Smith v New South Wales Crime Commission (No 4)

[2024] NSWSC 1656

Supreme Court

New South Wales

Medium Neutral Citation:

Smith v New South Wales Crime Commission (No 4) [2024] NSWSC 1656

Hearing dates:

13 December 2024

Date of orders:

18 December 2024

Decision date:

18 December 2024

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

Orders made under Court Suppressions and Non-Publication Orders Act 2010 (NSW)

Catchwords:

CIVIL PROCEDURE – suppression and non-publication orders – application for pseudonym and other orders – whether orders necessary to protect the safety of the fourth defendant – whether orders necessary in the public interest – where fourth defendant fears for her safety and the safety of their family – where fourth defendant has legitimate basis for concern about their safety – where orders being made will have limited impact on open justice – suppression and non-publication orders made

Legislation Cited:

Court Suppressions and Non-Publication Orders Act 2010 (NSW)

Crime Commission Act2012 (NSW)

Cases Cited:

AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202

AB (a pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46

John Smith (a pseudonym) & Jane Smith (a pseudonym) v State of New South Wales & Ors [2024] NSWSC 507

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

John Smith (a pseudonym) (First Plaintiff)
Jane Smith (a pseudonym) (Second Plaintiff)
New South Wales Crimes Commission (First Defendant)
Director of Public Prosecutions (Second Defendant)
State of New South Wales (Third Defendant)
Jane Doe (Fourth Defendant)

Representation:

Counsel:
D Gasic (Fourth Defendant)

Solicitors:
Zali Burrows at Law (First and Second Plaintiff)
Crown Solicitors (First, Second and Third Defendants)
BlackBay Lawyers (Fourth Defendant)

File Number(s):

2024/165594

Publication restriction:

Nil

JUDGMENT

1. These proceedings concern claims for damages for injuries the plaintiffs claim they have suffered as the result of various earlier breaches of the Crime Commission Act2012 (NSW), the Crime Commission having made directions under that Act, which remain in force. Amongst other things the pleadings raise claims about the safety of those who have come to the attention of the Crime Commission.

2. On 13 December 2024 I made interim orders under the Court Suppressions and Non-Publication Orders Act 2010 (NSW), pending hearing of a motion filed by the fourth defendant, a lawyer, who sought pseudonym and other orders. It was supported by affidavits sworn by the fourth defendant and her solicitor, which explained why such orders were being sought.

3. The plaintiffs opposed those orders and so the motion was listed for hearing on 18 December 2024. They were ordered to file and serve their evidence and I made the interim orders, being satisfied that they were what justice required in the meantime, given the difficult circumstances which had arisen to be considered. The reasons for those orders being referred to in the orders themselves.

4. For the following reasons I have now concluded that the interim orders must be set aside and final orders made, given the evidence and the case which the fourth defendant has advanced about her situation and involvement in these proceedings.

Consent orders proposed

5. On 17 December 2024 the plaintiffs’ solicitor informed the Court of their instructions to consent to orders which the defendants had sought. The parties were then directed to confer and provide the final orders they proposed. The orders agreed were:

“1. Pursuant to s. 7 of the Act, on the grounds set out in s. 8(1)(a), (c) and (e) of the Act:

a.   The Fourth Defendant shall be known in these proceedings by the pseudonym "Jane Doe" or as the "Fourth Defendant".

b.   Pursuant to s. 7 of the Act, and upon the grounds set out at s. 8(1)(a), (c) and (e) of the Act, no person shall publish any information (including, without limitation, any evidence or information about evidence) that reveals, or tends to reveal:

i.   the true identity of the Fourth Defendant including (without limitation):

A.   the true name of the Fourth Defendant; and

B.   any visual or other description of the physical appearance, and/or any other identifying features of the Fourth Defendant; and

C.   the place of residence or work of the Fourth Defendant.

c.   Pursuant to s. 7 of the Act, and upon the grounds set out at s. 8(1)(a), (c) and (e) of the Act, the Fourth Defendant is henceforth to be identified by the pseudonym or title set out in order 1(a) :

i.   on the court file and other court generated records in the proceedings including Judgments; and

ii.   in all documents filed in the proceeding; and

iii.   by all participants at all hearings in the proceeding; and

iv.   by any person who publishes any details of the proceedings.

d.   Pursuant to s. 7 of the Act, and upon the grounds set out at s. 8(1)(a), (c) and (e) of the Act, if any party proposes to file any documentary evidence that includes the name of the Fourth Defendant, then that evidence shall be filed in a form in which:

i.   the name of the Fourth Defendant is redacted; or

ii.   the relevant pseudonyms are used in the relevant parts of the document.

e.   Pursuant to s. 7 of the Act, and upon the grounds set out at s. 8(1)(a), (c) and (e) of the Act, the Registry remove from the public court file any document that does not conform with these orders and place it in a confidential envelope to be placed on the court file, disclosure of the contents of which is prohibited throughout Australia.

f.   Pursuant to s. 7 of the Act, and upon the grounds set out at s. 8(1)(a), (c) and (e) of the Act, disclosure by publication or otherwise of any matter relating to these proceedings be prohibited throughout Australia to the extent only that such disclosure tends to identify the Fourth Defendant in connection with the subject matter of the proceedings.

g.   Each of the orders above has effect until the Court makes an order revoking or amending it, on the Court’s own motion, or on the motion of any person with a proper interest.

2.   Orders 1(a)-(g) apply throughout the Commonwealth of Australia.”

Why final orders must be made

6. The grounds on which suppression order or non-publication orders may be made under the Act are specified in s 8(1) to be:

(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.

7. What was raised by the motion had to be considered in circumstances where Weinstein J had made pseudonym orders in respect of the plaintiffs, even before the proceedings were commenced, given their difficult circumstances: John Smith (a pseudonym) & Jane Smith (a pseudonym) v State of New South Wales & Ors [2024] NSWSC 507.

8. The plaintiffs’ pleaded case includes that they left the country after the breaches of the Crime Commission’s directions because of threats which they received as the result of those breaches. They having been left in fear for their lives and those of their children, as well as for their physical safety and having also suffered various injury, as the result of the breaches of the directions.

9. The fourth defendant is the only other individual who is a party to the proceedings. Her affidavit evidence explains the circumstances in which she became a party to the proceedings, in which the plaintiffs claim that she was involved in the breaches of the Crime Commission’s directions on which they rely to establish their case and also why she has sought orders under the Act.

10. The fourth defendant defends the claims the plaintiffs pursue against her, but still has ongoing concerns for her safety, she being the only other individual party to these proceedings.

11. In her affidavit the fourth defendant explained why her concerns for her own safety have arisen, given not only what the plaintiffs claim, but publicity which the proceedings have already had and the ongoing interest which the proceedings are likely to generate, given their subject matter.

12. That the fourth defendant has a legitimate basis for concern about her safety and that of her family is not challenged and must be accepted, given all that the evidence discloses about the nature of the claimed breaches of the Crime Commission’s directions; how it is alleged that she came to be involved; that the plaintiffs have left the country and are overseas in hiding, because of threats which they have received, since the alleged breaches of the Crime Commission’s directions came to light; and the publicity which the claims the subject of these proceedings have already generated.

13. In the result I am satisfied that the interim orders must now be set aside, and the parties’ agreed position that further orders need to be made accepted. I will thus make final pseudonym and other orders under the Act which will have the result that earlier judgments which I have delivered in the proceedings about an earlier motion, which was heard in open court, will now be restored to Caselaw.

14. Those orders, I am also satisfied, will have limited impact on the open justice rule, which must be properly taken into account in determining the terms of the orders made: AB (a pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 at [47].

15. Further, that the making of those orders is what justice requires, given all that I have explained about the circumstances which arise to be considered. That being necessary to prevent prejudice to the proper administration of justice, to protect the safety of the fourth defendant and it being in the public interest for the orders to be made, that public interest significantly outweighing the public interest in open justice, which will be impacted by the orders, but to a limited extent.

16. These conclusions reflecting the terms of the orders and the unchallenged evidence, which provide a proper basis for satisfaction about the existence of a possibility of harm to the fourth defendant, an officer of the Court, from what is pursued against her in these proceedings, which is of such gravity and likelihood that “without the orders sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable”: AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202 at [15].

17. Given the possibility of that harm, I am also satisfied that it is necessary for the order to operate throughout Australia and for a very considerable period.

Costs

18. The plaintiffs having consented to the orders sought, having had an opportunity to consider what was advanced by the evidence supporting the motion and so properly abandoning their opposition to those orders, it seems to me that the appropriate order is that costs of the motion be costs in the cause.

Orders

19. For these reasons I order that:

1. The interim orders made under the Court Suppressions and Non-Publication Orders Act 2010 (NSW) are now set aside.

2. Costs of the motion be costs in the cause.

3. Pursuant to s. 7 of the Act, on the grounds set out in s. 8(1)(a), (c) and (e) of the Act:

1. The Fourth Defendant shall be known in these proceedings by the pseudonym "Jane Doe" or as the "Fourth Defendant".

2. Pursuant to s. 7 of the Act, and upon the grounds set out at s. 8(1)(a), (c) and (e) of the Act, no person shall publish any information (including, without limitation, any evidence or information about evidence) that reveals, or tends to reveal:

1. the true identity of the Fourth Defendant including (without limitation):

1. the true name of the Fourth Defendant; and

2. any visual or other description of the physical appearance, and/or any other identifying features of the Fourth Defendant; and

3. the place of residence or work of the Fourth Defendant.

3. Pursuant to s. 7 of the Act, and upon the grounds set out at s. 8(1)(a), (c) and (e) of the Act, the Fourth Defendant is henceforth to be identified by the pseudonym or title set out in order 3(a):

1. on the court file and other court generated records in the proceedings including Judgments; and

2. in all documents filed in the proceeding; and

3. by all participants at all hearings in the proceeding; and

4. by any person who publishes any details of the proceedings.

4. Pursuant to s. 7 of the Act, and upon the grounds set out at s. 8(1)(a), (c) and (e) of the Act, if any party proposes to file any documentary evidence that includes the name of the Fourth Defendant, then that evidence shall be filed in a form in which:

1. the name of the Fourth Defendant is redacted; or

2. the relevant pseudonyms are used in the relevant parts of the document.

5. Pursuant to s. 7 of the Act, and upon the grounds set out at s. 8(1)(a), (c) and (e) of the Act, the Registry remove from the public court file any document that does not conform with these orders and place it in a confidential envelope to be placed on the court file, disclosure of the contents of which is prohibited throughout Australia.

6. Pursuant to s. 7 of the Act, and upon the grounds set out at s. 8(1)(a), (c) and (e) of the Act, disclosure by publication or otherwise of any matter relating to these proceedings be prohibited throughout Australia to the extent only that such disclosure tends to identify the Fourth Defendant in connection with the subject matter of the proceedings.

7. Each of the orders above has effect until the Court makes an order revoking or amending it, on the Court’s own motion, or on the motion of any person with a proper interest.

4. Order (3) applies throughout the Commonwealth of Australia and operates for a period of 40 years.

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Decision last updated: 20 December 2024