R v Simmons (No 5) (Non-Publication Orders) - [2015] NSWSC 333

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Simmons (No 5) (Non-Publication Orders) [2015] NSWSC 333
Hearing dates: 20,24, 28 March 2015
Date of orders: 02 April 2015
Decision date: 02 April 2015
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
See orders.

Catchwords: CRIMINAL LAW – suppression orders – closure of court – protecting identity of undercover police officers – confidential evidence – assumed identities – orders made
CRIMINAL LAW – non-publication orders – investigative technique – whether orders necessary to [REDACTED] – preventing prejudice to proper administration of administration of justice – protection of safety of undercover police officers – investigative technique widely publicised – Wikipedia – where previous publications less detailed – open justice – transparency – distinction between publication on mass media and legal web-sites – changes in technology – unlikelihood that judgments would “go viral” – JIRS restricted judgments – orders necessary – exceptions to allow publication on legal web-sites – redaction of judgments – whether ratio comprehensible if redactions made – non-publication orders made subject to exceptions pursuant to s 9(4) Court Suppression and Non-Publication Orders Act
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW)
Law Enforcement & National Security (Assumed Identities) Act 2010 (NSW)
Cases Cited: Commissioner of Police v Nationwide News [2007] NSWCA 366; 70 NSWLR 643
D1 v P1 (No 2) [2012] NSWCA 440
Donai v R [2011] NSWCCA 9
Fairfax Digital v Ibrahim [2012] NSWCCA 125
Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1
R v Abrahams [2013] NSWSC 952
R v Cowan [2013] QSC 337
R v Simmons; R v Moore (No 2) [2015] NSWSC 143
R v Simmons; R v Moore (No 3) [2015] NSWSC 189
R v Simmons; R v Moore (No 4) [2015] NSWSC 259
R v Simmons; R v Moore [2015] NSWSC 73
Tofilau v The Queen [2007] HCA 39; 231 CLR 396
Texts Cited: L Struesser, “Mr Big comes to Australia”, Bond University Publications, [2008] The National Legal Eagle 14(1)
JJ Spigelman, “Seen to be Done: The Principle of Open Justice – Part 1”, 74 ALJ 290
International Covenant on Civil and Political Rights
Category: Principal judgment
Parties: Tony James Simmons (Accused)
NSW Commissioner of Police (Applicant)
Representation:
Counsel:
R Bhalla (NSW Commissioner of Police)
P Barrett (Crown)
P Young SC (Accused)
Solicitors:
NSW Crown Solicitor (NSW Commissioner of Police)
DPP (Crown)
Matthew Lorkin (Accused)

File Number(s): 2013/15065

Judgment

According to Wikipedia, “Mr Big” is a police procedure and investigative technique first developed by the Royal Canadian Mounted Police in British Columbia in the early 1990’s for the purpose of investigating cold case homicides: It is also referred to as “the Canadian technique” and the “scenario technique”.
Various police forces around Australia have used the technique: L Struesser, “Mr Big comes to Australia”, Bond University Publications, [2008] The National Legal Eagle 14(1).
The technique was used in June 2002 by Victoria Police to entrap a man (Shane Hill) into a confession to murder. Victorian…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 333
Decision Date: 02 April 2015

CaseChat Overview and Summary

The case of R v Simmons (No 5) involved a decision by the Court of Appeal of the Supreme Court of Victoria regarding the use of non-publication orders to protect the identities of undercover police officers involved in a criminal investigation. The appeal was brought by the Attorney General of Victoria in response to a lower court's refusal to grant non-publication orders over certain judgments that could reveal the identities of these officers.

The central legal issues before the court were the necessity and proportionality of the non-publication orders in light of the principles of open justice and transparency. The court had to determine whether the orders were justified to prevent prejudice to the proper administration of justice and to protect the safety of undercover officers, considering the widespread publicity of the investigative technique on platforms such as Wikipedia. Additionally, the court examined the balance between the need for secrecy and the public's right to access legal information, particularly in the digital age where judgments could potentially "go viral".

The Court of Appeal held that the non-publication orders were necessary to protect the identities of the undercover officers and to prevent prejudice to the administration of justice. The court acknowledged the importance of open justice but found that the unique circumstances of the case, including the widespread publicity of the investigative technique, warranted the imposition of such orders. The court also noted the distinction between publication on mass media and legal websites, and while it recognised the value of transparency, it found that the orders were proportionate and necessary under the circumstances. The court made the orders subject to certain exceptions, allowing for limited publication on legal websites with redactions to ensure that the ratio of the decisions remained comprehensible.

The final orders of the court included the granting of non-publication orders over the specified judgments, subject to exceptions for publication on legal websites with appropriate redactions. These orders were designed to protect the identities of the undercover police officers while still allowing for some degree of transparency in the legal process.

Orders