R v BB (No 6)

[2021] NSWSC 1518

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v BB (No 6) [2021] NSWSC 1518

Hearing dates:

24 November 2021

Date of orders:

24 November 2021

Decision date:

24 November 2021

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

1. Under s 7(1) of the Court Suppression and NPO Act 2010, the names of either the offender in these proceedings or his partner not be published nor anything that would identify either of them;

2. Further that there not be published one or other of the connections of either of the foregoing with or the identity of the company [REDACTED]; and

3. There not be publication of any information disclosing the possession by either person of documents or information that was seized or used by law enforcement agencies in the investigation or prosecution of either of them.

Catchwords:

COURTS and JUDGES – Application for broad suppression/non publication order – risk to safety of families of offender and spouse overseas – risk unacceptable – principle of open justice primary consideration – non-publication order issued restricted to certain information and home and identity of offender and spouse.

Legislation Cited:

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

Cases Cited:

D1 v P1 [2012] NSWCA 314
John Fairfax v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324
John Fairfax & Sons v The Police Tribunal (1986) 5 NSWLR 465
Pelechowski v Registrar of the Court of Appeal (New South Wales) (1999) 198 CLR 435

Category:

Procedural rulings

Parties:

Regina (Crown)
BB (a pseudonym)

Representation:

Counsel:
M McHugh SC/ A McGrath (Crown/Respondent)
S Pararajasingham (Offender/ Applicant)

Solicitors:
Director of Prosecutions (Cth) (Crown/ Respondent)
Musgrave Legal (Offender/ Applicant)

File Number(s):

2016/321930

Publication restriction:

Suppression orders made under s 7(1) of the Court Suppression and NPO Act 2010 (NSW)

EX TEMPORE Judgment

1. HIS HONOUR: Ordinarily I would reserve reasons in relation to an application for a suppression or non-publication order. The matter concerns an application by Motion in the proceedings for a suppression or non-publication order and relates to evidence before the Court of a fear on the part of the offender and his partner of reprisals against either of them and more obviously their family that still resides in Iran. An interim suppression order issued on Monday, 22 November 2021, relating to the whole of the matter. That was done on the basis that the Court did not want to render nugatory that which is now before the Court.

2. The issue that needs to be determined is the issue of whether, pursuant to the terms of s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (hereinafter "the Act"), the Court should prevent or prohibit the publication of certain information.

3. The application as it was framed was in relatively broad terms. During the course of the discussion between counsel on both sides and the Court that seems to have been narrowed to issues associated with the names and identity of the offender in this case and his partner, who in fact is an offender in other proceedings, a company with which they are associated and whether or not information was obtained from them in documents.

4. The issue that is now before the Court is an issue that arises under s 7 of the Act. Section 10 of the Act deals with interim orders and allows the Court to make such orders without determining the merits of the case. Section 7 of the Act allows the Court to make a suppression order or non-publication order on a number of grounds. Relevantly that which is relied upon is that which is contained in s 8(1)(c) which allows the Court to make orders where it is necessary to protect the safety of any person. That provision must be understood in light of the provisions of s 6 which make it clear that the primary objective of the administration of justice is to safeguard the public interest in open justice.

5. There are a number of matters that are raised. I will set out the sections of the Act that are relevant.

Part 2 Suppression and non-publication orders

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.

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.

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,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

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

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or 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),

(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.

(3) Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds 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

6. As already stated, the material before the Court, admittedly by way of hearsay on the basis that this is an interlocutory hearing and a hearing relating to sentencing, is to the fear of what I will call the two offenders and the likelihood of reprisal against their families and/or friends or acquaintances in Iran.

7. The Court takes note of the material provided by the Crown, for which I am grateful, being the briefing paper on Iran prepared by the Department of Foreign Affairs and Trade. It can be said that there are parts of the operation of Iran that are extremely troubling. There is reference in that document to extrajudicial killings. There is reference to a range of conduct that, regardless of how one may feel about some acts of our governments, would be simply abhorrent to anyone who lived and understood the culture that exists in Australia. That gives me great concern.

8. Even though in many respects conduct by way of reprisal against either one of the offenders would be irrational in the sense that, as I mentioned during the course of proceedings, these two offenders assisted the interests of the Iranian Government in arranging for goods that were sanctioned by the United Nations to be delivered to Iran, it would be seemingly irrational in those circumstances for the Iranian Government to be concerned at the fact that that has been found out by the Australian Government and that people have been sentenced for offences as a consequence of that conduct. Nevertheless, there are some aspects of the issues which, without repeating them, I accept may give rise in the context of a Government such as Iran to conduct that would be by way of reprisal, either against one of the offenders, were they overseas or even in Australia, or against one of the offenders' family members.

9. The question, therefore, is whether that circumstance is sufficient to meet the requirements of para (c) of s 8(1) of the Act. It is unfortunate, but probably necessary to note that the material before the Court is by way of hearsay, but it would be unlikely in those circumstances for it to be anything other than hearsay and must necessarily relate to a fear rather than conduct that has already existed, except perhaps, as has occurred on previous occasions with which the Court as presently constituted has dealt, where there have been reprisals, usually by persons other than Government and the like in Australia.

10. The proposition with which the Court starts and which is the primary consideration under the Act is the principle of open justice. The importance of open justice cannot be underestimated. It is necessary, in order for justice to be administered in a way that people can see the manner in which judges operate and the evidence that is adduced against persons, that the public has available to it a means by which justice can be done and be seen to be done by the Courts. It is a deterrent to corruption and to a range of other problems associated with misconduct which, frankly, I am aware has occurred in other countries and, thankfully, has not occurred in this country, at least not to any great extent.

11. The Court of Appeal in D1 v P1 [1] referred to the principle of open justice and its importance. I will not read it now but I will include in the judgment paras 49, 50 and 51 of that judgment.

“[49] The first issue which arises when considering necessity is whether and to what extent an applicant for a suppression order under s 7 of the Act who relies on the ground specified in s 8(1)(c) is required to prove, on the balance of probabilities, that the order sought is necessary to protect the safety of any person, in the sense that absent the order being made it would be probable that the person in question would suffer harm. Put another way, is it a precondition to the operation of the section that as a matter of probability the person in question would suffer harm if an order was not made?

[50] On this construction of the subsection consideration must be given to the alternate ways in which the probability of harm could be prevented. In the present case if the evidence establishes that the more limited prohibition on publication ordered by the primary judge, whilst not eliminating the risk or possibility of serious injury, would have the effect of not rendering the risk that such injury would occur probable, a court would not be entitled to make a more extensive order in reliance on s 8(1)(c) of the Act.

[51] The alternative construction of s 8(1)(c) is that all the section requires is for the court to be satisfied on the balance or probabilities that the order sought is necessary to protect a person’s safety. On this construction proof of the probability of harm is not a precondition. The necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that an order is necessary even if the risk is a possibility as opposed to a probability. Once again it would seem to me that alternative steps to the making of the suppression order sought would need to be considered in determining whether the order was in fact necessary.”

1. [2012] NSWCA 314.

12. As earlier stated, the starting point for the exercise of the jurisdiction to issue a suppression order is the principle of open justice. In John Fairfax & Sons v The Police Tribunal, [2] the Court of Appeal was dealing with the powers of a Police Tribunal and remarked that it had no powers or jurisdiction to suppress. Nevertheless, the Court discussed open justice. McHugh J, then on the Court of Appeal, said:

“The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom.” [3]

2. (1986) 5 NSWLR 465.

3. Ibid at pp 476.G-477.A.

13. This case has occurred in open court. Anybody who has desired it has been able to listen to the first trial, the evidence that was adduced, the submissions and all of the circumstances of the proceedings, including the names of the offenders. What is now sought is an application for suppression of publication.

14. The Crown relies on two aspects. First, it relies on the fact that the test of necessity has not been met, and that is a requirement of s 8(1)(c) which is relied upon by the offender. The second is that, to some extent, the orders would be of futility because there has already been some publicity and the proceedings have been conducted in open court and people have been able to report that which has occurred so far.

15. In relation to the latter aspect, it seems to me not a matter that detracts from the necessity or efficaciousness of the suppression order; indeed, it does qualify, as earlier stated, some of the issues that might otherwise be associated with restrictions on open justice.

16. In John Fairfax v District Court of New SouthWales,[4] Spigelman CJ dealt with this context and the issues of safety stating:

“[17] As often happens in a context involving fundamental principle, two such principles are in conflict and a judgment must be made as to which principle is to prevail in the circumstances. The principle of open justice and the principle of a fair trial each inform and energise many areas of the law, as I have sought to show in extra-judicial addresses. (See, Spigelman, “Seen to be Done: The Principle of Open Justice” (2000) 74 ALJ 290, 378 and Spigelman, “The Truth Can Cost Too Much: The Principle of a Fair Trial” (2004) 78 ALJ 29.)

[18] It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian court of justice. There is no inherent power of the Court to exclude the public. (See Scott v Scott [1913] AC 417 at 473; Dickason v Dickason (1913) 17 CLR 50 at 51; Daubney v Cooper (1829) 109 ER 438 at 440; Russell v Russell (1976) 134 CLR 495 esp at 507 and 520–521, 532.) The taking of a verdict is something which occurs in the ordinary course of criminal proceedings. (See, eg Coulter v R (1988) 164 CLR 350 at 356 , 357 and cf 359–360, 362.)

[19] It is also well established that the exceptions to the principle of open justice are few and strictly defined. (See, eg McPherson v McPherson [1936] AC 177 at 200; R v Tate (1979) 46 FLR 386 at 402.) It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional constraints. (See, eg Dickason at 51; Russell at 520; John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 181 ALR 694 at [70]-[73].)

[20] The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. (See, eg Attorney General v Leveller Magazine Ltd [1979] AC 441 at 450.)

[21] From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, eg Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D-E and 54G.)

[22] The principle of a fair trial has been characterised in numerous High Court judgments in the most forceful of terms. It has been described as “the central thesis of the administration of criminal justice”: McKinney v R (1991) 171 CLR 468 at 478; as “the central prescript of our criminal law”: Jago at 56; as a “fundamental element” or a “fundamental prescript”: Dietrich v R (1992) 177 CLR 292 at 299 , 326; and as an “overriding requirement”: Dietrich at 330. It is not a new principle. As Isaacs J put it in 1923 with reference to “the elementary right of every accused person to a fair and impartial trial”: “Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle”: R v MacFarlane; Ex parte O’Flanaghan & O’Kelly (1932) 32 CLR 518 at 541–542.” [5]

4. (2004) 61 NSWLR 344; [2004] NSWCA 324.

5. Ibid at paras 17-22.

17. As I have tried to make clear, the importance of open justice cannot be overstated. I have also stated during the course of the proceedings that, in my experience, if one is talking about the press - I am talking now about legitimate press and mass circulation media - it behaves reasonably in relation to these matters, both as to the issues associated with identity and with the matters that should be reported without being problematic. I do consider that it is problematic to have some of this material published and I think that, on the material before me, it may give rise to significant issues in Iran for the family of the offenders.

18. The publication order that I will make, and I intend to make it, will not, in my view, interfere with the public's right to scrutinise the conduct of the Court, nor will it interfere with the implementation of justice, both of which are fundamental protections that ensure the proper operation of the justice system. It allows judges to be the subject of criticism in relation to their judgments, it ensures that the implementation of justice is not seen to be governed by any secret or undisclosed factors and each of those are essential elements of the justice system. Nor will it interfere, it seems, with the Australian Government’s need to report its enforcement of the UN Sanctions to it allies or the U.N itself.

19. Dealing with the issue of necessity, the High Court dealt, in relation to the powers or jurisdiction of the District Court, with the meaning of the word "necessary" in the context of the implied powers of a court of record.

20. In Pelechowski v Registrar of the Court of Appeal (New South Wales),[6] the High Court - the plurality judgment was written by Gaudron, Gummow and Callinan JJ - said:

“The term 'necessary' in such a setting as this is to be understood in the sense given to it by Pollock CB in The Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided...”

“In this setting, the term 'necessary' does not have the meaning of 'essential'; rather it is to be 'subjected to the touchstone of reasonableness'.” [7]

6. (1999) 198 CLR 435.

7. Ibid para [51].

21. Applying that test is the appropriate means of looking at what is meant by the term "necessary" in s 8 of the Act. Indeed, were it not applied in that way, then the primary consideration could never outweigh the criteria prescribed by s 8.

22. The Court must consider whether the accomplishment of the prescribed criterion outweighs the public interest in open justice in that evaluation. In doing so, there may be different answers, depending upon the nature and extent of the suppression power that is sought or ordered.

23. It seems to me that the threat of and to the safety of the families of the offenders would be an inappropriate outcome of any sentencing exercise and any prosecution exercise and the threat is real enough to warrant it being the basis for the accomplishment of the powers associated with sentencing and, indeed, with the administration of justice.

21. In all of the circumstances, I will make orders under s 7(1) of the Court Suppression and Non-publication Orders Act 2010 that the names of either the offender in these proceedings or his partner not be published, nor anything that would identify either of them. Further, that there not be published one or other of their connections with or the identity of the company [REDACTED] and that there not be publication of any information disclosing the possession by either person of documents or information that were seized or used by law enforcement agencies in the investigation or prosecution of either of them.

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Endnotes

Amendments

22 March 2022 - Incorrect File Number.

Decision last updated: 22 March 2022