustive) for the court to take into consideration in deciding whether or not to grant such leave (cf clause 9(2)). Those criteria include:

"(a) the public interest in access to the information being provided,

(b) the extent to which the principle of open justice would be adversely affected if access is not provided to the information,

(c) the extent to which an individual's privacy or safety will be compromised by providing access to the information,

(d) the extent to which providing access to the information will adversely affect the administration of justice,

(e) the extent of the person's interest or involvement in the proceedings or other matter to which the information relates,

(f) the reasons for which access is sought,

(g) such other matters as the court considers relevant in the particular circumstances of the case."

1. Furthermore, in granting access to restricted access information the Bill provides that the court may impose conditions on the grant of leave (cf clause 9(3)).

1. Mr Martin submitted that, although the Bill had not been proclaimed, nevertheless the court in considering the merits of the application should exercise its discretion by taking the principles of that Bill into account.

1. He further submitted that in that circumstance an onus lay on the applicant for access to restricted access information to satisfy the court that the criteria for the granting of leave had been made out.

1. Mr Martin further submitted, in the present case, that onus had not been satisfied.

1. Ms Carson, however, submitted that as the legislation had not come into force, there was no requirement upon her to establish that any of the criterion for the grant of leave for restricted access information had to be established. Rather, Ms Carson submitted that the onus was on Mr Grace to establish why access to information should not be granted. In effect, Ms Carson submitted that her application should be decided by reference to existing common law principles.

1. The common law recognises and accommodates the apparently competing claims of the principles of open justice and the protection of a person's right to privacy (as to the latter see John Fairfax Publications Pty Limited v Ryde Local Court [2005] NSWCA 101 at [77]).

1. The right to privacy, however, in the present context must be understood as involving a person guilty of a serious criminal offence putting material before the court which he wishes the court to take into account in arriving at an appropriate sentence. Necessarily from the offender's perspective that is not done so as to maximise that sentence.

1. It must also be understood as involving the presentation of that material not orally in the witness box but as I have said for reasons of administrative convenience by way of documents.

1. As I shall seek to explain, administrative convenience should not be used to keep withheld from the public (in this case via the present application) material which otherwise would or could have been publicly given in full.

1. The fundamental importance of the administration of justice taking place in open court is well established; for example, see Scott v Scott [1913] AC 417 at 440; John Fairfax & Sons Pty Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-477; and John Fairfax Publications Pty Limited v District Court [2004] NSWCA 324 at [18].

1. In Russell v Russell (1976) 134 CLR 495 at 520 Gibbs J, in a passage cited with approval in The Queen v Tait (1979) 46 FLR 386 at 402, said:

"It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted 'publicly and in open view' [citation from Scott v Scott omitted]. This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Furthermore, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact the courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of an administrative officials, for 'publicity is the authentic hall-mark of judicial as distinct from administrative procedure' (citation from McPherson v McPherson omitted)."

1. It is submitted by Mr Martin that these principles are satisfied if in Remarks on Sentence the sentencing judge incorporates in substance the material which has been tendered in documentary form.

1. In my view, that submission taken at that level of generality is not correct. First, it overlooks the point I have earlier made in these remarks that it is only for administrative convenience that the material was received in documentary form. Secondly, however, how is the public to know that the judge has accurately relied upon the material with which he or she has been provided? It is not enough in my view for the Crown to have been a party to the arrangement.

1. The Bill therefore effects (in theory at least) a restrictive change to the common law insofar as the category of documents in clause 6(2)(e) of the Bill are concerned. Subject to any constitutional restraints, Parliament can do so. But a court cannot (see Russell v Russell ibid at 520; and John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324 at [19].

1. Accordingly, I shall not exercise any discretion vested in me by reference to the provisions of the Bill; but rather shall do so in accordance with existing common law principles.

1. I shall now turn to consider the individual documents to see whether there is any particular reason why non-disclosure (other than by appropriate redaction) should occur.

The Pre-Sentence Report:

1. This document contains the following information:

(a)   the sources of information relied upon;

(b)   prior contact with the Department of Corrections (nil);

(c)   relevant family/social factors;

(d)   education/training/employment;

(e)   mental health issues;

(f)   drug issues;

(g)   attitude to the offence;

(h)   summary of the above together with community-based sentencing options;

(i)   suitability for supervision;

(j)   suitability for a community service order.

1. Apart from redacting the date of birth of Mr Grace, there is nothing in that Pre-Sentence Report which in my view requires it to be withheld from Ms Carson.

1. I should note further that if I were wrong in concluding that the substance of the Court Information Bill should not be taken into account by me, I would have granted leave for Ms Carson to have access to the document by having regard to the criteria identified in clause 9(2).

Report of the Psychiatrist:

1. The predominant content of this report is background or historical information obtained by the psychiatrist - being the sort of information which one might expect an offender to give on his own behalf.

1. The contents of the document are not such as to unreasonably intrude into the privacy of Mr Grace, particularly considering the nature of the offence and the matters which he has asked the court to take into account in minimising the penalty which he was to receive.

1. Apart from redacting the name of the psychiatrist and the reference to Mr Grace's brother's illness, I propose to grant access to Ms Carson.

1. Again, if I were considering the matter pursuant to the provisions of the Court Information Bill, I would have by leave granted access again by reference to the criteria in clause 9(2).

The Reference from the Solicitor:

1. The solicitor concerned acted for Mr Grace and his siblings in relation to the estate of their late father. I referred to that litigation in a very general way in my Remarks on Sentence. The stress caused by the litigation seems to me to be highly relevant to the circumstances in which Mr Grace came to commit the offence. Indeed, that was a specific submission made on his behalf.

1. In addition, the solicitor provides a form of character reference for Mr Grace.

1. There is no issue of particular privacy which outweighs the requirement for transparency and I propose to grant access to Ms Carson to that document. There is no need for any part of it to be redacted.

1. Again, if I were considering the matter to the Court Information Bill, I would have granted leave by reference to the criteria in clause 9(2).

The Reference from the Senior Business Executive:

1. Mr Martin did not appear on behalf of this gentleman. As I pointed out in submissions, Mr Martin therefore had no standing to object to the release of the document.

1. Moreover, there is nothing in the contents of the document of any sensitivity at all. For reasons which were quite unclear to me, Mr Martin did not wish the identity of that person to be known as a referee for Mr Grace.

1. I can see no issue of privacy that would justify that document being excluded from the public domain and I propose to grant access to it to Ms Carson.

1. Similarly, as with the other matters I have referred to already in these reasons which were the subject of contest if considering this application pursuant to the Court Information Bill, I would have granted leave for the document to be made available having regard to the criteria in clause 9(2).

Should the Court Require an Undertaking:

1. In the course of argument Mr Martin submitted that, if I were ultimately to grant access to the documents the subject of objection (appropriately redacted), I ought to seek an undertaking both from Ms Carson and her employer that the documents would only be used for a fair reporting of the proceedings in the court.

1. In this regard, on a number of occasions Mr Martin darkly referred to "collateral purposes".

1. Mr Martin was unable to be more specific in relation to those "purposes" beyond asking the court to draw a vague inference of impropriety by having regard to a statement prepared by Mrs Grace dated 26 January 2012 (MFI 4 - not made available to Ms Carson) and the front page and page 2 of the edition of The Daily Telegraph of 5 January 2012 (MFI 5). Those two documents in my view do not support the court concluding that Ms Carson wishes to have the documents for any other purpose other than that which is contained in her application (MFI 1), namely "to report fairly and accurately on sentencing".

1. Accordingly, I do not propose to require Ms Carson or her employer to provide the court with the undertaking requested by Mr Martin. In the event that the material was used for purposes other than that for which they are to be supplied, there are appropriate remedies.

Orders and Directions:

1. I order that copies of the documents referred to in paragraphs 2, 3 and 5 of these Reasons be made available to Ms Carson of The Daily Telegraph solely for the purpose of her and her employer to fairly and accurately report upon the sentencing of Mr Grace.

1. I direct that a copy of the redacted documents be placed in the court file and marked for identification 6.

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Decision last updated: 06 February 2012