State of New South Wales v Ayoub

[2023] NSWSC 1122

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Ayoub [2023] NSWSC 1122

Hearing dates:

On the Papers

Date of orders:

14 September 2023

Decision date:

14 September 2023

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

(1) The interim suppression and non-publication order made on 28 July 2023 will be vacated, this order taking effect at 4pm on 29 September 2023.

(2) No order as to costs.

Catchwords:

HIGH RISK OFFENDERS – suppression order

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

the Courts Suppression and Non-Publication Act 2010 (NSW)

Crimes Act 1900 (NSW)

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125

Crimes Regulation 2020 (NSW)

Criminal Procedure Act 1999 (NSW).

Health Practitioner Regulation National Law2009 (NSW)

Health Care Complaints Act 1993 (NSW)

Crime Commission Act 2012 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

State of New South Wales v Ayoub (Preliminary) [2023] NSWSC 479

Rinehart v Welker (2011) 1993 NSWLR 311; [2011] NSWCA 403

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125

Wemyss v Hopkins (1875) LR 10 QB 378 at 381

Griffiths v The Queen (1977) 137 CLR 293;

Saraswati v The Queen (1991) 172 CLR 1

Richards v The Queen [1993] AC 217

Regina v Stone 157 A Crim R 41; [2005] NSWCCA 344

X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29

Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56

Category:

Procedural rulings

Parties:

Jamil Ayoub (Applicant/Defendant)
State of New South Wales (Respondent/Plaintiff)

Representation:

Counsel:
D Bhutani (Applicant/Defendant)
P Aitken (Respondent/Plaintiff)

Solicitors:
Legal Aid (Applicant/Defendant)
Crown Solicitor’s Office (Respondent/Plaintiff)

File Number(s):

2022/330902

Publication restriction:

Nil

JUDGMENT

1. HER HONOUR: In the course of participating in Court ordered consultations with a Forensic Psychiatrist and a Forensic Psychologist pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the CHRO Act”), the defendant, Jamil Ayoub, who is the applicant with respect to a suppression order pursuant to s 7 of the Courts Suppression and Non-Publication Act 2010 (NSW) (“CSNPO Act”), confessed to having committed an offence of sexual assault in 2002. His admissions relate to an incident in 2002 with respect to which the defendant has already appeared before the court, having been convicted and sentenced in 2008 for offences of indecent assault contrary to s 61K of the Crimes Act 1900 (NSW), and using a stupefying drug with intent to commit an indictable offence, namely, indecent assault, contrary to s 38 of the Crimes Act (in the form in which the section was in 2002). These offences bear the charging reference H15664473. A brief summary of the offences dealt with in 2008 was given by McNaughton J in State of New South Wales v Ayoub (Preliminary) [2023] NSWSC 479, at [10]-[14]:

“First prior sexual offence

[…] The first sexual offence conviction was in 2008 for an offence which occurred when the defendant was aged 24. He was convicted of indecent assault contrary to s 61L of the Crimes Act and using chloroform etc to commit an indictable offence, namely indecent assault contrary to s 38 of the Crimes Act.

The offending related to events in 2002, when the defendant drugged his roommate's girlfriend with Clonazepam (a benzodiazepine) and committed an indecent assault upon her. The act of indecency which was relied on by the Crown in that matter was the removal of the victim's pants and the massaging of her upper legs. The victim did not have an independent recollection of what happened after that. She was suspicious, however, that she had been drugged by the defendant and following conversations with others she attended a medical centre and a urine sample was taken which revealed the presence of benzodiazepines. Further tests at a hospital showed the presence of Clonazepam, and that drug was the stupefying agent which was the subject of the s 38 charge.

The victim reported the matter to police on 15 October 2002. The defendant was arrested on 17 October 2002 and participated in an Electronically Recorded Interview of a Suspected Person (ERISP).  The defendant was released on conditional bail.  He admitted to masturbating in front of the victim to ejaculation, such that semen ended up on the pants of the victim and the boxer shorts.  He failed to appear at the Local Court in April 2003 and a warrant was issued for his arrest.  He was not arrested until 25 April 2007.  He asserted that at the time of the offending, he had been using drugs and alcohol for several days with friends.  He claimed not to remember the details of events, though later acknowledged having committed the offences and expressed remorse.

Because the maximum penalty of the indecent assault (pursuant to s 61L of the Crimes Act) was five years imprisonment, it is not a serious offence for the purposes of the Act. The maximum penalty for the s 38 offence was 25 years imprisonment. That can constitute a serious sexual offence, but only when the offence intended to be committed following the administration of the stupefying agent is one under Div 10 of Pt 3 of the Crimes Act punishable by more than 7 years. Accordingly, the s 38 offence committed by the defendant was not a serious offence for the purposes of the Act.

In relation to the s 38 offence, the defendant was sentenced to a total term of 4 years’ imprisonment with a non‑parole period of 2 years and 6 months. He was sentenced to a term of imprisonment of 12 months with a non‑parole period of 8 months for the s 61L offence, and both sentences were to be served concurrently.”

2. In his admissions to Dr Calum Smith, Forensic Psychiatrist, and Dr Carollyne Youssef, Forensic Psychologist, the defendant acknowledged that which he had previously concealed: that, after his victim had been rendered compliant by the secret administration to her of a benzodiazepine, he had sexual intercourse with her, at a time when she could neither consent nor resist because of the effects of the drug she had been unknowingly given. The defendant’s admissions expose him to the possibility of a criminal charge being brought against him, perhaps for an offence contrary to s 61I of the Crimes Act (as then in force); or to civil proceedings for damages.

3. At the hearing before me on 28 July 2023 of the State’s application for the imposition of an order for the defendant’s extended supervision pursuant to ss 5B and 9(1)(a) of the CHRO Act, the defendant filed in court, with leave, a Notice of Motion in which he sought an order suppressing publication of his admissions to the two doctors, and ancillary orders, as follows:

1. This Notice of Motion be returnable on 28 July 2023.

2. Pursuant to s 7 of the Court Suppression and Non Publication Orders Act 2010 (NSW) (the CSNPO Act), that the following information {the information) be suppressed, namely:

3. Any reference, including evidence, submission, discussion, document or information, to the purported admission made by the defendant to Dr Carollyne Youseff on 7 June 2023 and to Dr Calum Smith on 14 June 2023, to having sexual intercourse with the victim of proceedings H15664473

4. on the following grounds:

5. I. the order is necessary to prevent prejudice to the proper administration of justice: s 8(a) of the CSNPO Act;

6. II. II. the order is otherwise necessary in the public interest and that public interest significantly outweighs the public interest in open justice: s 8(e) of the CSNPO Act.

7. Disclosure of the information is permissible in accordance with section 25D of the Crimes (High Risk Offenders) Act 2006.

8. Pursuant to s 11(2) of the CSNPO, the foregoing order (namely order 2), is to apply throughout the Commonwealth of Australia.

9. Pursuant to s 12(1) of the CSNPO, orders 2 and 3 are to operate for a period of 40 years.

10. Such further order or orders as the Court sees fit.

4. As the State did not have finalised instructions on the application, and the matter is not without its complexities, a timetable was made for the parties to file and serve written submissions. An interim suppression order was made, pursuant to s 10(1) of the CSNPO Act. Section 10(2) of the Act requires the Court to determine the application as a matter of urgency. Having now filed submissions, the parties are content for the application to be determined on the papers.

The Circumstances of the Admissions

5. On 5 May 2023, after having heard the State’s application for preliminary orders under the CHRO Act, McNaughton J made the following orders:

An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW):

Appointing two qualified psychiatrist or psychologists (or any combination of two such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

Directing the defendant to attend those examinations.

6. Her Honour also made an order subjecting the defendant to an interim supervision order under that Act.

7. On 7 June 2023, the defendant was assessed by Dr Youssef, one of the two experts who was appointed by the Court to examine him and provide a report on the results of the examination. As part of her assessment, Dr Youssef discussed with the defendant his prior sexual offending. In the context of discussing the 2002 offences of which he had been convicted, the defendant admitted having committed a further, uncharged, offence. Dr Youssef recorded the conversation in the following terms in her report of 27 June 2023:

“He said once he had given her the drinks, he “asked her if she wanted to have sex and she said yes, so we did”. Mr Ayoub was asked several clarifying questions to ensure he was referring to this offence and he confirmed that after he provided her with the drink, “we had sex … just normal [penile-vaginal] nothing else … its very bad, I didn’t realise [you remember nothing] … you think you’re talking to someone but they’re not really there … she was conscious, but just no memory.”

8. Dr Smith saw the defendant on 14 June 2023 and conducted an assessment. During the assessment, when discussing the 2002 offences, the defendant made an admission with respect to that incident. In his report of 28 June 2023 Dr Smith said:

“I asked Mr Ayoub whether he had done it before. He stated that “never done it before, and never did it again.” I asked what the sexual things that happened were “a massage and normal sex … that was it.”

The Application for a Suppression Order

9. The defendant asks the Court to suppress any publication of the admissions he is said to have made to Drs Youssef and Smith. He argues that, if the information is not suppressed, he will be exposed to the prospect of serious criminal or civil proceedings being brought against him in circumstances where the evidence that could be presented against him was obtained through his participation in a compulsory assessment under the CHRO Act. He contends that it is in the public interest to encourage offenders to engage honestly with Court appointed experts, and that open engagement in the assessment process, necessary for the proper operation of the Act, could be placed in jeopardy if offenders suffer a penalty for their cooperation.

10. The State opposes orders made in the terms sought, submitting that it is not clear the proposed orders are necessary, and that they are, in any event, overly wide. The State submits that there is scope for protective orders within the structure of the CHRO Act which may be adequate for present purposes.

11. That very short summary of the respective positions of the parties does not do justice to the comprehensive and thoughtful submissions filed, or adequately recognise the assistance provided by counsel to the Court, for which I express the Court’s gratitude. I will refer further to the submissions made when discussing the issues to be considered in determining the application.

The Statutory Framework

12. The defendant’s application falls to be assessed within the statutory framework of the CSNPO Act, having regard to the relevant provisions of the CHRO Act, which continue to have application: s 5 CSNPO Act. Section 6 of the CSNPO Act provides for a fundamental principle against which all applications for orders under the Act are to be determined:

“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.”

13. The Court’s power to make an order is found at s 7. Section 8 provides the grounds upon which an order may be made:

“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.”

14. The defendant’s application contends that s 8(1)(a) and s 8(1)(e) provide the relevant grounds. An order made pursuant to either subsection can only be made if it is “necessary” to do so to protect the interest referred to in each provision. Always bearing in mind the operation of s 6, the word “necessary” imposes a high threshold to be met before the important principle of open justice can be intruded upon. In Rinehart v Welker (2011) 1993 NSWLR 311; [2011] NSWCA 403, at [27]-[29], Bathurst CJ and McColl JA said:

“The operative condition for making a suppression order under s 8 of the CSPO Act is that it be "necessary" to do so, which "... is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice ...'suggests Parliament was not dealing with trivialities'": Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commission were made in relation to a legislative scheme which, while it required the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act ) did not contain a provision in like terms to s 6 of the CSPO Act. That provision, in our view, reinforces the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd v District Court of NSW (at [21]).

[…]

A number of authorities are cited in the Discussion Paper (at [10.92]) as authority for the proposition that the test for making a suppression or non-publication order should be that it be "necessary". Of those authorities, the clearest statement, and that which appears to underlie the form of s 8, appears in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 (at 476 - 477) per McHugh JA (Glass JA agreeing):

"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. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient." (Emphasis added).”

15. It has been stated that the word "necessary" is used to describe the connection between the proposed order and an identified purpose”: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125, per Basten JA at [46] (“Ibrahim”). It is not to be construed narrowly, and much will depend upon the context in which the order is considered: Ibrahim at [8] per Bathurst CJ.

Relevant Provisions of the CHRO Act

16. As the State pointed out in its helpful submissions there is some statutory protection that applies to the information the defendant seeks to have suppressed. Section 25D of the Act is in these terms:

“25D   Disclosure and use of application documentation

(1)  In this section—

disclose an expert report includes the following—

(a)  to make available,

(b)  to disclose copies, contents or descriptions of the report.

expert report concerning an offender means a report prepared as referred to in section 6 (3) or 14 (3), or received from persons appointed under section 7 (4) or 15 (4), concerning an offender who is the subject of an application for an extended supervision order or continuing detention order.

use of an expert report includes use of copies, contents or descriptions of that report.

(2)  The State may disclose an expert report concerning an offender—

(a)  to a corrective services officer or any other person responsible for the supervision (whether in custody or in the community), treatment or risk assessment of the offender for use solely in providing rehabilitation, care or treatment of the offender, and

(b)  to any person in connection with the exercise of the person’s functions under this Act.

(3)  An expert report concerning an offender may be disclosed and used in any proceedings in respect of the offender if the court determines that—

(a) the proceedings are closely related to the proceedings under section 7 or 15 in which the expert report was used, and

(b)  it is in the public interest, and

(c)  the information would inform the court about the history of the offender’s mental state with respect to his or her offending.

(4)  The disclosure and use of an expert report for a purpose referred to in subsection (2) or (3) is permitted despite this Act or any other law to the contrary or any duty of confidentiality concerning the expert report.

(5)  This section does not authorise the further disclosure of an expert report by the person to whom it was disclosed in accordance with this section.”

17. As can be seen from the section, the circumstances in which there can be disclosure of an expert report that was prepared at the request of the Court pursuant to s 7(4) of the Act are limited. The operation of the section restricts disclosure to corrective services officers involved with the supervision, care or rehabilitation of the offender, or to a person exercising functions under the Act. If the Court is satisfied of those things set out in s 25D(3), further disclosure may be permitted. The limitations on disclosure apply to expert reports themselves, but also to the contents of the report.

17. Having regard to the terms of s 25D, it is unlikely that the reports of Drs Smith or Youssef, and thus the admissions, would become known to anyone beyond staff of the High Risk Offender Team, any clinician or other professional that the defendant was required to consult to advance his treatment and rehabilitation, and those directly involved in the HRO proceedings.

18. If the information is not able to be disclosed under the Act to police or the complainant, the prospect of any criminal or civil prosecution must be low.

19. Whilst the State raised an issue as to the possible legal obligation upon the experts or other persons who become aware of the relevant content of the expert reports arising pursuant to s 316 of the Crimes Act, potentially defeating any suppression order, I do not see that as an issue of real concern, or as operating to counter any suppression order, or the operation of s 25D of the CHRO Act.

20. Section 316 creates an offence of concealing, or failing to disclose, a serious crime. It is (relevantly) in these terms:

“316   Concealing serious indictable offence

(1)  An adult—

(a)  who knows or believes that a serious indictable offence has been committed by another person, and

(b)  who knows or believes that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and

(c)  who fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force or other appropriate authority,

is guilty of an offence.

Maximum penalty—Imprisonment for—

(a)  2 years—if the maximum penalty for the serious indictable offence is not more than 10 years imprisonment, or

(b)  3 years—if the maximum penalty for the serious indictable offence is more than 10 years imprisonment but not more than 20 years imprisonment, or

(c)  5 years—if the maximum penalty for the serious indictable offence is more than 20 years imprisonment.

(1A)  For the purposes of subsection (1), a person has a reasonable excuse for failing to bring information to the attention of a member of the NSW Police Force or other appropriate authority if—

(a)  the information relates to a sexual offence or a domestic violence offence against a person (the alleged victim), and

(b)  the alleged victim was an adult at the time the information was obtained by the person, and

(c)  the person believes on reasonable grounds that the alleged victim does not wish the information to be reported to police or another appropriate authority.

(1B)  Subsection (1A) does not limit the grounds on which it may be established that a person has a reasonable excuse for failing to bring information to the attention of a member of the NSW Police Force or other appropriate authority.

(2)  […] A person who solicits, accepts or agrees to accept any benefit for the person or any other person in consideration for doing anything that would be an offence under subsection (1) is guilty of an offence.

(3)  […]

(4)  A prosecution for an offence against subsection (1) is not to be commenced against a person without the approval of the Director of Public Prosecutions if the knowledge or belief that an offence has been committed was formed or the information referred to in the subsection was obtained by the person in the course of practising or following a profession, calling or vocation prescribed by the regulations for the purposes of this subsection.

(5)  The regulations may prescribe a profession, calling or vocation as referred to in subsection (4).

(6)  […].”

22. Clause 4(b) and (c) of the Crimes Regulation 2020 (NSW) prescribes a medical practitioner and a psychologist respectively, for the purposes of s 316(5) of the Crimes Act.

23. Drs Smith and Youssef were asked by the Court to carry out an assessment of the defendant and report their respective conclusions; each did so. There could be no sound reason to conclude that, even if either expert could be said to have the requisite “knowledge or belief” of the commission of a serious indictable offence based only upon what each was told by the defendant, bringing the information to the attention of the Court would likely be regarded as an adequate discharge of the obligation created by s 316(1)(c). The experts have the further protection of the operation of s 316(4), which would prevent any prosecution from being commenced without the approval of the Director of Public Prosecutions. It must be at least highly unlikely that the Director would approve the commencement of a prosecution in the circumstances that pertain here.

24. Whilst others who might later receive an account of what was said by the defendant to the experts may not have the benefit of s 316(4), such a hearsay account would be unlikely to be sufficient to establish to the criminal standard the element of knowledge or belief for the prosecution of a s 316 offence. Even if it did, there must be a real doubt as to whether the element created by s 316(1)(c) could be made out by the prosecuting authority in circumstances where those who received the information could point to the reports made to the Court, arguably an “appropriate authority”, by Drs Youssef and Smith, as adequately disclosing the admissions made by the defendant.

25. In short, I think it is most unlikely that s 316 of the Crimes Act operates in such a way as to defeat the operation of s 25D of the CHRO Act, or any suppression order that the Court might make. The section is unlikely to create a positive obligation on Drs Youssef or Smith, or any other person who becomes aware of the defendant’s admissions whilst exercising a function under the CHRO Act.

Consideration

26. It is important to be clear about the bases for any order suppressing the relevant information, being that the order is necessary to prevent prejudice to the proper administration of justice, and necessary in the public interest. The defendant relies upon the potential chilling effect upon persons subject to applications for an order under the CHRO Act, arguing that, if defendants in such proceedings are seen to be seriously disadvantaged, or placed at risk of serious disadvantage, by their co-operation with the mandatory assessment and other processes, such persons are less likely to be open and truthful with experts and treating clinicians, to the community’s detriment. The argument is that the risk assessment procedure necessary for the proper determination of an application under the Act for either a supervision order or a detention order, and, if such an order is made, the treatment process for any offender will be prejudiced if defendants are not honest in their dealings with experts and clinicians. The honest and open cooperation of defendants will be placed in jeopardy if the result of that honesty and openness could be criminal or civil prosecution for a previously undisclosed crime.

27. That this would be the outcome or likely outcome of declining to make the order the defendant seeks suppressing the information concerning the admissions he made to Drs Youssef and Smith is, however, far from clear. There are a number of features to be considered.

28. The ordinary operation of s 25D of the CHRO Act protects the confidentiality of the information given by the defendant to the experts, except in relatively limited circumstances. Those circumstances do not appear to include disclosure to NSW Police of the admissions by the defendant to an uncharged criminal offence, at least without an order from the Court pursuant to s 25D(3). If an application was made for such an order, the defendant would have an opportunity to be heard, and the Court would assess whether those considerations referred to in s 25D(3)(a)-(c) had been established.

29. Further, even if an order was made to permit the release of the expert reports and, as a consequence, the defendant’s admissions became known to investigating or prosecuting authorities, it is not certain that the defendant could or would face a further charge as a consequence of his admissions. Three considerations arise.

30. There is firstly the question of whether a defence of autrefois acquit applies. The State noted that the defendant was charged with an offence of sexual assault reflecting an allegation of sexual intercourse without consent at the time of the original proceedings for the 2002 offences. That charge was marked “Withdrawn and dismissed” on the defendant’s criminal history: Ex JVL1.1. Necessarily, that must have been the endorsement against that charge on the Bench papers. Perhaps the fact that a charge of that nature did not proceed might pose a barrier to a prosecution, although, without more information concerning the withdrawal of the charge, it seems highly doubtful. An outcome noted on Local Court Bench papers as “Withdrawn and dismissed” ordinarily denotes no more than that the prosecuting authority had withdrawn the charge, and the court, notionally, dismissed it. Technically, the purported order of “dismissal” is a nullity since, the charge having been withdrawn, it could not be dismissed. The endorsement was and is, however, a very common one.

31. An outcome of that nature against a criminal charge does not involve any final determination by a court of the guilt or otherwise of the defendant. It is to be distinguished from a dismissal recorded after a hearing on the merits, which would provide a plea in bar of autrefois acquit. The doctrine of autrefois acquit and autrefois convict has been discussed in many decisions, including Wemyss v Hopkins (1875) LR 10 QB 378 at 381; Griffiths v The Queen (1977) 137 CLR 293; Saraswati v The Queen (1991) 172 CLR 1; Richards v The Queen [1993] AC 217; and Regina v Stone 157 A Crim R 41; [2005] NSWCCA 344, to refer to but a few. The pleas have been preserved by s 156 of the Criminal Procedure Act 1999 (NSW).

32. Whilst the operation of the doctrine of autrefois is not always without complexity, in my assessment neither plea in bar could apply to the circumstances of this matter. As to autrefois acquit, the withdrawal of a criminal charge does not involve any determination by a court on the merits of the evidence, and no acquittal was entered against the charge of sexual intercourse without consent. With respect to autrefois convict, although the defendant was convicted of and sentenced for a related indecent assault, the elements of that offence are not included as part of the elements of an offence of sexual intercourse without consent, and the act relied upon is different to the act relied upon to establish the offence of indecent assault. The defendant’s conviction for the related s 61L offence would not prevent a prosecution for an offence contrary to the then s 61I of the Crimes Act.

33. The second consideration is the possibility that the proceedings under the CHRO Act intruded upon the defendant’s privilege against self-incrimination or, alternatively, whether his participation in the assessment process constituted a waiver of that privilege. The defendant argues that his rights were impeded by his participation in the assessment process; the State submits that it is unlikely that it does infringe upon the defendant’s rights in that regard. If the defendant’s position is the correct one it is likely that, were there to be a prosecution, any trial court would exclude the evidence of the admissions. Alternatively, there may be a basis upon which to seek a permanent stay of proceedings.

34. Whilst accepting that the CHRO Act encourages participation by defendants in the process of risk assessment, there is nothing in the Act that mandates it, or mandates it to the extent of abrogating the privilege against self-incrimination. Section 7(4)(b) of the Act requires the Supreme Court to make an order directing the defendant to attend examinations by the relevant qualified practitioners if satisfied, following the preliminary hearing, that “the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order”. There is no power in the Court to direct a defendant to answer all questions put to him or her fully and truthfully, although any failure to cooperate is a matter relevant to the Court’s determination of any application for an order under the Act. Section 9(3)(b) of the Act requires the Court to have regard to “the level of the offender’s participation” in any expert examination carried out at its request. Where the offender’s participation was restricted only by the assertion of the right to silence with respect to uncharged criminal conduct, it is most dubious that any court would take that into account in any way adverse to the offender. The privilege is, after all, a cornerstone of our criminal justice system.

35. As the State pointed out in its submissions, there are other pieces of legislation that do abrogate the privilege but, where that is so, there are also statutory protections over the derivative use of any incriminating information provided. For example, Subdivision 7 of Division 3 of Part 8 of the Health Practitioner Regulation National Law2009 (NSW) both empowers the Medical Council to compel the appearance of a person before it to answer questions (s 150J) but also provides that the recording of the proceedings is not admissible in any civil or criminal proceedings (s 150B). Sections 21A and 34A of the Health Care Complaints Act 1993 (NSW) provide wide ranging powers to the Health Care Complaints Commission to compel a person to answer questions or produce documents, but also provides, by s 37A(2), that where objection is taken because of the possibility that the required information would incriminate the person, the information cannot be used against the person in any later civil or criminal proceedings. Similarly, in the Crime Commission Act 2012 (NSW) there are powers to compel a witness to produce a document or thing, to take an oath or affirmation, and to answer questions asked at any hearing (ss 24 and 25); with corresponding provisions precluding the derivative use of any incriminating evidence obtained under compulsion (s 39A).

36. There is no power comparable to these in the CHRO Act to compel a defendant to answer questions that might incriminate him or her. Whilst the Court’s power to direct a defendant to attend such examinations, and the requirement for the Court to consider the reports produced as a consequence of such examinations being held and the defendant’s level of participation therein, points to the importance of a defendant’s cooperation with the process, a defendant cannot be directed under the Act to answer questions posed as part of the examination process. That militates in favour of a conclusion that the right to silence and the privilege against self-incrimination are unaffected by the operation of the CHRO Act. If the Act intended to affect those rights, it is likely that there would be a clear statement to that effect: X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, at [86].

37. In my opinion, a direction under s 7(4) of the CHRO Act to attend an assessment by a court appointed expert does not of itself abrogate the offender’s right to silence or his or her privilege against self-incrimination. Thus, it is not certain that the information obtained by the experts during the assessments of the defendant would be prima facie inadmissible in any civil or criminal proceeding.

38. That conclusion does not, however, affect the powers of a court to exclude the evidence on a discretionary basis, including discretionary exclusion pursuant to s 90 of the Evidence Act 1995 (NSW), and there is at least some authority to suggest a basis for the evidence of the defendant’s admissions to be excluded in that way. In Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56 at [14] per Brennan J, it was held that where a person discloses information in response to an exercise of statutory power, the extent of the dissemination of the information obtained will be limited by the purpose for which the power was conferred.

39. Any potential criminal or civil prosecution of the defendant that relied upon the information obtained during the course of the expert examination of him under the CHRO Act would have to consider the possibility that the evidence would be excluded, at least on the basis that the limiting principle referred to in Johns would apply.

40. The final feature relevant to the potential commencement of any prosecution, civil or criminal, is the discretion that applies to the person or agency considering such action, having regard to the uncertainty as to the admissibility of the only evidence of the defendant’s commission of a sexual assault, the admissions to Drs Youssef and Smith.

41. Having regard to those features, it must be unlikely that any criminal or civil prosecution would be commenced against the defendant.

42. The question of any adverse impact on the administration of the CHRO Act if no suppression order is made remains. Can it be said that the willingness of defendants to cooperate with the processes under the Act of assessment, supervision, treatment, and rehabilitation will be adversely affected by awareness that admissions to an uncharged criminal act or an actionable civil wrong will or may not be protected by the law? Although it is acknowledged that, as the defendant submits, that is a possible outcome of declining to make a suppression order with respect to the admissions he has made to Drs Youssef and Smith, ultimately I am not persuaded that that is a prospect which will be more likely that not if no order is made.

43. The focus of the operation of the CHRO Act is, for obvious reasons, on known past criminal conduct. The Act has no investigative purpose; it is not the role of those exercising functions under the Act to ascertain if an offender has committed crimes other than those known to the authorities. As in this instance, defendants are not asked to reveal details of any unknown offending but rather, to discuss matters that have resulted in a conviction or convictions. It must be, at least, unlikely that offenders will disclose information concerning previously unknown criminal conduct, and so the risk of an individual facing sanction because of an admission made during assessment or treatment under the Act will be correspondingly low.

44. On that analysis, were no suppression order made with respect to the admissions made by the defendant, there would be little prospect of a widespread adverse impact upon the operation of the CHRO Act.

Can an Order be Said to be Necessary?

45. If the prospects of the information the defendant gave to the court appointed experts concerning his conduct in 2002 being known more widely than in accordance with s 25D of the CHRO Act are low, and the chances of any prosecution being commenced against the defendant are correspondingly low as I conclude they are, the necessity of making a suppression order must be called into question. That is particularly so when s 6 of the CSNPO Act and the common law principle of open justice are borne in mind.

46. The prospect of any adverse consequence to the defendant of his disclosure to the court appointed experts is very low in my assessment. If that is correct, the prospect of a widespread chilling affect on the willingness of other offenders to be open and truthful with those clinicians exercising functions under the CHRO Act is also very low. The public interest in open justice, to the extent the CHRO Act allows it, must prevail.

47. The question that remains is the extent to which, if at all, relevant portions of the submissions of the parties, the transcript, and the Court’s judgments, should be subject to any orders restricting publication of or access to the admissions recorded in the expert reports.

48. Giving due weight to the principle of open justice, I am not persuaded that an order suppressing publication is necessary.

45. The Court’s only concern in that regard is the possibility that the victim of the 2002 offences could be informed of the true nature of what was done to her by reading a judgment of the Court. Victims of crime may receive information concerning the fate of relevant offenders through NSW Corrective Services. If the victim of the 2002 offences is a person routinely advised of matters connected with the defendant’s imprisonment or conditional release, it is possible that she could come to learn of the defendant’s admissions to having sexually assaulted her by reading a public judgment of the Court. I am concerned that she does not receive such distressing information in that way.

46. For that reason, the vacation of the interim non-publication order will be briefly delayed to enable the State to consider whether any further order should be made in that regard.

ORDERS

51. The orders of the Court are:

1. The interim suppression and non-publication order made on 28 July 2023 will be vacated, this order taking effect at 4pm on 29 September 2023.

2. No order as to costs.

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Decision last updated: 20 September 2024