State of New South Wales v Bowdidge (No 2) (Application by Nationwide News Pty Ltd)

[2020] NSWSC 159

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Bowdidge (No 2) (Application by Nationwide News Pty Ltd) [2020] NSWSC 159
Hearing dates:	18 February 2020
Date of orders:	03 March 2020
Decision date:	03 March 2020
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	(1) Order (3) made on 19 December 2019 is varied so as to allow Lucy Hughes-Jones, a journalist employed by Nationwide News Pty Ltd, to have access (including photocopying access) to the following documents: (a)   The written submissions of the plaintiff filed 7 November 2019, (b)   The written submissions of the defendant filed 25 November 2019, (c)   The plaintiff’s written submissions in reply filed 5 December 2019, and (d)   The transcript of proceedings of 12 December 2019. (2) The plaintiff and the defendant to the primary proceedings may first have access to the documents to determine whether any redactions are appropriate.
Catchwords:	CIVIL LAW – high risk offender proceedings – riddled with acronyms – media application to access file – where documents tendered in open court – where order made restricting access – exercise of discretion – reports of experts and risk assessment reports – where offender obliged to attend appointments – desirability of high risk offenders providing honest history – where reports and evidence not subject to challenge or scrutiny – written submissions of parties – comprehensive summary of material – past media coverage – click-bait – open justice – highfalutin observations – exceptional case – middle course steered
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Practice Note SC Gen 2
Cases Cited:	Attorney General of New South Wales v Kereopa (No 3) [2017] NSWSC 929 Attorney-General for NSW v Nationwide News Pty Ltd (2007) 73 NSWLR 635; [2007] NSWCCA 307 Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 3) [2002] FCA 609 Ewert v Canada [2018] 2 SCR 165 Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 John Fairfax Publication Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 Nationwide News Pty Limited v Qaumi [2016] NSWCCA 97 New South Wales v Brian Alan Bowdidge [2015] NSWSC 717 R v Dirani (No 33) [2019] NSWSC 288 R v Qaumi & Ors (No 15) (Non-publication order) [2016] NSWSC 318 Rinehart v Welker [2011] NSWCA 403 State of New South Wales v Bowdidge [2018] NSWSC 1615 State of New South Wales v Bowdidge [2019] NSWSC 1843 State of New South Wales v Brian Bowdidge [2019] NSWSC 85 State of New South Wales v Holschier (No 4) [2019] NSWSC 393 State of New South Wales v Reed [2011] NSWSC 981 State of New South Wales v Wainwright (Preliminary) [2019] NSWSC 1603 State of NSW v Kay [2017] NSWSC 274
Category:	Consequential orders (other than Costs)
Parties:	State of New South Wales (Plaintiff) Nationwide News Pty Ltd (Applicant) Brian Alan Bowdidge (Defendant)
Representation:	Counsel: A. Hughes (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) G. McWilliams (Applicant) Legal Aid Commission NSW (Defendant)
File Number(s):	2019/00211627
Publication restriction:	Nil

Judgment

1. HAMILL J: Nationwide News Pty Ltd (the applicant) seeks access to a Court file in relation to proceedings under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) which resulted in the imposition of a four year extended supervision order (“ESO”): State of New South Wales v Bowdidge [2019] NSWSC 1843 (the primary proceedings). The Court’s Media Liaison Officer was notified of the application by a journalist of The Daily Telegraph (Ms Hughes-Jones) shortly after I made the orders on 19 December 2019. The application was reduced to writing in a form approved by the Court. The orders made in the primary proceedings included an order restricting access to the Court file. Similar orders are customarily made in cases involving high-risk offenders to protect the private information and details of people referred to in the voluminous material tendered in such applications. This can include the information of the victim or victims of the defendant, as well as friends, relatives and associates of the defendant and the defendant themselves.

2. There appears to be no particular statutory basis for orders restricting access to the Court file in cases decided under the Act but it has become the regular, if not routine, practice of the Judges of the Court to make similar orders at the conclusion of the proceedings. Generally, as in the present case, the parties to the proceedings under the Act are given the opportunity to be heard when a third party applies to access the Court file. The order relevant to the present application was made after the imposition of the most recent ESO and is in the following terms:

"Access to the Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.”

3. The present application for access to the Court file was limited to three categories of documents namely: [1]

1. Submissions from the plaintiff and defendant.

2. Risk assessments.

3. Court ordered reports by Dr Furst and Dr Lennings.

   1. See the written application to access the file.

4. The application for these documents was based on evidence referred to, but not set out in great detail, in the judgment delivered on 19 December 2019. There are at least four documents in the file that fit the description of “risk assessment”. Two of these were prepared for and in advance of the hearing in December last year, while two are dated October 2018 and appear to relate to proceedings that took place toward the end of 2018 and at the beginning of 2019: State of New South Wales v Bowdidge [2018] NSWSC 1615 and State of New South Wales v Brian Bowdidge [2019] NSWSC 85. There are two court ordered reports made by Dr Furst, one of which relates to proceedings in 2015 in which I (by coincidence) made an earlier extended supervision order: New South Wales v Brian Alan Bowdidge [2015] NSWSC 717. There was also an additional court ordered report made by Dr Lennings dated 21 October 2019.

5. Upon receipt of the application for access to the file, the Registrar notified the parties. The plaintiff to the primary proceedings – that is, the State of New South Wales – took a neutral stance in relation to the application. At the hearing of the application, the State indicated that if access was granted it would make redactions to relevant documents in order to protect the privacy of victims and other persons named in the documents. Mr Bowdidge indicated that he objected to access being granted and sought to be heard. Accordingly, the matter was listed for hearing a fortnight ago. Ms McWilliams, Senior Legal Counsel for the applicant and Mr Hughes of Counsel, who appears for the defendant, provided helpful written submissions in advance of the hearing. Ms McWilliams handed up written submissions in reply at the commencement of the hearing.

6. The parties agreed they were not greatly at odds in terms of the applicable legal principles. There are some, but not many, cases in which various Judges of this Court have considered similar applications: see, for example, State of New South Wales v Reed [2011] NSWSC 981 (McCallum J, as her Honour then was) and State of New South Wales v Holschier (No 4) [2019] NSWSC 393 (Campbell J). Other cases concerning access to Court files and orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) were also referred to by the lawyers on each side: see, for example, State of NSW v Kay [2017] NSWSC 274 (Harrison J), Attorney General of New South Wales v Kereopa (No 3) [2017] NSWSC 929 (R A Hulme J), R v Dirani (No 33) [2019] NSWSC 288 (Johnson J) and Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 3) [2002] FCA 609 (Finkelstein J).

7. The decision whether to grant access to a third party involves the exercise of a broad discretion, the factors relevant to which will vary from case to case and depend on the individual circumstances of each application. On the submissions of both parties, on which I proceed, the nature of this discretion can be distinguished from the exercise of judicial power involved in cases concerning suppression and non-publication orders, applications to close the court or conduct proceedings in camera, and matters where a party seeks to hide the identity of witnesses. In those sorts of cases, whether decided at common law or pursuant to relevant legislation, there is a test of “necessity”: see, for example, Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21, John Fairfax Publication Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324, Attorney-General for NSW v Nationwide NewsPty Ltd (2007) 73 NSWLR 635; [2007] NSWCCA 307, Rinehart v Welker [2011] NSWCA 403 and Nationwide News Pty Limited v Qaumi [2016] NSWCCA 97 upholding R v Qaumi & Ors (No 15) (Non-publication order) [2016] NSWSC 318.

8. In the course of submissions, Ms McWilliams accepted that the test of necessity did not apply to the present proceedings. [2] That is, it was not submitted that Mr Bowdidge was required to establish that it was necessary in the interests of justice (or otherwise) to restrict access to the Court file. I am prepared to accept that concession.

   2. Transcript p 6.

9. In any event, the overarching legal principle is the principle of open justice. The documents were tendered in evidence or marked for identification and played an important part in my decision making. The judgment was relatively brief and an understanding of its reasoning would be enhanced by knowledge of the detail of the documents to which access is sought.

10. There is a Supreme Court Practice Note concerning the circumstances in which non-parties might gain access to the files of the Court of Appeal, Court of Criminal Appeal and each of the Divisions of the Supreme Court: Practice Note SC Gen 2. The purpose of the Practice Note, as stated in clause 4, is to prescribe procedures surrounding the provision of access to Court files. The Practice Note does not provide any binding or fettering guideline as to the exercise of the relevant discretion. However, it does indicate when Court files will ordinarily be made available to non-parties. Clause 7 is in the following terms:

Access will normally be granted to non-parties in respect of:

• pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential;

• documents that record what was said or done in open court;

• material that was admitted into evidence; and

• information that would have been heard or seen by any person present in open court,

unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist.

11. If the third dot point in clause 7 was applied strictly, access to the material tendered in evidence in open court would "normally" be granted. In the present case, that would include the material in the Court ordered reports and the risk assessment and risk management reports but would not include the written submissions of the parties. The absence of a reference to written submissions specifically may be a glitch or omission in the Practice Note.

12. It is difficult to justify or understand any legal or practical distinction between material tendered as an exhibit and written submissions marked for identification. While one is evidence and the other is not, each plays an important role in the decision making process and elucidates the reasons contained in the judgment. I can see no reason why written submissions provided to the Judge in open court would not generally be made available to a third party in the absence of countervailing considerations. Such written submissions are referred to, often obliquely, in the oral arguments which can be heard by anybody present in the Court at the time the case is heard. Apart from the fact that they are not evidence, written submissions are in the same position as the evidence tendered in documentary form. In the mind of the decision maker, the written submissions are a critical adjunct to the oral submissions. This conclusion accords with the observations of McCallum J (as her Honour then was) in State of New South Wales v Reed (supra) at [10].

13. There is authority supporting the proposition that “where proceedings are decided largely on the basis of documents filed by the parties, non-party access should be granted to the documents taken into account by the decision maker in order to preserve open justice”:[3] see State of NSW v Kay [2017] NSWSC 274; State of New South Wales v Holschier (No 4) [2019] NSWSC 393. In Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 3) [2002] FCA 609 at [7], Finkelstein J made the following observation:

“The question that I must resolve is what principle should be applied when deciding whether to allow inspection in cases where leave is required.  In giving the answer I propose to confine myself to those cases where a non-party seeks access to material which has been relied upon by the judge.  In such a case I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course.  It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved.  Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence.  Inspection should only be refused in exceptional circumstances.  I think that the position is a fortiori when the material has been read by the judge in private and is not read out in court.  If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties.  That is an unacceptable position.”

3. Applicant’s Submissions in Reply at [1].

14. These observations are generally correct, although I do not need to determine whether “exceptional circumstances” must be established before access is denied to material tendered in open court. The fact that evidence is tendered in documentary form means that the public or the media sitting in the courtroom will not be fully apprised of the content and detail of the evidence. Accordingly, in the ordinary case and in conformity with the Practice Note, such evidence would be made available to non-parties who seek to inspect the documents maintained in the Court file. That is the correct application of the principle of open justice to the particular circumstances of any given case. I accept that clause 7 of the Practice Note and the proper application of relevant legal principles will, in most cases, lead to access being granted to material on the Court file which has been tendered in open court. I consider that observation extends not only to the evidence but also to any written submissions.

15. However, these observations or rules are not absolute or prescriptive. In some cases, and this is one of them, there are strong countervailing considerations.

16. The exercise of discretion must be guided by the fundamental importance of the principle that our courts are open to the public and to the media. By reporting and commenting on court cases of public interest and the decisions of the judges who decide those cases, the media plays an important role in allowing the public to be informed and capable of scrutinising and criticising those decisions. That role may be hampered if journalists are denied access to material tendered in open court that informed the judge’s decision making. Scrutiny of judicial decision making is critical to a healthy and functioning democratic society. Such observations, which may seem trite to some and highfalutin or pompous to others, lie at the heart of cases going back to Scott v Scott [1913] AC 417, including the cases referred to at [7] and many others. It is no answer to these fundamental concepts to complain about the quality of court reporting generally or in the particular case, to assert that the media is using the tragic and salacious facts of a court case as “entertainment” [4] or click-bait. Nor is it an answer that publication of the material may cause embarrassment to one or more of the parties or to third parties.

    4. Cf the observations of Johnson J in Dirani (No 33) which were made in a completely different context.

17. In a case such as the present, it is also important to consider the right of members of the public to be fully informed and perhaps, as Harrison J said in State of NSW v Kay (supra) at [31], “to be able to take such steps in their own lives as may appear to be necessary to protect themselves.” His Honour’s observations accord with the primary purpose of the Act: s 3(1). However, in view of the amount of information already published and available to the media and the public, it is difficult to see how providing access to the Court file will greatly, if at all, advance the ability of members of the community to protect themselves.

18. The matters to which I have so far referred point strongly in favour of allowing access to the Court file. However, there is particular complexity to this case and a number of countervailing circumstances. Mr Bowdidge relies on a combination of circumstances in resisting the application for access to the documents. He relies on his solicitor’s affidavit annexing a number of earlier news reports, many or most of which were published by the applicant or available on The Daily Telegraph’s website. He also tendered a number of case notes made on the OIMS system during the period of the previous supervision order. [5]

    5. High Risk Offender (HRO) cases are riddled with acronyms. OIMS means “Offender Information Management System”.

19. Mr Bowdidge relies on privacy concerns that arise with the release of personal, medical and psychiatric histories and notes, on the basis that such records are generally not able to be released or accessed by virtue of various statutory provisions. Whilst part of this complaint is valid, and part is not, [6] such privacy concerns arise in every case where documents of this nature are tendered in court proceedings. While I accept that it is relevant to the exercise of discretion in this case, it is not a matter entitled to a great deal of weight.

    6. Some of the legislation relied on is not applicable to the media or in the circumstances.

20. Mr Bowdidge also refers to his recent history of compliance, good behaviour and lack of serious criminal offending. While there have been some breaches of the ESO over the years and incidents that I described in my judgment as “troubling”, the reality is that Mr Bowdidge has been compliant for the most part and has not committed any serious offence against children for almost two decades. In that context, Mr Bowdidge submits that the media interest is overblown and he points to the articles that have been published which he says are inflammatory and unbalanced. He submits that they have led to at least one incident that caused those supervising him to restrict his movements and become concerned for the safety of departmental staff (and presumably, Mr Bowdidge). As I read them, none of the articles, with the exception of an AAP Newswire article of 14 February 2019, emphasised the fact that his last offence against children was in 2001. This, along with the emotive and pejorative language employed, underscores the submission that the reporting to this point has not been fair and balanced.

14. I turn to the evidence tendered by Mr Bowdidge in this application, namely in the affidavit and Exhibit 1. Throughout February and March of 2019, a number of articles concerning Mr Bowdidge were published in newspapers and online. These articles were disparaging and emotive. They labelled Mr Bowdidge a “child rapist” and a “vile paedophile”. It seems these articles remain online and accessible to the public.

15. On 11 February 2019 there was an article in The Daily Telegraph (or on its website) naming Mr Bowdidge and publishing photographs of him in the street. An OIMS note dated 13 February 2019 suggests that this led to a proposal to relocate Mr Bowdidge in light of ongoing media attention and that all of his activities, except for essential grocery shopping, were to be suspended for a week. The DSA [7] also expressed “staff safety concerns” and were worried that “they may be targeted if out in the community with him and he is recognised”. Another note on the same day shows that a “response safety management plan” was to be developed in the event that “an [irate] member of the community” approached Mr Bowdidge in the future.

    7. Another acronym; in this case “Disability Services Australia”.

16. On 16 February 2019, a member of the public identified Mr Bowdidge at a shopping centre and began to take photographs of him. The woman then approached Mr Bowdidge’s support worker and asked “Are you with him? He is the one in the paper.” Following this incident, all of the defendant’s non-essential activities were cancelled for four weeks. Mr Bowdidge was only allowed to leave the house to go grocery shopping one day per week between 10:00am-12:00pm in the company of two ESO staff members and one DSA staff member. Mr Bowdidge was told not to answer the door.

17. On 6 March 2019, Mr Bowdidge was approached at his home by somebody who introduced themselves as a staff member of The Sunday Telegraph. Following this second incident and in light of safety concerns and possible community backlash, Mr Bowdidge was forced to relocate to a Community Offender Support Program Centre (a “COSP”) under the supervision of Corrective Services.

18. There is some force in these submissions and in the concerns raised. While there is no expert evidence on the issue, it is easy to conclude that such incidents and restrictions inhibit Mr Bowdidge’s ability to re-integrate into the community and have the potential to impede his efforts at rehabilitation. Encouraging offenders to undertake rehabilitation is one of the objects, although not the primary object, of the Act: s 3(2). Even so, as was accepted in argument, whether or not the file is released, there is nothing to stop the media from continuing to publish articles and reports about Mr Bowdidge, his offending history, his court cases and his supervision and performance under the ESO.

19. A significant factor in this case is Mr Bowdidge’s intellectual disability. The OIMS notes show that he had difficulty in following the “clear” instructions given to him not to open his door to strangers or to talk to them. When the self-described “staff member” of the newspaper came to his front door, he opened the door and engaged in a conversation despite the instructions he had been given by those supervising him.

20. Another significant factor is the compulsory nature of the psychological and psychiatric examinations and the public interest that offenders subject to such examinations be encouraged to provide a truthful account of their actions and thoughts. Mr Bowdidge appeared to be a particularly unguarded historian. For example, he acknowledged that he still had sexual urges relating to female children. If such reports are routinely released and publicised there is a risk that offenders will provide misleading or incomplete information to those preparing the reports and risk assessments for the Court. On the other hand, the expectation of confidentiality that often accompanies consultations with health care professionals is not a consideration; Mr Bowdidge knew, and presumably understood, that the examinations were for the purpose of preparing reports for the Court. However, it does not necessarily follow that Mr Bowdidge understood or anticipated that the reports prepared and details of those examinations would be made publically available.

21. I find the combination of circumstances relied upon by Mr Bowdidge to be powerful and persuasive.

22. Even so, the judgment delivered on 19 December 2019, while fulfilling the purpose of providing reasons for the orders that were made, does not provide much detail of the particular aspects of the evidence that guided the decision to make the ESO, to subject Mr Bowdidge to particular conditions, and to determine the appropriate duration of the order. By way of example, I referred at [26] and [31] to Mr Bowdidge behaving “inappropriately on many occasions” and to “a number of troubling incidents” but there is no detail of these incidents in the judgment: State of New South Wales v Bowdidge [2019] NSWSC 1843. On the other hand, the written submissions of the parties, particularly those filed by the State, are comprehensive and provide significant detail of the history of the case, the mental health and risk assessments, and the kinds of incidents that led me to conclude that a further period of supervision was appropriate.

23. Having considered the evidence, the competing interests and the various matters that bear upon the exercise of the discretion, and guided by the fundamental principle of open justice, I am satisfied that the correct approach is to grant the application to a limited extent. I will not grant access to the risk assessment, psychological and psychiatric reports but will allow the applicant to access the written submissions of the parties and the transcript of evidence and oral argument. The summary provided in the State’s submissions is compendious, fair, accurate and unemotive and it is tied closely to the issues that arose for determination. The written submissions accurately set out the evidence and issues that were before the Court and allow for a greater understanding of the reasons for the decisions made on 19 December 2019.

24. In making these orders, I am conscious that much of the material in the reports to which access will not be allowed is summarised in the written submissions. Because Mr Bowdidge did not contest the making of the ESO, very little attention was paid to the factual detail and opinions contained in the risk assessment and expert reports. The history and opinions stated in the reports were not challenged or scrutinised. At least some of the opinions expressed are based on statistical tools which are not free of controversy: cf, for example, Ewert v Canada [2018] 2 SCR 165; State of New South Wales v Wainwright (Preliminary) [2019] NSWSC 1603. They were not subject to any critical examination in the course of the hearing except to the limited extent disclosed in the transcript of proceedings. This was because Mr Bowdidge did not greatly contest the orders sought by the State and the parties focused on the narrow issues that were in dispute.

25. The factors referred to above in [26] – [27] also weigh heavily in my decision to chart this middle course of allowing access to the written submissions while maintaining the restriction in relation to the risk assessments and expert reports.

26. I am also conscious of the fact that the written submissions are, in a sense, a secondary source and the applicant is not being permitted to access the actual evidence upon which the decision is based even though that evidence was tendered in open court. In exercising the discretion to lift the restriction on access to the file, I have concluded that this is a somewhat exceptional case where there should remain some limitation on third party access to the file even though the material was tendered into evidence. I have considered Mr Bowdidge’s intellectual disability, the harassment he has faced following previous publications, his limited capacity to cope with those challenges, and the impact these things have had on his privacy, liberty, freedom of movement and, potentially, his rehabilitation.

27. For those reasons, I make the following orders:

1. Order (3) made on 19 December 2019 is varied so as to allow Lucy Hughes-Jones, a journalist employed by Nationwide News Pty Limited, to have access (including photocopying access) to the following documents:

1. The written submissions of the plaintiff filed 7 November 2019,

2. The written submissions of the defendant filed 25 November 2019,

3. The plaintiff’s written submissions in reply filed 5 December 2019, and

4. The transcript of proceedings of 12 December 2019.

2. The plaintiff and the defendant to the primary proceedings may first have access to the documents to determine whether any redactions are appropriate.   

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Endnotes

Decision last updated: 03 March 2020