R v Hutchison, Wilkinson and Greentree (No 3)

[2018] NSWSC 1758

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Hutchison, Wilkinson & Greentree (No 3) [2018] NSWSC 1758
Hearing dates:	15 August 2018
Decision date:	16 November 2018
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	(1)   A suppression order is made over the surname of the deceased and the children who gave evidence in the trial. (2) A non-publication order is made over the contents of exhibit H-15 (agreed facts in relation to the Family Court proceedings) beyond the details published in the judgment known as R v Hutchison & Wilkinson [2018] NSWSC 1759. (3) Apart from the file copy of the judgment of R v Hutchison & Wilkinson [2018] NSWSC 1759, the following pseudonyms are to be used in the published and online version of that judgment: a. “Walker” for the family name of the deceased. b. “April” for the first name of the daughter of the deceased. c. “Toby” for the first name of the son of the deceased. d. “Tiffany Johnson” for the name of the friend of the daughter of the deceased who gave evidence in the proceedings. (4) These orders are made pursuant to the grounds set out in s 8(1)(a) and 8(1)(e) of the Courts Suppression and Non-Publication Orders Act 2010. (5) Pursuant to s 11, these orders will have effect throughout the Commonwealth of Australia. (6) Pursuant to s 12, these orders are to remain in force until further order of the Court.
Catchwords:	CRIMINAL LAW – suppression orders – non-publication orders – necessity – identity of children – family court proceedings – where statutory prohibition on publication – whether necessary or appropriate to make orders – where material subject to statutory prohibition adduced in evidence – where knowledge of material necessary for understanding of judgment – pseudonym orders
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), s 15A Court Suppression and Non Publication Orders Act 2010 (NSW), ss 6, 8, 10, 11 and 12 Family Law Act 1975 (Cth), s 121
Cases Cited:	Application by John Fairfax Publications Pty Ltd re MSK and Others [2006] NSWCCA 386 R v Hutchison & Wilkinson [2018] NSWSC 1759
Category:	Procedural and other rulings
Parties:	Regina Raquel Hutchison Paul Wilkinson Daniel Greentree
Representation:	Counsel: M Cunneen SC (Crown) B Rigg SC & S Beckett (Hutchison) M Ainsworth (Wilkinson) I Todd (Greentree)   Solicitors: Director of Public Prosecutions NSW (Crown) Blair Criminal Lawyers (Hutchison) McGirr Lawyers (Wilkinson) Tully & Chiper Lawyers (Greentree)
File Number(s):	2014/00308895 (Hutchison)2014/00308929 (Wilkinson)2014/00319883 (Greentree)
Publication restriction:	Nil

Judgment

1. On 10 August 2018, on the joint application of the Crown and the accused, I made interim orders pursuant to s 10(1) of the Court Suppression and Non Publication Orders Act 2010 (NSW) (“the Act”) in the following terms:

An interim non-publication order is made over the deceased’s surname, which applies to both the deceased and some of the witnesses in the case.

2. I also made interim orders over publication of (and access to) material tendered first on the voir dire (Ex VD 10) and then in the trial proper (Ex H-15).

3. Section 10(2) requires the Court to determine the application for final orders as a matter of urgency. I invited any members of the media who sought to be heard to indicate as much to my Associate. I heard argument on 15 August 2018. No application was made by any member of the media to make submissions against the making of the orders sought.

4. The present trial involves the alleged murder of a man by his ex-wife and her fiancé. The evidence included an agreed statement of facts setting out a number of matters that arose in the course of proceedings in the Family Court. Some of the witnesses also gave evidence of things that occurred in the course of the Family Court proceedings. Some of this evidence is otherwise subject to a statutory prohibition proscribing publication of specified information relating to family law proceedings: Family Law Act 1975 (Cth), s 121. Sub-s (1) creates an offence if such information is published. Sub-s (9) of that section provides an exception relating to the publication of material for the purpose of court proceedings. The trial also involved evidence given by three children. There is a statutory prohibition on publication of any information that might identify those children: Children (Criminal Proceedings) Act 1987 (NSW), s 15A

5. Before making a final order under the Act, I must be satisfied that the order is “necessary” under one of the grounds set out in s 8. A test of “necessity” also guides the decision to make any order within the Court’s inherent jurisdiction that might restrict publication or otherwise interfere with the fundamental requirement for open justice.

6. It was held in Application by John Fairfax Publications Pty Ltd re MSK and Others [2006] NSWCCA 386 that:[1]

“It is unnecessary and, generally, would be inappropriate, for the Court to make an order for the purpose of serving the same policy objectives as the scheme for which Parliament has legislated…”

1. Application by John Fairfax Publications Pty Ltd re MSK and Others [2006] NSWCCA 386 at [26].

7. In the present case, the parties agreed that some orders should be made to ensure that the children were protected in view of the particularly sensitive nature of some of the evidence given in the trial. On the other hand, in a case of this nature and seriousness the requirement for open justice is substantial. The principal of open justice is enshrined in the common law and also finds voice in ss 6 and 8 of the Act. It is particularly important that the public understands the Court’s reasoning and the family law dispute is of real significance to the issues litigated in this trial.

8. I have reached the view that certain orders are necessary to prevent prejudice to the proper administration of justice and in particular to maintain the integrity of the Family Court proceedings, not only in this case but more generally. While the statutory prohibition may cover some of the orders I propose to make, their application to these proceedings would not be obvious to the media or any member of the public reporting or talking about the case. Similarly, in order to serve the objectives of the Children (Criminal Proceedings) Act and, at the same time, make the Court’s judgment accessible and readable, it is necessary (under the Court’s inherent powers) to make pseudonym orders.

9. However, in order to make transparent and understandable the judgment of the Court, which involves the reasoning towards the verdicts concerning charges of great seriousness against two citizens, I will make an exception to those parts of the Family Law proceedings that are referred to in the judgment. Neither party suggested that such a “carve out” was inappropriate.

10. Insofar as the orders are made under the Act, I am also satisfied that “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”.

11. Accordingly, I make the following orders:

1. A suppression order is made over the surname of the deceased and the children who gave evidence in the trial.

2. A non-publication order is made over the contents of exhibit H-15 (agreed facts in relation to the Family Court proceedings) beyond the details published in the judgment known as R v Hutchison & Wilkinson [2018] NSWSC 1759.

3. Apart from the file copy of the judgment of R v Hutchison & Wilkinson [2018] NSWSC 1759, the following pseudonyms are to be used in the published and online version of that judgment:

1. “Walker” for the family name of the deceased.

2. “April” for the first name of the daughter of the deceased.

3. “Toby” for the first name of the son of the deceased.

4. “Tiffany Johnson” for the name of the friend of the daughter of the deceased who gave evidence in the proceedings.

4. These orders are made pursuant to the grounds set out in s 8(1)(a) and 8(1)(e) of the Courts Suppression and Non-Publication Orders Act 2010 (NSW).

5. Pursuant to s 11, these orders will have effect throughout the Commonwealth of Australia.

6. Pursuant to s 12, these orders are to remain in force until further order of the Court.

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Endnote

Amendments

20 November 2018 - Correction made to the spelling of counsel's name on coversheet.

Decision last updated: 20 November 2018