State of New South Wales v Gjo (No 2)

[2020] NSWSC 969

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v GJO (No 2) [2020] NSWSC 969

Hearing dates:

14 July 2020

Date of orders:

29 July 2020

Decision date:

29 July 2020

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) The orders made by the Court, pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on 14 July 2020 be set aside;

(2) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the Court orders the suppression of the name, identity, address and workplace of the defendant and the non-publication of the name, identity, address and workplace of the defendant and any information or matter that would tend to reveal the name, identity, address and workplace of the defendant on the basis of the grounds prescribed in ss 8(1)(a) and 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW);

(3)   For the purposes of these proceedings, any judgment issued in relation to these proceedings and any reasons for judgment issued or any other document published as a consequence of the reasons for judgment or the judgment, the defendant shall be referred to as “GJO”;

(4)   Orders (2) and (3) above will subsist until further order of the Court.

Catchwords:

COURTS AND JUDGES – principle of open justice – Departures – safety of defendant – impeding the rehabilitation of the defendant – Court Suppression and Non-publication Orders Act 2010 (NSW) – suppression of name, identity and workplace and orders prohibiting publication

SUPRESSION ORDERS – Court Suppression and Non-publication Act 2010 (NSW) – primary objective of open justice – whether suppression order necessary – meaning of “necessary” – effect of suppression order on open justice – evaluation of balance – limitations on Interim Suppression Orders under s 10.

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 4, 6, 7, 8, 9, 10, 13

Crimes (High Risk Offenders) Act 2006 (NSW), s 3

Cases Cited:

D1 v P1 [2012] NSWCA 314

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125

Grassby v the Queen (1989) 168 CLR 1; [1989] HCA 45

Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36

Hamzy v R [2013] NSWCCA 156

John Fairfax & Sons Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Category:

Procedural and other rulings

Parties:

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

Representation:

Counsel:
D New (Plaintiff/Respondent)
A Cook (Defendant/Applicant)

Solicitors:
Crown Solicitor’s Office (Plaintiff/Respondent)
Younes + Espiner Lawyers (Defendant/Applicant)

File Number(s):

2020/171836

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the Court orders the suppression of the name and the non-publication of the name and the suppression and non-publication of any information or matter that would tend to reveal the identity, address or workplace of the defendant until further order of the Court.

Judgment

1. HIS HONOUR: On 14 July 2020, the Court, as presently constituted, made orders that the defendant be subject to an Interim Supervision Order (hereinafter “ISO”). The reasons for granting the ISO were issued ex tempore (hereinafter “the ISO Judgment”).

2. During the course of the proceedings, the defendant agitated a Motion, notice of which was filed and served on 9 July 2020. The Motion seeks suppression orders relating to the publication of the identity of the defendant and any information that would reveal his identity, his address or his workplace (if any).

3. The defendant did not oppose the making of an ISO and was, at the time of the ISO Judgment, the subject of an Extended Supervision Order (hereinafter “ESO”), which expired on 19 July 2020, from which time the ISO issued by the Court, as presently constituted, will operate.

4. On 14 July 2020, the Court issued an Interim Suppression Order, pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (hereinafter “the Act”), preventing and/or prohibiting the publication of the name of the defendant, his address or place of work and any information that might otherwise identify him, his address or his place of work, pending further order of the Court and reserved on the issue of whether an order under s 7 of the Act would issue. In the Court’s view, expressed at the time, an interim order was necessary to prevent the determination of the application under s 7 of the Act being rendered nugatory.

Background

5. The starting point for the principles to be applied in any application for a non-publication or suppression order is the prima facie position that court proceedings must be conducted in public and the public has the right to know that which is occurring in the courts. There are a number of purposes served by the public interest in open justice and they include that the work of the courts should not be done in secret, but should be subject to public scrutiny; and the right of the public to know how the laws are being implemented.

6. Notwithstanding, or because of, the public interest in open justice, the legislature has promulgated specific provisions relating to Suppression and Non-publication Orders in the Act. The Act relevantly provides:

“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.

7    Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:

(a)    information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b)    information that comprises evidence, or information about evidence, given in proceedings before the court.

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.

10    Interim orders

(1)    If an application is made to a court for a suppression order or non-publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined.

(2)    If an order is made as an interim order, the court must determine the application as a matter of urgency.

13    Review of orders

(1)    The court that made a suppression order or non-publication order may review the order on the court’s own initiative or on the application of a person who is entitled to apply for the review.

(2)    Each of the following persons is entitled to apply for and to appear and be heard by the court on the review of an order under this section:

(a)    the applicant for the order,

(b)    a party to the proceedings in connection with which the order was made,

(c)    the Government (or an agency of the Government) of the Commonwealth or of a State or Territory,

(d)    a news media organisation,

(e)    any other person who, in the court’s opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should have been made or should continue to operate.

(3)    On a review, the court may confirm, vary or revoke the order and may in addition make any other order that the court may make under this Act.’

7. As is now trite, the construction of statutes requires the Court to discern, from the words of the statute, the intention of the legislature and to give effect to that purpose or intention, seeking to derive harmonious goals consistent with the purposes of the statute. [1] There is no express provision in the Act dealing with the objects; and the terms of the Act [2] expressly provide that it does not limit or otherwise affect (to diminish or to expand) any inherent jurisdiction or any powers that a court, apart from the Act, has in order to regulate proceedings or deal with contempt. Nevertheless, s 6 of the Act makes clear that a consideration that the Court must take into account when deciding to make an order is that a primary objective of the administration of justice is to safeguard the public interest in open justice.

   1. Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.

   2. The Act, s 4.

8. The statute under which the ISO, and ultimately an ESO, issues, being the Crimes (High Risk Offenders) Act 2006 (NSW) (hereinafter “High Risk Offenders Act”) sets out express objects. The primary object is to provide jurisdiction for the courts to order the extended supervision and continuing detention of high risk offenders, including high risk sex offenders, so as to ensure the safety and protection of the community. [3]

   3. High Risk Offenders Act, s 3.

9. Another object, but not the primary object, is the encouragement of high risk sex offenders and high risk violent offenders to undertake rehabilitation. It is unnecessary, for present purposes, to define a high risk offender of either category.

10. There is no issue in these proceedings that the defendant: is in that category; and, on the matters alleged in the Amended Summons and material supporting the Amended Summons, in the absence of an ISO, would pose an unacceptable risk to the safety and protection of the community. As to whether, at a final hearing for an ESO, the matters alleged will be the subject of proof, is a matter best left for final hearing.

11. The Court, in this application, must balance the achievement of the purposes expressed in the High Risk Offenders Act and the primary purpose of the administration of justice codified, if not otherwise obvious, in the Act.

12. The foregoing informs the exercise of the Court’s jurisdiction in relation to the making of proposed orders under the Act. Further consideration of the principles and the evaluative exercise to be undertaken will be dealt with later in these reasons for judgment. At this point, it is necessary only to reiterate that the defendant relies, for the orders that are proposed, on the provisions of s 8(1) of the Act and, in particular, paras (a), (c), (d) and (e) thereof.

Interim Suppression Order

13. As was made clear in the ex tempore judgment, giving the reasons for the issuing of an ISO against the defendant and dealing with the application for a Suppression Order, the Court issued an Interim Suppression Order, pursuant to the terms of s 10 of the Act.

14. As the terms of s 10(1) of the Act make clear, such an Interim Suppression Order may be made without the Court determining the merits of the application. That expression, in my view, makes clear that an Interim Order, issued pursuant to the terms of s 10 of the Act, is not intended to subsist for any longer period than is necessary and the provisions of s 10 of the Act are promulgated for the purpose of allowing the Court to ensure no conduct occurs that would render nugatory an order that the Court was minded to make under s 7 of the Act.

15. An order under s 10 of the Act is not intended to be an order that subsists, for example in relation to these proceedings, during the whole of the period in which an ISO operates, which may be for a period of three months, or more, if the period of supervision is suspended for any purpose set forth in s 10C of the High Risk Offenders Act.

16. An order that issues under s 7 of the Act is not in the strict sense a “final” order. An applicant for a Suppression Order would be within his or her rights to make further application for an Order, or to make application for the variation of an Order that has already been made. Indeed, nothing in the Act precludes the making, variation or setting aside of an Order initially made under s 7 of the Act and, as can be seen, such an Order can be reviewed, varied and revoked pursuant to s 13 of the Act.

17. As a consequence, while not suggesting that the term is necessarily absolutely appropriate, the order is “interlocutory”. [4] Whatever be the appropriate categorisation of an order under s 7 of the Act, there can be no doubt that the terms of s 10 of the Act render an Interim Order “interlocutory” and a court should make orders under s 10 of the Act, in my view, only on the basis that it is a “caretaker” position, pending the evaluation of the issues necessary for the determination of whether an order under s 7 of the Act should issue.

    4. Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36.

18. During the course of the submissions in these proceedings, the defendant suggested that an Interim Order under s 10 should issue until the issues under s 7 of the Act could be determined, being at the time that an ESO was determined. In my view, such duration, for an order under s 10 of the Act, is inappropriate.

19. There may be circumstances, albeit unlikely, where the making of an ESO is, coincidentally, scheduled for a point in time that would otherwise require an Interim (Suppression) Order that was of the same duration as the ISO. But even in those circumstances, it seems inappropriate to fix the duration by the occurrence of that event. Ultimately, s 10 orders are intended to “hold the fort”, i.e. prevent the application under the Act being rendered nugatory, while the Court considers on its merits whether an order under s 7 of the Act should issue.

Evidence

20. The evidence upon which the defendant relies for the application is uncontroversial, in the sense that it is accepted, generally, by the plaintiff for the purposes of this application. This is not the first time that the defendant has sought a suppression order from the Court. As indicated already by the Court, as presently constituted, the defendant has been the subject of an ESO which expired on 19 July 2020, at which point in time the ISO, issued by the Court, continued the supervision previously regulated by the ESO, in precisely the same terms.

21. The index offending occurred between 1995 and 1996. There have been no serious offences since that time, although, for much of that period, the defendant was serving a term of imprisonment. The defendant was sentenced to a term of imprisonment of 20 years, which commenced in early 1997 and included a non-parole period of 16 years’ imprisonment. The defendant spent two years longer in prison than was essential, if parole had been granted at the earliest possible time.

22. On release, the defendant complied with his conditions of parole and was not the subject of any breach. While on parole, the Court, differently constituted, issued an ISO, binding on the defendant and, following the making of the ISO, bound the defendant to an ESO for a period of three years. At the time, the State of New South Wales applied for an ESO of five years’ duration.

23. In the second half of 2018, the Court varied the ESO conditions.

24. As indicated in the ISO Judgment, and notwithstanding the foregoing, during the time that the defendant was subject to the conditions of the ESO, he committed two offences: one a breach of his ESO in that his then partner, with whom he had commenced an intimate relationship, stayed overnight at his residence and, contrary to the ESO, he did not seek and obtain the permission of his supervisor. For that offence, he was sentenced to 4 months’ imprisonment. There is no suggestion, as noted in the ISO Judgment, that anything in the intimate relationship he had with his then partner involved any conduct by the defendant that was unwelcome, unsolicited, uninvited or violent.

25. Over and above the foregoing, the defendant was convicted of a second offence whilst he was subject to the conditions of the ESO, being a common assault, which, according to the sentencing judge, involved the defendant recognising a 16 year old retail assistant, kissing her on the cheek and placing his hand on her hip. The defendant accepted that he was reckless as to her lack of consent to that conduct. He was sentenced to a 15 month good behaviour bond for that conduct.

26. The details of his offending are otherwise set out in the ISO Judgment. As the evidence before the Court makes clear, and as has been accepted by judges of the Court, there have been significant threats and the commission of violence against the defendant. The violent offences committed against the defendant occurred while the defendant was incarcerated. While these are deplorable, corporal or capital punishment not being part of the criminal justice system, in my view, such assaults shed little or no light on threats to the safety of the defendant outside of the prison system.

27. Nevertheless, there are concerns associated with conduct out of prison relating to the safety of the defendant and other issues caught within the general rubric of the provisions of s 8 of the Act. After the final ESO hearing, in early 2017, there was significant press attention given to the defendant and his history. That press coverage disclosed his address and his employer became aware of the possibility of bad publicity. Prior to the final ESO hearing, which imposed upon the defendant the ESO to which earlier reference has been made, there had been no threats to the defendant or to his family.

28. Immediately after the proceedings in 2017, as stated, press coverage was occasioned. Following that press coverage, the defendant received a telephone call from a member of his family, who informed him that, since the previous evening’s press coverage, she had received numerous phone calls from friends, who had recognised him and were aware of the relationship.

29. On the same day, the defendant was approached by a work colleague, who had seen one of the articles and informed the defendant that a number of people at his workplace were talking about the information in the article.

30. About two days later, the defendant’s employer informed him that he had seen his photograph in the paper. The employer was aware that the defendant was on parole, but not of the nature of the offences committed. The manager informed him that from his personal perspective it was not a problem, but they would need to consider it.

31. A few days later, as a result of concerns expressed by some female workers, the defendant was informed by management that his situation was being “weighed up”. Shortly thereafter, he was asked to resign. The alternative, he was informed, was that his employment would be terminated.

20. At one stage, the supervising officer and Corrective Services imposed a curfew on the defendant, over and above the conditions on the ESO, because of fears for the defendant’s safety.

21. Some of the press coverage has been tendered before the Court, as have a number of posts on Facebook pages that published or summarised the articles and information in question. Those posts contain express and implied threats to the safety of the defendant. However, those posts occurred a significant time ago.

22. The defendant, in these proceedings, relies on the issuing of the threats following press coverage and submits that the Court can draw the inference that, if further press coverage occurred, a similar response would result.

23. Following the loss of his first job, the defendant obtained another position. After the final ESO hearing, to which I have previously referred, the employer’s attitude and demeanour altered and, on that day, he informed the defendant that his services were no longer required.

24. Further, as the address at which the defendant was living was publicised, and photographs of the apartment building published, notes were plastered on the apartment block referring to the defendant and his past criminal conduct. As a consequence, the real estate agent required the defendant to vacate the premises.

25. The defendant obtained a third position. He was terminated when he was bail refused for the breach of the ESO, but continued to pay rent for his new premises during that four-month period.

26. Notwithstanding the long-standing support of the defendant’s sister and brother-in-law, following the latest set of media reports, his sister became extremely distressed and informed the defendant that she could not maintain contact with him any further. The defendant has also lost contact with other family members.

27. As a consequence of the foregoing, from the latter part of 2018, the defendant was struggling with mental health issues and commenced seeing a private psychologist, apart from the treatment he was required to receive as a consequence of the ESO that was in place.

28. The defendant now has employment, which has subsisted for over 12 months. Generally, the defendant keeps to himself; avoids making eye contact with people; and worries that people might recognise him, abuse him, assault him or otherwise take the law into their own hands.

29. Nevertheless, he does exchange greetings with his neighbours in his current apartment building and has formed some work friendships. None of those people are aware of his history.

30. The defendant expresses the fear that, if his history and identity becomes public knowledge again or is given media publicity, he will lose his job, his apartment and the few acquaintances that he has made.

31. There is independent evidence corroborating the issues upon which the defendant relies and his concerns and their genuineness.

Submissions

44. The defendant relies upon the evidence in the affidavits going to the publicity that has been occasioned each time the defendant has been before the Court. Further, the defendant relies upon the threats of harm; the implicit threats associated with the notices previously pasted onto his residence; his loss of employment on more than one occasion; the breakdown in his family relations; and all the other evidence relating to his distress.

45. The defendant draws the Court’s attention to the primary object of the High Risk Offenders Act, but relies upon the object being the rehabilitation of the defendant. This is, in the submission, an important consideration.

46. As is manifestly common sense, the rehabilitation of the defendant would be in the best interests of the community and better serve the protection of the community.

47. The defendant relies upon the fact that rehabilitation has been hindered because of media attention in the manner to which the Court has already referred.

48. Further, the defendant relies upon the fact that the serious offending occurred over 25 years ago and there has since been no serious offending, or offending of a similar kind. The defendant relies upon the lapse of time since that offending occurred. The defendant relies upon the progression of the defendant whilst he has been subject to the ESO and his rehabilitation being a factor facilitating the proper administration of justice and submits that the public interest in making the suppression order outweighs the public interest in open justice.

49. The State of New South Wales opposes suppression orders issuing.

50. The State of New South Wales relies on the requirements of s 8 of the Act and in particular the use of the term “necessary” as the requirement for overturning the public interest in the open administration of justice. Further, the State of New South Wales refers to the threats that were published concerning the defendant and notes that none of the threats were, in fact, carried out.

51. While the State makes clear that it does not condone the threats that were made, which, as I commented during the course of the proceedings, I had taken for granted, the State nevertheless emphasises that these threats, while inappropriate and abhorrent, are threats in electronic media and they have not manifested in any actual violence.

52. It is fair to say, on the evidence before the Court, that there has been no assault on the defendant or confrontation in person. If that is the effect of the State’s submission, it is accepted by the Court. Of course, that comment does not deal with the impact upon the defendant’s accommodation and employment.

Consideration

53. The offences that form the index offences and which were committed some 25 years ago were extremely violent rapes. The youngest of the victims was 16 years of age; another was 17 years of age; the remainder were in their 20s. Each was a female. The sentencing judge took the view that the first two offences were opportunistic, but, thereafter, the offences were planned.

54. As earlier stated, the offences are extremely serious and no doubt had, and continue to have, a huge impact upon the lives of the victims. While the offences indicate a paraphilic disorder, in that they manifest a sexual perversion or deviation or an abnormal sexual instinct expressed in ways that are socially prohibited or unacceptable, they do not involve paedophilia.

55. Most paraphilic conditions are difficult to treat and are, in a true sense, incurable. So much is evident from the expert evidence tendered in these proceedings to support the making of the ISO. In the case of the defendant, the treatments that have been pursued have been largely ineffective.

56. Having made that comment, the psychological and medical treatment that has thus far been implemented has resulted in the outcome that no offences, manifesting any paraphilic condition or disorder, have occurred. Nevertheless, those issues form the background and part of the considerations that informed the decision to issue an ISO and previous orders of like kind.

57. There are a number of methods which are seen to be effective in minimising the prospect of reoffending in such circumstances. Particularly when one is dealing with an offender over the age of 60, the incidence of sexual reoffending is significantly diminished. This is often encouraged by the use of anti-libidinal medication and the formation of more permanent socially desirable intimate relationships, which then have the effect of overcoming any desire to engage in inappropriate or prohibited sexual conduct. Fundamental to rehabilitation is the existence of stable employment and stable accommodation.

58. The primary objective of the High Risk Offenders Act is the protection of the community. The unacceptable risk otherwise posed by the defendant is ameliorated by the imposition of conditions, which reduce that risk, or the unacceptability of it, to a point where the Court, at the instigation of the State, can be satisfied that an unacceptable risk is being appropriately managed.

59. On 14 July 2020, the Court made ancillary orders associated with the preparation of reports by psychiatrists on the risk levels of the defendant and the ISO includes the imposition of conditions that significantly impact upon the liberty and flexibility of the defendant.

60. Those conditions include the wearing of electronic monitoring equipment as directed by the Department Supervising Officer (“DSO”) and the requirement to follow all reasonable directions of the DSO. They also require the defendant to provide a weekly plan or schedule of movements at least three days before the plan is to commence and to notify any changes to that schedule, at least 24 hours in advance, for the approval of the DSO. The DSO is able to disapprove of any activity in which the defendant plans to be involved.

61. Further, the DSO must approve the residence at which the defendant is to live and Corrective Services examines any proposed residence for any likely risk associated with such residence and then approves or disapproves of the residence depending upon that assessment. Often, in the short term, accommodation is provided by Corrective Services at supervised accommodation (COSP).

62. Leaving aside the approval that is required of the activities of the defendant, there are travel restrictions, beyond those imposed by the government as a consequence of the current coronavirus issues, which prohibit the defendant from leaving New South Wales without the approval of Corrective Services. The defendant’s passport has been and must continue to be surrendered and the defendant is not entitled to go to any place of which the DSO disapproves.

63. Further again, any employment for which the defendant applies or which he undertakes must be approved, beforehand, by his DSO and the defendant is not entitled to start any kind of work, whether paid or otherwise, or an education course, without the approval of his DSO. This includes a prohibition on the defendant starting any business or forming any company or other entity to carry on business.

64. The defendant is prohibited from approaching children, being, for this purpose, a person under the age of 18, unless expressly approved by his DSO and is prohibited from associating with adults if the DSO tells him not to.

65. Any friendship or relationship with an adult woman must be notified to his DSO as soon as practicable. Further, the DSO is entitled, if not required, to notify any person, with whom the defendant seeks to have a relationship, of the defendant’s criminal history. There are restrictions on the defendant joining or affiliating with any club or organisation; any Internet or social networking service; and obvious conditions relating to prohibitions on carrying weapons or cutting instruments. The defendant is also prohibited from utilising any electronic communication device if he has not provided the device’s details to the DSO, who then is able to obtain access to it, both remotely and on inspection.

66. I recite the foregoing so that the circumstances of the defendant’s supervision are understood. There are significant and far-reaching restrictions on the defendant, his employment, his residence, his use of electronic equipment and mobile phones, and the persons with whom he associates and the organisations he joins.

67. Moreover, these restrictions are able to be monitored by electronic monitoring equipment, the wearing of which is a requirement of the ISO (and previously the ESO), whenever required by Corrective Services through his DSO. Corrective Services are able to search both the defendant and his premises whenever they believe it to be necessary for the monitoring of the defendant’s compliance with his conditions of supervision, for the safety and welfare of residents or other employees or staff; and the like. There are other restrictions, which the Court has not summarised, but which add to the degree of supervision and monitoring of the defendant.

68. I return to the importance of the maintenance of open justice and the public interest in open justice. As the Court of Appeal has said [5] :

“[49] The first issue which arises when considering necessity is whether and to what extent an applicant for a suppression order under s 7 of the Act who relies on the ground specified in s 8(1)(c) is required to prove, on the balance of probabilities, that the order sought is necessary to protect the safety of any person, in the sense that absent the order being made it would be probable that the person in question would suffer harm. Put another way, is it a precondition to the operation of the section that as a matter of probability the person in question would suffer harm if an order was not made?

[50] On this construction of the subsection consideration must be given to the alternate ways in which the probability of harm could be prevented. In the present case if the evidence establishes that the more limited prohibition on publication ordered by the primary judge, whilst not eliminating the risk or possibility of serious injury, would have the effect of not rendering the risk that such injury would occur probable, a court would not be entitled to make a more extensive order in reliance on s 8(1)(c) of the Act.

[51] The alternative construction of s 8(1)(c) is that all the section requires is for the Court to be satisfied on the balance or probabilities that the order sought is necessary to protect a person’s safety. On this construction proof of the probability of harm is not a precondition. The necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that an order is necessary even if the risk is a possibility as opposed to a probability. Once again it would seem to me that alternative steps to the making of the suppression order sought would need to be considered in determining whether the order was in fact necessary.” [6]

5. D1 v P1 [2012] NSWCA 314.

6. D1 v P1 [2012] NSWCA 314, per Bathurst CJ, with whom McColl JA and McClellan CJ at CL agreed.

69. The starting point for any exercise of suppression orders, for present purposes, can be limited to the judgment of the Court of Appeal in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465. The Court of Appeal was there dealing with the powers of the Police Tribunal, being an inferior court of record created by statute, and remarked that it had no powers, jurisdiction or authority other than those authorised by the statute that created it. Nevertheless, the Court discussed the issues of open justice. At NSWLR 476.G, McHugh JA said:

“The fundamental rule of the common law is that the administration of justice must take place in open court. The 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 the 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. … courts have no general authority, however, to make orders binding people in their conduct outside the courtroom. Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the courts. An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and bind people generally is an exercise of legislative-not judicial power. Nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court.” [7]

7. Per McHugh JA, as his Honour then was, John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-477.

70. The foregoing principle, which takes no account of the Act, restates the long-standing public interest in open justice and is the starting point for any exercise of discretion or assessment associated with the making of any order under s 7 of the Act. The foregoing approach has been adopted on many occasions, including occasions where the starting point was as expressed by McHugh JA.

71. In John Fairfax & Sons Ltd v District Court of New South Wales [8] , Spigelman CJ discussed the jurisdiction and/or power of the District Court to make orders relating to non-publication. The Court there said:

“[17] As often happens in a context involving fundamental principle, two such principles are in conflict and a judgment must be made as to which principle is to prevail in the circumstances. The principle of open justice and the principle of a fair trial each inform and energise many areas of the law, as I have sought to show in extra-judicial addresses. (See, Spigelman, ‘Seen to be Done: The Principle of Open Justice’ (2000) 74 ALJ 290, 378 and Spigelman, ‘The Truth Can Cost Too Much: The Principle of a Fair Trial’ (2004) 78 ALJ 29.)

[18]   It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian court of justice. There is no inherent power of the Court to exclude the public. (See Scott v Scott [1913] AC 417 at 473; Dickason v Dickason (1913) 17 CLR 50 at 51; Daubney v Cooper (1829) 109 ER 438 at 440; Russell v Russell (1976) 134 CLR 495 esp at 507 and 520-521, 532.) The taking of a verdict is something which occurs in the ordinary course of criminal proceedings. (See, e.g. Coulter v The Queen (1988) 164 CLR 350 at 356, 357 and cf 359-360, 362.)

[19]   It is also well established that the exceptions to the principle of open justice are few and strictly defined. (See, e.g. McPherson v McPherson [1936] AC 177 at 200; R v Tate (1979) 46 FLR 386 at 402.) It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional constraints. (See, e.g. Dickason at 51; Russell at 520; John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 181 ALR 694 at [70]-[73].)

[20]   The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. (See, e.g. Attorney General v Leveller Magazine Limited [1979] AC 441 at 450.)

[21]   From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, e.g. Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D-E and 54G.)

[22]    The principle of a fair trial has been characterised in numerous High Court judgments in the most forceful of terms. It has been described as ‘the central thesis of the administration of criminal justice’: McKinney v The Queen (1991) 171 CLR 468 at 478; as ‘the central prescript of our criminal law’: Jago at 56; as a ‘fundamental element’ or a ‘fundamental prescript’: Dietrich v The Queen (1992) 177 CLR 292 at 299, 326; and as an ‘overriding requirement’: Dietrich at 330. It is not a new principle. As Isaacs J put it in 1923 with reference to ‘the elementary right of every accused person to a fair and impartial trial’: ‘Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle’: R v MacFarlane; Ex parte O’Flanaghan & O’Kelly (1932) 32 CLR 518 at 541-542.” [9]

8. (2004) 61 NSWLR 344; [2004] NSWCA 324.

9. Per Spigelman CJ, with whom Handley JA and Campbell AJA agreed.

72. The importance of open justice cannot be understated. The public’s right to scrutinise the conduct of the courts and the implementation of justice is the most fundamental protection that ensures the proper operation of the justice system. It not only allows for judges to be the subject of criticism in relation to the judgments that they may have made, it ensures that the implementation of justice is not seen to be governed by any secret or undisclosed factors. This is one of the reasons that reasons for judgment are an important aspect of the operation of the Courts.

73. The Court has already recited the terms most relevant from the Act. The Act contemplates that there may be times when the principle of open justice must give way to other considerations, also in the public interest. The grounds listed in s 8 of the Act, of which a court must be satisfied before it is able to make orders under s 7, require that such an order is “necessary” for certain purposes.

74. The grounds upon which the defendant relies are: (a) the prevention of prejudice to the proper administration of justice; (c) the protection of the safety of any person; or (e) that it is otherwise necessary in the public interest and that necessity outweighs the public interest in open justice.

75. The last aspect of the criterion in s 8(1)(e) of the Act needs comment. The provisions of s 6 of the Act effectively require the criteria of which the Court is satisfied under s 8(1) of the Act, under each ground, to outweigh the public interest in open justice before an order can be made. The terms of s 8(1)(e) require that the public interest in favour of the order outweighs the public interest in open justice significantly, thereby making the s 8(1)(e) criterion a more onerous burden. This is unsurprising, given the general nature of the s 8(1)(e) criterion.

76. Each criterion requires the Court to be satisfied that the order is “necessary” for the purpose there specified. The meaning of the term “necessary” very much depends on context. [10] It is used to describe the connection between the purpose identified in the paragraph and the proposed order to be made. [11] Further, it is not to be given a restricted meaning. [12]

    10. Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125, per Basten JA at [46]

    11. Ibid.

    12. Hamzy v R [2013] NSWCCA 156 at [60] per Harrison J.

77. In dealing with the jurisdiction of the District Court, the High Court of Australia considered the meaning of the word “necessary” in the context of the implied powers of a court of record. In so doing, the Court stated that every court “undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise” (emphasis added). [13]

    13. Grassby v the Queen (1989) 168 CLR 1; [1989] HCA 45, per Dawson J at CLR 16-17.

78. In dealing with the use of the term “necessary”, the High Court [14] said:

“The term ‘necessary’ in such a setting as this is to be understood in the sense given it by Pollock CB in The Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term ‘necessary’ does not have the meaning of ‘essential’; rather it is to be ‘subjected to the touchstone of reasonableness’.”

14. Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19, per Gaudron, Gummow, Callinan JJ, referring to the dicta of Pollock CB in Attorney-General v Walker (1849) 3 Ex 242 at 255-256; 154 ER 833 at 838-839.

79. Applying the foregoing to the provisions of s 8 of the Act would result in the term “necessary” being that which is “reasonably required or legally ancillary to the accomplishment” of the purpose prescribed in each such paragraph. It is that construction that I apply. The Court must then consider whether the accomplishment of the prescribed criterion outweighs the public interest in open justice. In that evaluation, there may be different answers as a result of the nature and extent of the suppression that is sought or ordered.

80. As earlier stated, I do not consider the history of violence while incarcerated such that it would satisfy the Court of the necessity, as I have used that term, of an order to protect the safety of the defendant. However, the inference is overwhelming, on the basis of the entirety of the evidence, that on each occasion that the defendant is before the Court, he has been the subject of adverse publicity and that adverse publicity has caused a number of threats, the loss of his employment, the loss of his accommodation and other detriments.

81. While the comments in blogs may often be treated less seriously than a personal confrontation, these threats are problematic and should not be wholly discounted. They include threats to shoot (presumably to kill) the defendant; threats to kill, without the means being specified; and other threats of physical and violent harm. Further, there is no doubt that these threats, which I consider, on the basis of the balance of probabilities, to be a likely result of the future or current publication of the defendant’s identity, address and/or workplace, would have a significant distressing effect on the defendant and have, on the evidence before the Court, already had such an effect in the past.

82. There can be no doubt that the defendant has effected some measure of rehabilitation. Were that not the case, the State of New South Wales would be seeking Continuing Detention Orders, rather than an ESO. There is also no doubt that, in the absence of appropriate conditions, the defendant poses an unacceptable risk of committing a serious sex offence or a serious violence offence, within the meaning of the High Risk Offenders Act.

83. However, the Court is satisfied, again on the balance of probabilities, that the publication of the defendant’s name, address or workplace would result in significant adverse publicity and publication of those details (as has occurred in the past) would significantly impact upon the defendant’s capacity to continue any process of rehabilitation. Rehabilitation is one of the objects of the High Risk Offenders Act. The safety of the community is its primary object. Both the rehabilitation of the defendant and the safety of the community are facilitated by the making of a Suppression Order of this kind.

84. More importantly, the Court needs to deal with the application for a Suppression Order on the basis of that which is suppressed. If the suppression orders are made in or to the effect of that for which the defendant applies, the public will still be able to scrutinise the evidence before the Court and its general effect; it will still be able to scrutinise the implementation of justice by the Court; the proceedings will still be open; and the result of the proceedings will be known, in the general sense required to evaluate the legislative regime and the implementation of that regime by the courts. All that would be suppressed is the name, address and workplace (or any information that would identify any of those items) of the defendant.

85. While the Court understands the interest of the public in identifying sex offenders, apart from the interest in revenge, that interest must be based upon the protection of the community itself. However, in the circumstances of an ISO or ESO, the State of New South Wales imposes on Corrective Services the duty to safeguard the community by monitoring the defendant in the manner already identified and ensuring that any risk is appropriately managed. I also have regard to the significant time since the commission of the index offences and the reduced risk of reoffending associated with both the imposition of the ISO and the age of the defendant.

86. These issues taken together satisfy the Court that the public interest in preventing prejudice to the administration of justice by inhibiting the rehabilitation of the defendant renders the orders sought by the defendant, subject to the balancing exercise to which I will come, necessary.

87. Further, the publishing of the defendant’s name, address or workplace will, once more, result in threats to his safety. The suppression of his name, address and workplace is necessary to protect his safety.

88. As already stated, the suppression orders sought do not totally impede open justice; they restrict details of the defendant, but not of the attitude of the State; the efficaciousness of the laws; or the function and conduct of judicial officers. As a consequence, some, if not the major, aspects of the primary objective of the administration of justice, being the public interest in open justice, have been safeguarded.

89. Over and above the foregoing, the interest of the public to know the identity and other details of the defendant in order to protect itself from a past offender, or for some other reasons, is not the same as the public interest in open justice. To the extent that it forms part of the purpose of open justice, it is outweighed by the necessity to prevent prejudice to the proper administration of justice by not impeding the defendant’s rehabilitation process and, also, by the necessity to protect the safety of the defendant.

90. One other matter ought to be noted. There is a degree of irony or inconsistency in the approach of the State of New South Wales. The State of New South Wales has applied for and obtained an order, being Order (3) of the orders made imposing the ISO, restricting access to the Court file by any person other than a party, without an order of the Court, made only after notification of the parties. As a consequence, it must be accepted that the State of New South Wales concedes there is a need for some kind of suppression.

91. Ordinarily, all affidavits, all exhibits and all written submissions are available to the public, including the media. It seems to me that an order suppressing the name, address and workplace of the defendant does far less damage to the principles of open justice and the public interest in open justice as part of the administration of justice than does the prohibition on members of the public knowing the evidence and submissions that have been put to the Court. It has given the Court cause to pause as to the effect of Order (3) of the orders made imposing the ISO Judgment.

92. In conclusion, the Court, as presently constituted, is satisfied that, at least for the purposes of the ISO, a suppression order should be made. It is my view that the suppression of the name, address or workplace of the defendant will have limited impact on the public interest in open justice, such that an order is necessary, within the meaning of s 8(1)(a) of the Act, to prevent prejudice to the proper administration of justice, which includes consideration of the rehabilitation of the defendant.

93. Further, while the Court accepts that no physical conduct has occurred that threatens the safety of the defendant outside of the gaol environment, the threats that have been made and published are serious threats that impact upon the safety of the defendant, within the meaning of s 8(1)(c) of the Act and, therefore, a suppression of his name, address and workplace is necessary to protect the safety of the defendant.

94. It is unnecessary for the Court to deal with the criteria specified in ss 8(1)(d) and 8(1)(e). First, in relation to the criterion in s 8(1)(d), regard must be had to the provisions of s 8(3) of the Act. Secondly, those matters that would otherwise be involved in the “public interest” to which s 8(1)(e) refers are those matters that are otherwise covered by the provisions to which the Court has already referred.

95. The Court makes the following orders:

1. The orders made by the Court, pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on 14 July 2020 be set aside;

2. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the Court orders the suppression of the name, identity, address and workplace of the defendant and the non-publication of the name, identity, address and workplace of the defendant and any information or matter that would tend to reveal the name, identity, address and workplace of the defendant on the basis of the grounds prescribed in ss 8(1)(a) and 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW);

3. For the purposes of these proceedings, any judgment issued in relation to these proceedings and any reasons for judgment issued or any other document published as a consequence of the reasons for judgment or the judgment, the defendant shall be referred to as “GJO”;

4. Orders (2) and (3) above will subsist until further order of the Court.

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Endnotes

Decision last updated: 21 September 2020