State of New South Wales v GJO

[2024] NSWSC 676

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v GJO [2024] NSWSC 676

Hearing dates:

31 May 2024

Date of orders:

31 May 2024

Decision date:

31 May 2024

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

See [10]

Catchwords:

CIVIL PROCEDURE – suppression and non-publication orders – significant media interest – where past publication of identity allegedly resulted in vilification – previous non-publication orders by this Court – necessity of an interim order under s 10 Court Suppression and Non-publication Orders Act 2010 pending final determination of non-publication application

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 9, 10

Crimes (High Risk Offenders) Act 2006, ss 7, 10A

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
GJO (Defendant)

Representation:

Counsel:
D New (Plaintiff)
Self-represented (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s):

2024/00131008

Publication restriction:

See [10]

ex tempore JUDGMENT (revised)

1. By summons filed on 5 April 2024 the State of New South Wales (“State”) makes an application for a third extended supervision order (“ESO”) against the defendant. The matter has been fixed for hearing before me today for a preliminary hearing in accordance with the provisions of s 7 of the Crimes (High Risk Offenders) Act 2006 (NSW) (“HRO Act”).

2. Ms New of counsel appears for the State and the defendant has appeared without legal representation. He has explained to me that it has been determined that he is not eligible for Legal Aid in respect of these proceedings, but that he has discussed the matter with a solicitor who has previously acted for him on an earlier ESO application and other matters. That solicitor is currently engaged in a trial in Western Australia and was not able to appear today. But it is the defendant's expectation that she will be able to represent him at any final hearing if I make an interim supervision order (“ISO”) under the provisions of s 10A HRO Act.

3. At the commencement of today’s hearing the defendant made an application for a suppression or non-publication order in the same terms as had formerly been made in previous proceedings by Rothman J on 14 July 2020 for the purpose of the second application for an ESO and continued by Beech-Jones J on 7 and 9 October 2020 when the final orders in that regard were made.

4. Ms New has made it quite clear to me that the State opposes the making of any further suppression and non-publication order in these separate proceedings. I am conscious of the consideration that this is a case which has attracted a great deal of media interest and, I suppose it could be said, notoriety.

5. The provisions of s 9 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the “Act”) entitle various categories of person to appear and be heard by the Court on an application for a suppression or non-publication order before the order is made. The categories of person who are entitled to be heard include any party to the proceedings, in this case the State, a news media organisation and any other person who, in the court's opinion, has a sufficient interest in the question of whether such an order should be made.

6. When I was being addressed by Ms New in relation to the defendant’s oral application, I indicated that I thought the appropriate way of dealing with the application was to make an interim order under s 10 of the Act to enable the matter to be properly prepared, and for notice to be given to the other interested parties, to whom I have referred.

7. I have expressed the provisional view that the expression "any other person" in s 9(2)(e) of the Act would extend to the victims of the defendant's serious sex offending from the 1990s. In my discussion with Ms New, I also expressed the view that at the conclusion of the preliminary hearing it would be permissible, to my mind, for any evidence in relation to those persons to be provided as part of the State's case in opposition to the making of a final non-publication or suppression order.

8. As my colleague Rothman J and my former colleague Beech-Jones J saw fit to make these orders in the past, I am of the view that an interim order under s 10 of the Act is appropriate. First, because an application for an order under s 7 of the Act should be considered in a formal way supported by actual evidence. Secondly, the State should be given a chance to put forward any evidence and legal argument in opposition to the order being made. Thirdly, before any decision is made, other interested parties referred to in s 9 of the Act ought to be given a fair opportunity to appear and be heard as the legislation contemplates. Finally, thought it best not to hold up the conduct of the preliminary hearing with this issue. It is more efficient to make an interim order and make directions as to the further conduct of the application.

9. It seemed to me that there is some material before me to back up the defendant's assertion that media publicity, since his release from the long sentence that was imposed upon him for the serious sex offending, has operated to his disadvantage in terms of employment, residence and the vilification to which he has been subject. I am not making any final decision about those matters now.

10. In these circumstances I make the following orders:

1. Under s 10 of the Act, The Court orders the suppression and non-publication of the name and any other information that would tend to reveal the identity, address or occupation of the defendant until further order.

2. For the purpose of these proceedings, the reasons I have just given, the transcript, and the decision I will publish at the outcome of the preliminary hearing under HRO Act, the defendant shall be referred to as “GJO”.

3. Orders 1 and 2 will subsist until the final determination of the defendant’s application in accordance with the directions for management of that application that follow.

4. Direct the defendant to file and serve a notice of motion seeking orders in accordance with ss 7, 8 and 9 of the Act, supported by affidavit, any other evidence and written submissions upon which he intends to rely by 14 June 2024.

5. The State and any other interested person, as described in s 9(2) of the Act, is to file and serve any affidavit, any other evidence and written submissions in opposition to the defendant’s application by 28 June 2024.

6. List the matter for directions before the Common Law Case Management Registrar on 1 July 2024 for the purpose of fixing the defendant’s application for hearing either before the Duty Judge that day or in the discretion of the Registrar on the first available date as a special fixture, having regard to the provisions of s 10(2) of the Act.

7. Reserve liberty to the plaintiff to apply orally for the dissolution of the interim orders pronounced as orders 1, 2 and 3 hereof if the defendant defaults in complying with order 4.

8. Reserve judgment in relation to the preliminary hearing.

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Decision last updated: 03 June 2024