State of New South Wales v Kay

[2024] NSWSC 993

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Kay [2024] NSWSC 993

Hearing dates:

24 July 2024

Date of orders:

13 August 2024

Decision date:

13 August 2024

Jurisdiction:

Common Law

Before:

McNaughton J

Decision:

(1) The interim suppression and non-publication order of Campbell J of 31 May 2024 is revoked.

(2) The defendant’s Notice of Motion is dismissed.

Catchwords:

JUDGMENTS AND ORDERS – suppression and non-publication orders – where defendant subject to Extended Supervision Order under the Crimes (High Risk Offenders) Act 2006 (NSW) – where final non-publication and suppression orders sought – where news media organisation opposes application – whether orders “necessary” pursuant to s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW)

Legislation Cited:

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

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

Cases Cited:

AB (a pseudonym)vCD (a pseudonym) [2019] HCA 6; (2019) 93 ALJR 321

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

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

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

State of New South Wales v Graham James Kay [2018] NSWSC 1235

Welker v Rinehart [2011] NSWSC 1094

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Graham James Kay (Defendant)
Fairfax Media Publications Pty Ltd (Intervenor)

Representation:

Counsel:
D New (Plaintiff)
J Portokalli (Defendant)
M J Lewis / B Gallifuoco (Fairfax Media Publications Pty Ltd)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Hugo Law Group (Defendant)

File Number(s):

2024/131008

Publication restriction:

Nil

JUDGMENT

1. The defendant, Graham James Kay, known by the pseudonym GJO, has applied for a final non-publication and suppression order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”) in relation to his name, identity, image, residential address, workplace and any information or matter that would tend to reveal those details, including any reference to being labelled ‘The North Shore Rapist’. There is currently an interim order in place, made by Campbell J on 31 May 2024. I note that s 10(2) of the Act provides that if an order is made as an interim order, the court must determine the application as a matter of urgency.

2. This application comes about in the context of the State of New South Wales (“the plaintiff”) applying for a third Extended Supervision Order (“ESO”) under the Crimes (High Risk Offenders) Act 2006 (NSW) (“HRO Act”) against the defendant.

3. The plaintiff is neutral in relation to this application. A news media organisation (“NMO”), Fairfax Media Publications Pty Ltd, has intervened to oppose the application.

4. The defendant relies upon ss 8(1)(a), (c) and (e) of the Act:

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,

[…]

(c) the order is necessary to protect the safety of any person,

[…]

(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.

[…]

5. This is the third time the defendant has applied for a final suppression or non-publication order. The first was sought and rejected by Harrison J in 2017. The second was sought and granted by Rothman J in 2020.

6. It is necessary to set out a brief history of the matters leading up to the making of the current application.

Background

7. Between December 1995 and December 1996, the defendant committed a number of serious sex offences. The offences involved the sexual assault of a number of different women at knifepoint, having been followed (in most instances) after using public transport. In 2000, R S Hulme J sentenced the defendant to a term of imprisonment of 20 years with a non-parole period of 15 years. On 20 February 2015, the defendant was released to parole. The sentence expired on 17 February 2017. This judgment was and still is publicly available using the defendant’s name. There was significant publicity at the time of sentence.

8. On 17 March 2017, Harrison J granted an ESO over the defendant for a period of three years (“the first ESO”). On 21 March 2017, his Honour delivered a judgment revoking earlier orders made under the Act on 27 February 2017, for the non-publication of the name and image of the defendant.

9. On 7 April 2018, the defendant committed an offence of failing to comply with a condition of his ESO. The contravention was a failure to disclose an intimate relationship to his Departmental Supervising Officer (“DSO”). He was sentenced in the Local Court to a term of imprisonment for 4 months, commencing on 21 April 2018, which was later upheld on appeal.

10. On 17 April 2018, the defendant committed an assault on a 16 year old female and was convicted and sentenced to a 15-month conditional release order.

11. The facts of this matter were summarised by Wilson J in a judgment using the defendant’s name relating to the variation of an ESO relating to the defendant, State of New South Wales v Graham James Kay [2018] NSWSC 1235 at [22]-[25]:

“This incident took place on 17 April 2018. On that day, the defendant attended a suburban supermarket to purchase groceries. At a self-service checkout, he spoke to the 16 year old attendant, whom he recognised as a resident of a block of units at which the defendant had previously lived.

The surveillance footage of the incident was before the Court as part of the defendant’s case, as are still images from the footage, tendered by the State.

The incident was caught on closed circuit television footage apparently from a camera situated in front of the self-service checkout area of the supermarket. The 16 year old girl was clearly the staff member responsible for assisting customers with the checkout process. The defendant appeared to experience some problem with the register he was using, and apparently called to the young attendant. She moved towards him at a quick pace and, immediately she approached the defendant, he reached out to her and placed his hand on her hip. He then leaned towards her and kissed her on the cheek, a kiss later described as ‘slobbery’ by the girl.

The girl who, from her body language, appeared to neither want nor enjoy the attention, can be seen wiping vigorously at her cheek as she moved to the cash register to correct the problem with it. In the statement that she later made, she said she was both disgusted and, knowing from press reports of the defendant’s criminal past, very frightened by the contact.”

12. On 29 July 2020, Rothman J granted a non-publication and suppression order over the defendant’s name, identity, address and workplace as well as a non-publication order over any information or matter that would tend to reveal those details. This order related to the plaintiff’s application for a second ESO (“the Rothman J non-publication order”).

13. On 9 October 2020, Beech-Jones J granted a second ESO for a period of two years (“the second ESO”).

14. On 2 January 2022, the defendant committed the offences of sexual touching without consent, and stalk or intimidate with intent to cause fear of physical or mental harm (“the 2022 offences”).

15. On 7 January 2022, he was arrested for these offences whilst he was at his workplace and was remanded in custody.

16. In approximately March 2022, the defendant’s vehicle was damaged and the word “RAPIST” was marked on the side of the vehicle. This occurred near where the defendant had last worked at the time of his arrest for the 2022 offences.

17. On 5 May 2022, the defendant was sentenced for the 2022 offences in the Local Court to a term of imprisonment of 2 years with a non-parole period of 12 months. The Crown appealed that sentence to the District Court, and Wass SC DCJ increased his sentence to a term of imprisonment of 2 years and 6 months, with a non-parole period of 1 year and 8 months. The Rothman J non-publication order did not cover these proceedings, and no other order was apparently sought. There was publicity about the 2022 offences.

18. The judgment of Wass SC DCJ is publicly available under the defendant’s name. At [33], the following matters were observed by her Honour when considering the objective seriousness of the offending:

“(1) The Victim was not previously known to the Respondent. 

(2) The Respondent was motivated by his extreme attraction to the Victim; with his desire for companionship somehow transforming into a sexual focus.  […] 

(3) The offending was opportunistic and conducted with little planning, occasioned by an intense sexual desire and with an intent to cause fear. Although, I note that that latter matter is already contemplated by the offence. 

(4) Over a period of one afternoon on 2 January 2022 the Respondent observed and followed the Victim from about 3pm to about 5pm. 

(5) The Respondent followed the Victim throughout a shopping centre, at times walking at a fast pace and close behind her. 

(6) The Respondent followed the Victim through various levels of a department store and loitered around a changeroom as she tried on clothes. 

(7) Thereafter the Respondent followed her from store to store. 

(8) The Respondent then followed the Victim from the Sydney CBD to Haymarket.   

(9) The Respondent hastened to follow the Victim into her building. He stepped into an elevator with her and travelled with her to the floor of her apartment.   

(10) The Respondent followed the Victim intending to cause her fear and for the purpose of ultimately committing a serious crime of sexually touching her if the moment presented itself.   

(11) The Victim was unaware that she had been stalked by the Respondent earlier in the day and prior to entering her building.  She only became aware of the Respondent immediately prior to him committing the sexual touching offence.  At that time the Respondent in fact caused the Victim to fear physical harm.   

(12) The stalking stopped only once the Respondent had put himself in a position where he could achieve his purpose of sexually touching the Victim.   

(13) The learned Magistrate’s finding […] that the Respondent was ‘a predator on the hunt to follow her for so long and all this way’, is apposite. 

(14)   The Respondent knew that his actions would have a terrible effect on the Victim and that following her around would have harassed her.   

(15) The stalking was brazen and audacious, carried out whilst the Respondent was the subject of an extended supervision order and was subject to electronic monitoring that he must have known was designed in an attempt to lessen a risk that he would commit a sexual offence.”    

(Footnote omitted.)

19. On 6 September 2023, the defendant was released to parole for the 2022 offences. The parole period expired on 6 July 2024.

20. On 5 April 2024, the plaintiff applied for an extension of the defendant’s ESO (“the third ESO”).

21. On 31 May 2024, Campbell J presided over the Interim Supervision Order (“ISO”) hearing. The defendant was self-represented and made an application for an interim non-publication and suppression order over his personal details.

22. On 31 May 2024, Campbell J made an ISO and granted the defendant an interim non-publication and suppression order over his personal details pursuant to s 10 of the Act.

Evidence in support of the making of the order

23. The defendant relies upon his own affidavits of 16 March 2017, 10 July 2020, and 21 June 2024, together with affidavits of his current and former lawyers from those years.

The 2017 evidence

24. In his 2017 affidavit, the defendant stated that he was threatened in custody regularly, particularly when first arrested and shortly after being sentenced. These events coincided with increased media coverage. He was threatened with violence and also verbally abused. He was told, shortly after his arrest, that someone would arrange to assault him in custody. The threats became less regular but continued at least every couple of months until his release.

25. The day after he was sentenced in 2000, he said he was attacked by three inmates, suffering the worst assault he had been subjected to.

26. He was assaulted in 2004 by four men.

27. His family and friends told him that they also received threats when he was first arrested. Immediate family members received threats over the phone at all times of day and night, as well as receiving face-to-face threats and harassment. He stated that over time the problems his family and friends were experiencing died down but got bad again when he was sentenced.

28. He further stated that since being released from custody he had not received any threats, but that he was terrified that it will happen again if his name or image is in the media.

29. He said that when he left court on 27 February 2017, he was approached by the media who jostled him, and he was walked into a wall at the train station. He said he was scared of being identified because he was fearful that he might be assaulted.

30. On 28 February 2017, a family member reported that she had been told by friends they had recognised his image. That same day he was told by a work colleague that people had seen his image in the paper. A couple of days after that, his manager said he had seen his picture in the paper. The defendant said that his managers were aware he was on parole but had not known the nature of the offences. A few days after that, he was told that management were weighing up the situation because some female workers had voiced concerns about his continued employment.

31. On 8 March 2017 he was asked to resign, and the following day he was terminated from his job.

32. On 10 March 2017, he was contacted by his DSO who was imposing a curfew for his own safety as they were aware he had lost his job and were concerned he might be attacked if out alone at night.

33. He said that he was worried about people recognising him, finding out where he lived and that he might lose his accommodation.

34. The defendant’s then-solicitor provided an affidavit on 16 March 2017, which annexed media articles from late February and early March 2017. The article criticised his name being supressed and his opposition to wearing an ankle monitor, in the context of him being a serial rapist. A handful of Facebook posts were also set out which indicated he should fear for his safety, amongst other things.

The 2020 evidence

35. The defendant’s 2020 affidavit referred to his 2017 affidavit and added that reporters and cameramen had attended his address the evening of the first ESO hearing before Harrison J (after the non-publication order had been revoked) and his apartment building was later shown on the news. In addition to losing his job as previously set out, he said he also lost the second job he had, working for a fruit shop owner. This was directly after the first ESO hearing in 2017 and followed the media attention.

36. He was also asked to move out of the apartment he had lived in for over two years. A photo was taken of him taking out some rubbish at that apartment and a few days later somebody put a note in the lift saying that the “The North Shore Rapist lives in apartment […]”. He said “[t]he real estate agent asked me to find somewhere else to live, which I did. I have lived in that new apartment building ever since.”

37. He further added that he found a new job approximately six to eight weeks after losing his previous jobs. He progressed well in that job, and remained there until he was arrested, and bail refused, in 2018.

38. In April 2018, shortly after he was charged with common assault (which related to the incident where he grabbed and kissed a 16 year old girl at a Sydney shop) he stated that he was harassed by journalists, including a photographer, whilst washing his car in his underground apartment carpark. They also interviewed some of the residents, asking them about him. He left the premises in his car and was too scared to return. He was arrested later that night for breaching his ESO (including because he failed to disclose an intimate relationship in accordance with the terms of his ESO) and was bail refused.

39. He lost his job after being bail refused and was sentenced to a term of 4 months’ imprisonment. He was able to use his savings to pay his rent and retain his apartment.

40. His sister and brother-in-law said they could no longer have anything to do with him because of the media reports surrounding the 2018 charges.

41. The defendant stated he was really struggling with his mental health in August 2018 when he was released from custody. He did not want to go out as he was worried that he would be recognised and did not “feel up to looking for a new job”.

42. He agreed to go on a mental health plan in November or December 2018. He commenced seeing a psychologist, who he was still seeing in 2020.

43. He returned to one of his previous places of work in late 2018 and spoke to a HR manager who said the defendant could re-apply for a job if he wanted to, but he decided not to because he did not want the application to be rejected, or to create any drama for the owner or managers of the warehouse.

44. In early 2019 he started looking for a job. He started working at his then current place of employment in April 2019, eight months after he was released from custody.

45. He stated:

“I try to avoid being around people when I can because I am worried about people recognising me. When I can I will do things like grocery shopping outside of the busy times and I avoid making eye contact with people as much as I can. I am worried that people might recognise me, shout things at me, assault me, or otherwise engage in vigilantism.

I have found it really difficult to make friends with people, in part because I have a fear of them finding out about my past and then rejecting me. Despite this, I exchange greetings with some of my neighbours in my apartment building, and I have formed some work friendships. To my knowledge none of these people know about my past. If they found out, I doubt they would want to speak to me and I believe that I would definitely lose [my] job, as I have done previously.”

46. In 2020, he recorded his fears that, if the plaintiff’s application to extend his ESO became public again, he would lose his job and/or his apartment as well as the few acquaintances he had. He concluded, “[w]ithout the media attention and interference, I have been trying my best and I think have been doing well. I will continue to do well and fulfil my obligations under the ISO.”

47. His solicitor at the time prepared an affidavit dated 10 July 2020, setting out further media articles and social media posts relating to the first ESO application in 2017, the 2018 criminal proceedings relating to the offence of fail to comply with the ESO and the subsequent severity appeal, and the 2018 criminal assault proceedings. Whilst the mainstream media reports accurately reported the relevant proceedings, including that his ankle bracelet had been removed in 2018 in accordance with the order made, the social media comments were mixed. For instance, comments in relation to the 2017 revocation of the suppression order included those such as “Bullets Please!!”; “I am actually shocked he was given a 20 year prison sentence. That is very rare in Australia. There are thousands of rapists that never go to prison at all”; “Name, blame and shame always”; “He lives in my building and I’m now terrified”; “Maggot”; “Smash his face In with a SLEDGE HAMMER”; and other derogatory comments.

The 2024 evidence

48. The defendant put further evidence before the Court in his most recent 2024 affidavit.

49. He set out how he felt when Rothman J granted him a non-publication order and a suppression order in relation to the second ESO. He stated he was “relieved” that the details of his case, personal details, residential address and image were not going to re-surface again like they had in 2017 and 2018. He said the granting of the non-publication and suppression order encouraged him to build relationships with people and maintain employment. In January 2021, he started work as a forklift driver, working about 60 hours per week and earning a good income. He received positive feedback from his supervisors. It took him about 10 months to feel socially comfortable with people at work. He wore long pants to hide his ankle monitoring bracelet and “was embarrassed and had anxiety about what people would ask [him], and even worse” if they did not ask, but looked it up online. Since approximately 2018, he has attended a Buddhist meditation group weekly.

48. He stated:

“In 2021 I had made friends with a number of people, and it made me feel more connected to the community which I felt increased my self-worth. As far as I was concerned, life was looking more positive for me”.

51. Notably, and despite this apparent positive progress, the defendant was arrested and charged on 7 January 2022 for offences committed on 2 January 2022 of sexually touching another person without consent and stalk or intimidate with the intention to cause fear of physical harm, as set out above. Also notably, the defendant set out in his affidavit that no application for non-publication and suppression was made for the 2022 offences. He was refused bail.

52. The defendant set out that he was verbally abused in remand, including being told: “someone will get you”. He said he was constantly harassed and eventually transferred into protective custody.

53. He said that his arrest occurred at work. He was taken straight to the police station and his car remained in the car park. He later found out that his car had been moved onto the street to free up the car park space.

54. On 10 March 2022, he was told by police that his car had been vandalised. Photographs showed the passenger side mirror, sunroof and rear windshield had been smashed and someone had written the word “RAPIST” on the side panel of the car. There does not appear to have been any media publicity between his arrest and this incident.

55. He stated:

“Even though I was in gaol at the time, knowing what the perpetrator did to my car intimidated me; I felt targeted, threatened and unsafe. I ruminated on the thoughts of ‘what if’ I was in car at the time the perpetrator approached the car. I felt it was obvious that the perpetrator wanted to physically harm me if they had the opportunity.”

56. On 5 May 2022, as noted above, he was sentenced for the 2022 offences in the Local Court, receiving a sentence of 2 years’ imprisonment with a 12 month non-parole period. He was told by his solicitor that the media were reporting on his sentence and his criminal past was resurfacing.

57. As also noted above, the Crown appealed to the District Court, and following a hearing on 8 November 2022, Wass SC DCJ increased the sentence on 2 December 2022, to 2 years and 6 months with a non-parole period of 1 year 8 months. He was released to parole on 6 September 2023.

58. The second ESO was suspended whilst he was in custody. On release, in accordance with the second ESO, he again wore an ankle monitoring bracelet. After living in temporary housing, he signed a lease for his own apartment on 17 November 2023, and still resides there.

59. He said that he has viewed the internet media material relating to the 2022 offences, as set out in his solicitor’s affidavit and he is aware that there are “thousands of views, hundreds of ‘reactions’, and dozens of comments”. He was also aware of other media material from his past offending.

60. The defendant states that upon learning of the third ESO application, his immediate concern was that he would once again have to face a wave of media attention. He states that his depression has increased since the bringing of the third ESO application. He states: “I have contemplated self-harm and ruminate on these thoughts almost daily.” He further states he is currently unemployed and has no friendships. He also states that he rarely leaves his apartment other than to shop for groceries and seeing his psychologists once a fortnight each.

61. The defendant further states: “[t]he comments people have made about hurting me are terrifying, and I live in constant fear that I am going to be harmed if I leave my apartment.”

62. He concludes by stating:

“Due to the stress of the proceedings, and the prospects that my case and history will be ventilated in the media again, I struggle to apply for any jobs or try to develop any meaningful friendships because I feel it will all be taken away.

I believe my reintegration back into society and my rehabilitation will be significantly impacted if a non-publication and suppression order is not made over my name, image, residential address, and any other information that could identify me such as being referred to as the ‘The North Shore Rapist’.”

63. The defendant’s current solicitor exhibited a body of media material arising from the 2022 offending. He searched “Graham Kay charged”, and various articles and news video reports were returned, using the defendant’s name.

64. One, dated 12 May 2022, was headed “Serial rapist Graham Kay stalked victim around shops for two hours”, with the blurb of the article reading: “One of the state’s most notorious rapists is back behind bars after stalking a woman as she went shopping through Sydney’s CBD before sexually assaulting her in a lift.” Another media item, a video news report on a major outlet’s Facebook page is titled “Graham James Kay, Sydney’s ‘North Shore Rapist’ jailed again for an offence in Haymarket”.

65. I note that there is no suggestion that any of this reporting is inaccurate.

66. The latter video attracted approximately 2,600 views, 40 ‘reactions’ and 26 comments. A number of those comments were to the effect that he should be in custody for life without parole. One says, “[s]omeone should just knock him, doubt the police would care and we can just brush the crime scene”, and another says, “[b]ullet would be cheaper and better”.

67. Another video on 14 May 2022 attracted approximately 21,000 views, 244 ‘reactions’ and 94 comments, to similar effect.

68. Some of the articles and videos contained images of the defendant.

69. An article on 13 May 2022 stated, in apparent breach of the Rothman J non-publication order:

“And even though the 70-year-old has been forced to wear an electronic monitoring bracelet and follow a suite of strict rules since completing parole following 18 years in jail, police have warned he shows ‘scant regard’ for the law and poses an ‘unacceptable risk’ to females.

[…]

Kay’s electronic monitoring bracelet matched the CCTV at the time and officers arrested him at his workplace five days later”.

Evidence filed by the NMO intervenor

The 2017 evidence

70. An affidavit, filed on 19 July 2024, from a solicitor with the NMO annexed her earlier 2017 affidavit that was filed in support of the application seeking the review and revocation of the 2017 interim non-publication order made by Harrison J. It annexed the results of a Google search (results of webpages that detail proceedings) on the defendant’s name and a search of her company’s electronic archive (results of articles from 1997, 1999 and 2000).

71. Those searches show a significant body of material with the defendant’s name and other personal information, including his then suburb of residence and details of his offending. His image was included in a few of the articles. A number of the articles indicated that the defendant tended to blame extrinsic factors for his offending, regarded by him as “lapses”, due to factors such as his diet, and the full moon. It also recorded that he could not guarantee he would not reoffend, and a psychiatrist, Dr Westmore said upon his eventual release from prison, he remained “most uncertain” about the risks of reoffending.

72. The reporting also stated that the defendant attacked all his victims late at night while walking home or at their apartment blocks, with all but one after travelling on public transport.

Evidence from a victim of the defendant

73. The plaintiff in the current proceedings tendered a statement from a victim of the defendant’s historical offences committed in the 1990s. She states the defendant’s details should not be suppressed, and that the community should know about the defendant because the community has the right to protect itself against the defendant in the way that she did not when she was attacked and thought she was going to die at the hands of the offender.

Judgment of Harrison J in 2017 revoking the interim non-publication order

74. Justice Harrison referred to the evidence of the threats to the defendant in custody and to his family and friends. His Honour noted that the problems for his family and friends died down over a time. It was also noted that the defendant said since he was released from custody he had not received any threats.

75. Justice Harrison also referred to the details of the media searches and noted that all the material contained details and repetitive references to the defendant and his criminal activities. He was referred to by name and several of the articles contained photographs of him as well.

76. Before Harrison J, the defendant relied upon s 8(1)(a) and (c) of the Act. His significant contention was that he feared for his safety and such an order was necessary to protect him from physical harm. He also referred to his concern about his family and friends. As to the submission that an order was necessary for the purposes of preventing prejudice to the administration of justice, he contended that the prospect of vigilantism would be heightened by any further publication, with the increased prospect of attacks upon him becoming a reality.

77. He also emphasised that one of the objects of the HRO Act was to encourage high risk sex offenders to undertake rehabilitation, and such rehabilitation was in the interests of the community.

78. The media organisation argued before Harrison J that the order should be revoked because it was not necessary, and it would be futile as there was already so much readily accessible information in the public domain. There were also three judgments on the Supreme Court Caselaw website which were in his name and contained full details of his offending. Further, s 8(1)(a) had no application as it was concerned with the “administration of justice” rather than the more general concept of the “interests of justice”. As no proceedings were currently on foot, the concept of the administration of justice was spent.

79. After canvassing the relevant legal principles, Harrison J noted the application stood or fell on the strength of the evidence called in support. He accepted that the evidence did not show any harm was imminent. No incident of actual physical violence had been perpetrated upon him since his release. However distasteful the social media material was, it had not manifested itself in an actual incident, or a credible threat of violence. Justice Harrison stated: “[t]he position would arguably be different if the defendant were able to point to some such incident that supported the proposition that his safety would clearly be imperilled by the publication of his name or photograph.” At that moment, at its highest, the defendant was able to say he held fears for his safety.

80. Further, Harrison J was of the view that an order would have been futile, given the amount of material, including the defendant’s name, image and offence detail, that was readily available.

81. Justice Harrison also referred to the primary object of safety and protection of the community in the HRO Act, with the encouragement for offenders to undertake rehabilitation being merely “another” object. Although not argued, his Honour found it fairly arguable that the public ought, in all but the most exceptional cases, be provided with sufficient information to take steps in their own lives to protect themselves.

Judgment of Rothman J in 2020 making a non-publication order

82. In July 2020, Rothman J determined that the adverse publicity had caused the defendant to receive a number of threats, the loss of his employment, the loss of his accommodation and other detriments. Further publication would significantly impact upon the defendant’s capacity to continue any process of rehabilitation. His Honour found both the rehabilitation of the defendant and the safety of the community were facilitated by the making of a non-publication order, and that the suppression of the defendant’s name, address and workplace were necessary to protect his safety.

Submissions in relation to the current application for a non-publication and suppression order

The defendant’s submissions

83. In relation to the contention that a non-publication and suppression order is required based on s 8(1)(a), the defendant points to the historical pattern between each wave of media attention and negative events in his life which have prejudicially impacted his capacity to rehabilitate and reintegrate into society.

84. Following the revocation of the non-publication and suppression order in 2017, it is submitted that he lost his second job; he was forced to leave his apartment because of notes in the common area lifts identifying his apartment number and stating that a rapist lived there; his sister and brother-in-law ceased communicating with him; he became a recluse and rarely left the house; and he found it difficult to make friends or make eye contact with anyone. These matters in turn have had a negative impact on his prospects of rehabilitation. It is submitted that an order is necessary “to prevent prejudice to the proper administration of justice by not impeding the defendant’s rehabilitation process pursuant to the objects of rehabilitation of high-risk offenders contained in section 3(2) of the HRO Act”.

85. As to s 8(1)(c), the defendant points to the threats made which are having a significant impact on his mental health and that he has ruminated on thoughts of self-harm. The defendant also points to the attack on his car in March 2022, which “appear[ed] to be planned and motivated by vigilantism”, albeit it is accepted by him that there was nothing in evidence which suggests his number plate was ever published, and it is not clear how his vehicle was identified by the perpetrator. This attack on the car was against the backdrop of the online comments. It is ultimately contended that the orders are necessary to protect the defendant from physical harm.

86. Finally, as to s 8(1)(e), the combination of the evidence and submissions relating to the previous two grounds are relied upon, and the defendant points to the reasoning of Rothman J. The defendant submits that the only relevant circumstance not available to his Honour at the time of the 2020 judgment was that the defendant has since committed the 2022 offences and served a further term of imprisonment. It is contended that this further offending does not change the objects of the HRO Act, nor diminish the emphasis to be placed on the rehabilitation of the defendant.

The NMO’s submissions

87. After setting out the relevant case law, the NMO submitted that the “high-water mark” of the defendant’s 2017 evidence was that after he was released from custody, he had suffered no physical assault, but that he held “real concerns” about being assaulted if his name or image was published by the media. The defendant’s 2020 evidence was that between 2018 and 2020 he had lost contact with a sister, struggled with his mental health, feared being recognised and suffered verbal and/or physical abuse, and feared losing his job should there be any more media coverage.

88. The NMO contended that the defendant’s then-solicitor’s 2020 affidavit revealed, in summary: one post on Facebook that generated six abusive comments; 18 media articles that comprised a fair report of criminal proceedings concerning the defendant between April and August 2018; one abusive comment in 2018 on the Facebook page for 7News Sydney; and one post on Facebook that generated four abusive comments.

89. The NMO summarised the 2024 evidence as follows. Upon being informed that the State had applied to extend his ESO for three years, the defendant immediately held concerns that he would face a wave of media attention, and also feared that his “image, and residential address would be broadcasted all over Australia”. The height of the evidence was the vandalization of his car whilst in prison, and that shortly after his arrest for the 2022 offences, he suffered verbal abuse on remand. Further, the defendant’s solicitor’s evidence about the media was that, in summary, in May 2022, there were two print articles in the media that comprised a fair report of criminal proceedings concerning the defendant; two videos published by 7News on its Facebook page that had generated 19 comments of concern to the defendant; and the March 2022 car defacement.

90. The NMO submits that the evidence is insufficient to surmount the high test of necessity with respect to the administration of justice, safety and public interest grounds.

Consideration

91. The centrality of the principle of open justice is captured in s 6 of the Act, which relevantly states:

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.

92. Section 7 provides the power to make a suppression order or a non-publication order:

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.

93. Further, as can be seen from s 8 (set out, in part, at the beginning of this judgment), the gravamen of making an order is that it be “necessary”. As set out in AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 at [55]—a judgment by the Court of Criminal Appeal comprising Hoeben CJ at CL, Price and Adamson JJ—citing with approval, Basten JA’s analysis of the word “necessary” in the context of s 8 of the Act in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [46]:

“The meaning of ‘necessary’ depends on the context in which it is used. In s 8(1), it is used in relation to an order of the court, or, in practical terms, a proposed order, because it identifies a standard as to which the court must be satisfied before making an order. In each paragraph of that provision, the word ‘necessary’ is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In par (a), the purpose of the order will be ‘to prevent prejudice in the proper administration of justice’. That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree: the proposed order may diminish a risk of prejudice or it may obviate the risk entirely. All of these variables may affect what is considered ‘necessary’ in particular circumstances.”

94. The judgment in AB (A Pseudonym) v R (No 3) continues at [56]-[58] to consider the meaning of necessary in s 8(1)(c) of the Act. The Court endorses the “calculus of risk” approach over the “probable harm” approach.

95. The calculus of risk approach requires the Court to consider the nature, imminence, and degree of likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary, even if the risk does not rise beyond a mere possibility. The Court at [58] states:

“The evident purpose of s 8(1)(c) is to provide a mechanism to protect the safety of persons who would otherwise be endangered by publication of proceedings in accordance with the principles of open justice.”

96. The Court endorsed the remarks of Nettle J sitting as a single justice in the High Court in AB (a pseudonym)vCD (a pseudonym) [2019] HCA 6; (2019) 93 ALJR 321 at [15], where his Honour stated:

“The criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person. And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence. […] because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of ‘necessary to protect the safety of any person’ that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.”

97. It has also been observed in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [31] (per Bathurst CJ and McColl JA), that:

“Significantly, an order is not ‘necessary’ if it appears to the court ‘to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as a result of some ‘balancing exercise’, the order appears to have one or more of those characteristics”.

98. It is for the applicant to satisfy the Court that an order on one of the grounds in s 8 is necessary.

Section 8(1)(a) – administration of justice ground

99. The defendant’s contention is that the undermining of his opportunity for continued rehabilitation by new media publicity is such that an order is “necessary” to prevent prejudice to the proper administration of justice.

100. In my view, this ground must fail.

101. As noted by Bathurst CJ and McColl JA in Rinehart at [39], the “administration of justice” is a multi-faceted term. It can be seen, however, from a review of the authorities that it must involve, at its core, the proper functioning of the court in the context of court proceedings. As noted in [32] of Rinehart in the discussion of open justice:   

“It is unnecessary to add to the large body of judicial opinions discussing the concept. It is sufficient, in our view, to illustrate the proposition embedded in s 6 by referring to Lord Atkinson’s statement in Scott v Scott [1913] AC 417 at 463, that ‘in public trial is to [be] found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.’”

102. Traditionally, matters involving a consideration of prejudice to the administration justice contemplate, for instance, hardship to an informer, security officer or blackmail victim (or analogous categories of witnesses). This is because, without protection from publicity, the future supply of information from such persons would end or would be impeded and it would be more difficult to obtain from such persons the evidence necessary to bring offenders to justice: Rinehart at [40].

103. Accordingly, the contention by the defendant (even taking his argument at its highest) that unless an order is made the defendant’s rehabilitation process would somehow be impeded is not relevant to an argument based upon s 8(1)(a). Although the defendant’s rehabilitation is part of what the high risk offender proceedings are aimed towards (albeit the primary object is to ensure the safety and protection of the community, with merely “another” object being to encourage high risk offenders to undertake rehabilitation), any interference with the rehabilitative process is extrinsic to the administration of justice as that concept is understood.

Section 8(1)(c) – safety of any person ground

104. The only evidence tendered in support of the contention that the defendant had contemplated self-harm was his affidavit containing his self-reported account. No expert evidence was tendered, despite the apparent ready availability of such evidence from the defendant’s treating psychologists upon whom he attends every fortnight.

105. As stated by McHugh JA in John Fairfax & Sons v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477:

“[T]here 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”.

106. Further, I respectfully agree with the observation of Cavanagh J in A Lawyer (a pseudonym) v Director of Public Prosecutions NSW [2020] NSWSC 1713 at [84]:

“When considering the safety ground in the context of a risk of self-harm, there needs to be some expert evidence that enables the Court to assess the likelihood and gravity of the risk.”

107. Given the lack of evidence from any expert, I am unable to determine that the defendant’s risk of self-harm is likely or that it amounts to a threat to his life.

108. As to the risk of physical harm from others, the evidence rises no further than to indicate that there have, in the past, been some unpleasant online threats, and damage to his vehicle, with the word “RAPIST” marked on it. As to the online threats, they stopped after a period of time, and they never manifested in any physical violence towards the defendant. Whilst the defendant says he has limited his activities, it can be seen that he still regularly goes out in public, for shopping and for his appointments with his psychologists. Despite this regular appearance in public, there has never been any credible threat of violence nor any actual incident involving his physical safety.

109. As to the vehicle incident, it is apparent that this occurred near the defendant’s place of employment, which was the location of his arrest for the further sexual offending in 2022. Rather than the evidence establishing that the damage to the car occurred because of media publicity (of which there had been none since 2018), it would appear much more likely that a person associated with his workplace, who knew the owner of the car, was responsible. Further, the evidence shows that this was an isolated incident, and nothing has happened since that date.

110. In my view, there is no imminent threat to imperil the defendant’s safety making it necessary to make a non-publication or suppression order. The evidence goes no higher than establishing the defendant may have a belief that he may be assaulted. This is insufficient. The evidence does not satisfy me that the reporting of the third ESO application would bring about the possibility of harm of such gravity and likelihood that without the order sought, the risk of prejudice to the safety of the defendant would range above the level that can reasonably be regarded as acceptable. This ground must fail.

Section 8(1)(e) – public interest ground

111. The defendant relies on the combination of both the grounds above to establish this ground.

112. As identified by Brereton J in Welker v Rinehart [2011] NSWSC 1094 at [8], this ground requires an evaluation of three concepts:

“[F]irst that it is necessary in the public interest for a suppression order to be made; secondly that that public interest outweighs the public interest in open justice (which is, by s 6, a primary objective of the administration of justice); and thirdly, that the imbalance in favour of suppression be significant , that is to say that the mere tilting of the balance ‘ever so slightly’ in favour of suppression would be insufficient to justify the making of an order. And as Mr Dawson also emphasises, John Fairfax Publications Pty Ltd and Another v District Court of New South Wales and Others (2004) 61 NSWLR 344 (at 365-6) illustrates that at common law, where the test was also one of ‘necessity’, a high degree of certainty is required - not satisfied in that case by a finding that publication ‘could and most probably would’ affect the impartiality of jurors’”. (Emphasis in original.)

113. The defendant has not specifically grappled with these concepts. In any event, none of the matters relied upon by the defendant surmount the test of necessity.

114. Whilst, on one view, it may be desirable for the defendant to continue his rehabilitation program unaffected by further publicity, it cannot be said to be necessary. Further, it can be seen that when he was previously given the benefit of the Rothman J non-publication order in 2020, ostensibly to assist him in his rehabilitation, he still re-offended in a significant manner against an unsuspecting female member of the public in a most frightening and serious fashion.

115. In addition, it can be seen from Wilson J’s 2018 reasons (above) that the 16 year old girl was aware of the defendant’s criminal antecedents when he assaulted her. Her reaction to his assault, given this awareness, may well have been protective for her from being further assaulted. It can be inferred from the evidence that that publicity likely helped to escalate the matter such that it was reported to the police, leading to him being charged.

116. It can also be noted that the defendant’s offending has occurred, in all cases, in public, and in almost all cases after the defendant has followed a woman for a period of time. Given this aspect of the defendant’s serial offending, it cannot be said that the media reports would be simply satisfying some prurient interest in the activities of this defendant. To the contrary, it could be seen that it may well be in the public interest for members of the public (especially females) to know about the defendant’s past crimes and the plaintiff’s third ESO application to assist in protecting themselves, or to immediately report concerning behaviour before it escalates to something more serious. Whilst I have come to this view independently, I also note that the victim’s evidence tendered in these proceedings shows she is of that view.

117. Accordingly, I am not of the view that a non-publication or suppression order is otherwise necessary in the public interest pursuant to s 8(1)(e).

118. Given the findings I have made, it is not necessary to deal with the NMO’s argument about futility, other than to note this. There is clearly already an abundance of material about the defendant and his offending in the public domain. Whilst in these circumstances, if the order was otherwise “necessary” on one or more of the grounds in s 8(1), there may still have been some utility in making a non-publication and/or suppression order because of the “dampening effect” of an order (see AB (A Pseudonym) v R (No 3) at [116]). However, that consideration does not arise in this case because necessity has not been established upon any of the grounds relied on.

Order

119. Accordingly, I make the following orders:

1. The interim suppression and non-publication order of Campbell J of 31 May 2024 is revoked.

2. The defendant’s Notice of Motion is dismissed.

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Amendments

13 August 2024 - Representation amended.

Decision last updated: 13 August 2024