State of New South Wales v Liddington (No 1) (Media Application)

[2025] NSWSC 461

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Liddington (No 1) (Media Application) [2025] NSWSC 461

Hearing dates:

17 April 2025

Date of orders:

14 May 2025

Decision date:

14 May 2025

Jurisdiction:

Common Law

Before:

Coleman J

Decision:

(1) Access to the exhibits 1-7 identified in the media request dated 31 March 2025 is denied.

(2) Order (18) made on 30 September 2024 is varied so as to allow the media applicant to have access to Exhibit 8.

(3) Non-publication orders made in accordance with the Short Minutes of Order dated 8 May 2025.

Catchwords:

CIVIL LAW – high risk offender proceedings –terrorism - media application to access file – where documents tendered in open court – exercise of discretion – reports of experts – summaries of phone calls from jail - desirability of high risk offenders providing honest history – where access may frustrate purposes of the act – where extensive reasons are given in preliminary and final judgment – where access to exhibits is not required for fair and accurate reporting – where non-publication orders made under the Court Suppression and Non-Publication Orders Act 2010

Legislation Cited:

Terrorism (High Risk Offenders) Act 2017 (NSW)

Practice Note SC Gen 2 “Supreme Court - Access to Court Files”

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases Cited:

IH Insurance Limited (In Liquidation) v General Re Insurance Australia Limited [2006] NSWSC 128

John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101

R v Benbrika and Ors (No. 26)

R v Dirani (No. 33) [2019] NSWSC 288

R v Hussein Lalee (No 2) [2024] NSWSC 1336

R v Jovanovic (2014) 285 FLR 108; [2014] ACTSC 98

R v Xu (No. 1) [2005] NSWSC 73

State of New South Wales v Bowdidge (No 2) (Application by Nationwide News Pty Ltd) [2020] NSWSC 159

State of New South Wales v Liddington (Preliminary) [2025] NSWSC 10

Stinson (pseudonym) v Nationwide News Pty Ltd [2022] NSWCCA 235

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
7NEWS (Applicant)
Desmond Liddington (Defendant)

Representation:

Counsel:
E Lovell-Jones (Plaintiff)
J Brock (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid Commission NSW (Defendant)

File Number(s):

2024/351649

Publication restriction:

Nil

JUDGMENT

1. In these proceedings, the plaintiff sought, and the Court made, an order that Mr Desmond Liddington (“the defendant”), be subject to an extended supervision order (“ESO”) and be subject to certain conditions for the period of the ESO pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (“THRO Act”) (see: State of New South Wales v Liddington (Final) [2025] NSWSC 417).

2. On 1 October 2024, the Court made orders requiring leave of a Judge of the Court for a non-party to access the court files and requiring notification to the parties for any such application. This granted the parties an opportunity to make submissions on whether access ought to be granted.

3. On 31 January 2025 the Court ordered that the defendant be subject to an interim supervision order (“ISO”) pursuant to the THRO Act: State of New South Wales v Liddington (Preliminary) [2025] NSWSC 10. An ESO was made on 1 May 2025.

4. On 31 March 2025 an application was made by a member of the media for access to exhibits 1-8 of the court file. Those exhibits were tendered in the hearing concerning final relief which commenced on 31 March. The reason given for seeking access to those exhibits was to ensure fair and accurate reporting.

5. On 8 April 2025 the matter came before me and counsel for the defendant, Mr Brock, indicated that access to the requested material was opposed. Counsel for the plaintiff indicated they neither consented to, nor opposed, the application for access.

6. I stood the matter over until 17 April 2025 with a direction that the media applicant be notified so that submissions could be made on the media applicant’s behalf in respect to the question of access. The media applicant indicated that it did not wish to make any submissions or appear on 17 April. The matter thus proceeded on that day with no appearance by the media applicant. The plaintiff maintained its neutral position.

7. The exhibits are:

1. Exhibit 1: Statement of Agreed Facts dated 3 December 2024;

2. Exhibit 2: Supplementary Statement of Agreed Facts dated 26 March 2025;

3. Exhibit 3: Expert Report of Dr Katie Seidler dated 12 March 2025;

4. Exhibit 4: Expert Report of Dr Chelsey Dewson 14 March 2025;

5. Exhibit 5: Supplementary Expert Report of Dr Katie Seidler dated 24 March 2025;

6. Exhibit 6: OTS summary dated 26 March 2025;

7. Exhibit 7: PTS summary dated 29 November 2024; and

8. Exhibit 8: Summary of Offender’s Criminal History WA and NSW.

Some Relevant Principles

8. There is no right for the media or a member of the public to access Court files or documents. As noted by Hamill J in State of New South Wales v Bowdidge (No 2) (Application by Nationwide News Pty Ltd) [2020] NSWSC 159 at [7]:

The decision whether to grant access to a third party involves the exercise of a broad discretion, the factors relevant to which will vary from case to case and depend on the individual circumstances of each application.

9. Requests for access to court files or documents are in general guided by Practice Note SC Gen 2, “Supreme Court - Access to Court Files” (“the PN”). Determinations made under the PN are discretionary: see Stinson (pseudonym) v Nationwide News Pty Ltd [2022] NSWCCA 235 at [31]. Here, the orders made on 1 October 2024 re-enforced the requirements of the PN.

10. Paragraphs 6 and 7 of the PN state:

6.   Access to material in any proceedings is restricted to parties, except with the leave of the Court.

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

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

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

*   material that was admitted into evidence; and

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

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

11. Open justice is an essential component of the Australian legal system and is a guiding principle in the consideration of media applications: see R v Hussein Lalee (No 2) [2024] NSWSC 1336, R v Dirani (No. 33) [2019] NSWSC 288 (“Dirani”), John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101. Johnson J in Dirani at [36]-[38] said:

36 The principle of open justice is a fundamental axiom of the Australian legal system and it is appropriate to have regard to the principle when determining applications for access to exhibits: John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 (“Fairfax v Ryde Local Court”) at 525 [60].

37 Neither the media, nor the public at large, have a right of access to court documents. The open justice principle is a principle and not a freestanding right. There is no common law right to obtain access to a document on the court record: Fairfax v Ryde Local Court at 521 [29]-[31].

38 There is a public interest in facilitating fair and accurate reporting of proceedings in court: Fairfax v Ryde Local Court at 523 [47]. 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, and nothing should be done to discourage fair and accurate reporting of proceedings: John Fairfax Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at 353 [20]; Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at 321 [33]. It has been said that the media are “the eyes and ears of the general public”, not all of whom can attend court proceedings: Attorney General v Guardian Newspapers (No. 2) [1990] 1 AC 109 at 183. An application for media access to exhibits should proceed on the prima facie assumption that a fair and accurate report of the trial will occur: R (Cth)v Elomar and Ors (No. 3) [2008] NSWSC 1443 at [24].

12. His Honour went on to note at [48]-[50]:

    48 Where, as in the present case, the media applications for access are made to the Judge who is (or has) presided at the trial or sentencing hearing, it should be kept in mind that the Judge has control of the proceedings. Further, as Grant CJ observed in Registrar of the Supreme Court (NT) v Nationwide News Pty Limited at [25], the Judge “will have read or otherwise viewed the exhibits adduced during the proceedings and be familiar with the forensic and public interest considerations involved” with these features to be applied in determining any media application.

    49 Where application is made by the media to the trial or sentencing Judge, whether under Practice Note SC Gen 2 or otherwise, the Court will exercise a discretion in determining whether access will be granted. The exercise of discretion will take into account all relevant considerations, including the principles referred to at [36]-[38] above, together with other features which bear upon the particular exhibit in the case at hand. Courts have recognised and emphasised the existence of such a discretion, in particular where the media seek access to video, audio or photographic exhibits for the purpose of copying and subsequent publication and broadcast: R v Xu (No. 1) at 20-24 [18]-[43]; R v Benbrika and Ors (No. 26) [2008] VSC 452 at [4]-[8]; R v Sam (No. 5) at [6]; R v Sam (No. 16) at 141 [12]; Registrar of the Supreme Court (NT) v Nationwide News Pty Limited at [29] and R v Gatt (No. 5) at [6].

    50 Further, the exercise of discretion to be undertaken is not a narrow process. The media application in this case is not merely to inspect or view the exhibits so that a written description of their contents can be published as part of a fair and accurate report of the evidence in the trial: cf R v Abdallah (No. 3) at [19]. The application is to copy the exhibits for the purpose of electronic publication and broadcasting. There are additional factors to be considered on such an application.

13. His Honour rejected a prima facie right to access exhibits, save the existence of “wholly exceptional circumstances”. (cf: Kirby J in R v Xu (No. 1) [2005] NSWSC 73 at [23], [26]).

14. With respect to applications made under the PN, Hoeben J (as his Honour was then) in IH Insurance Limited (In Liquidation) v General Re Insurance Australia Limited [2006] NSWSC 128 stated at [21]-[22]:

21 As a start point I do not accept the proposition put forward by the applicants that the principle of open justice requires that access be granted unless there are exceptional circumstances why it should not be granted. This matter was considered in John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512 at [29] where Spigelman CJ said:

‘Neither the claimant, nor the public at large, have a right of access to court documents. The ‘principle of open justice’ is a principle, it is not a freestanding right. It does not create some form of freedom of information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access. However, it remains a principle and not a right.’

In that judgment the Court noted that there was no common law right to obtain access to a document filed in proceedings and held as part of a court record.

22    To the extent that the Practice Note provides guidance on this issue, it does not assist the applicants in the absence of the applicants putting forward a proper reason for why they should have access to the documents sought at this time.

Submissions

15. The plaintiff made no submissions for or against access.

16. The defendant opposes allowing access to portions of Exhibit 1 and Exhibits 2,3,4,6,7 for the following reasons:

1. The content of these exhibits does not significantly facilitate fair and accurate reporting of the proceedings in Court.

2. Access to such content, particularly in Exhibits 1 – 5, is inconsistent with the legislative framework aimed at promoting meaningful engagement with the expert reporting process.

3. The exhibits sought include personal details and information – including of third parties.

4. There is a public interest in promoting candour from defendants in such applications that may be discouraged with the unnecessary release of sensitive information.

17. I will deal with the question of access to the various exhibits in the same order as in the defendant’s written submissions.

Exhibits 3-5: expert reports of Dr Dewson and Dr Seidler

18. Dr Dewson and Dr Seidler are forensic psychologists appointed by orders made in the preliminary hearing to assess the defendant.

19. I agree with counsel for the defendant that these reports cover content which does not meaningfully contribute to fair and accurate reporting on the matter. In particular, the reports traverse information pertaining to the defendant’s background and sensitive personal circumstances. Counsel also pointed to s 71 THRO Act which sets restrictions on the dissemination of such reports, even by the plaintiff. I accept that this recognises the often personally sensitive content in reports of this nature. By reason of the nature of the application under the THRO Act, the reports also contain information relating to extremism which should be disseminated with caution.

20. I accept the defendant’s submission that the restrictions in the THRO Act correspond with the public interest in encouraging defendants to engage with the experts and participate in the interview and assessment process in an open and meaningful way. Publication of highly personal information may not be compatible with the mitigation of the risks addressed by the THRO Act.

21. It is also correct that, in so far as the reports are considered relevant to the disposition of the application, the media will have the benefit of the published reasons (both in the preliminary and final application) which will address information salient to the application. As such, access to the reports themselves is not necessary to ensure accurate or fair reporting.

22. Additionally, these reports contain information concerning third parties, notably the defendant’s partner, her children and the defendant’s brother. The privacy of persons not involved in the matter in question is a consideration which bears upon the exercise of discretion: see Dirani at [59]; R v Benbrika and Ors (No. 26) at [7]; R v Jovanovic (2014) 285 FLR 108; [2014] ACTSC 98 at 115 [42]- [43].

23. Exhibit 5 is the supplementary report of Dr Seidler dated 24 March 2025, prepared in order to correct an error in her primary report. Although counsel for the defendant do not mention it specifically, I consider it falls into the same category as the aforementioned reports.

24. I do not consider access should be granted to these reports.

Exhibit 2: Supplementary Statement of Agreed Facts dated 26 March 2024

25. Given the primary purpose of Exhibit 2 was to consolidate the findings of the expert reports of Dr Seidler and Dr Dewson (which came after the preliminary hearing), counsel submitted the same arguments concerning access apply. Additionally, psychological notes recorded on the OIMS Case notes systems were included. Counsel for the defendant identified the public interest in caution with respect to unnecessary disclosure of sensitive information which arose in a therapeutic context.

26. Again, in so far as is necessary, the supplementary agreed facts contained in this exhibit will be referred to in the Court’s reasons. Access to them is not required to ensure fair reporting.

27. I accept the submissions of counsel for the defendant. Access will not be granted to this exhibit.

Exhibit 1: Statement of Agreed Facts dated 3 December 2024

28. Counsel submitted that much of the content in Exhibit 1 is reflected in the reasons given for the ISO. He did identify, however, that parts of the facts also include information from psychological risk assessments, as well as sensitive and personal information concerning the defendant’s early life, prison calls (which could be seen to promote an extremist group), third party information and psychological and risk assessment which include sensitive personal information.

29. This exhibit was used extensively in the preliminary reasons whereby the ISO was made. In so far as it contains the materials identified by counsel for the defendant, not otherwise included in the preliminary reasons, for the reasons he submits, access should not be granted. Otherwise, as the document was relied upon and repeated to a large degree in the preliminary reasons, access is not required for fair and accurate reporting.

Exhibit 6-7: OTS summary dated 26 March 2025 and PTS summary dated 29 November 2024

30. These exhibits contain extracts and summaries from calls made by or to the defendant whilst he was in custody. They are the Offender Telephone System (“OTS”) which summarise calls mostly between the defendant and his partner. They are sometimes of a personal and intimate nature. The Prisoner Telephone System (“PTS”) also contains historical calls with another inmate in Western Australia. Parts of the summaries may be considered offensive and confronting both in language and content – the latter involving extremist views and statements.

31. Counsel for the defendant conceded that these exhibits did not attract the same considerations as the psychological reports. However, he submitted that access to the summaries may frustrate the primary purpose of the THRO Act given they involve expressions of extremist right-wing ideology. Additionally, he submitted it may also undermine the secondary purpose of rehabilitation given the defendant has expressed a desire to move away from those ideologies.

32. I accept the submissions of counsel for the defendant. The preliminary and final reasons will refer to some of this content, although in a much more limited way than other exhibits such as the agreed facts. I do not consider that access to the balance of the summaries is in any way necessary to ensure fair and accurate reporting.

Exhibit 8: Summary of Offender’s Criminal History WA and NSW

33. No objection was taken to access being granted to Exhibit 8, a summary of the defendant’s criminal history prepared by the plaintiff. Access will be granted to that exhibit.

Additional Non-Publication Orders

34. Following the handing down of the judgment making the ESO, the defendant sought orders that parts of the evidence and the parties’ submissions be the subject of non-publication orders under the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the CSNPO Act”). Short minutes of order were provided to the Court setting out the parts of the evidence, the transcript of proceedings and submissions for which non-publication orders were sought. The plaintiff took the position that it did not oppose the relief sought except for a few references to parts of the evidence.

35. I heard submissions from the parties on 7 May 2025.

36. In deciding whether to make non-publication orders under the CSNPO Act, the Court must take into account that a primary objective of the administration of justice is the public interest in open justice: s 6 CSNPO Act.

37. Section 8 of the CSNPO Act provides the grounds for making a non-publication order under the Act. In this case, the defendant relies on s 8(1)(c)- that the orders are necessary to protect the safety of any person, or (e)- that it is otherwise necessary in the interests of justice for the orders to be made and that the public interest significantly outweighs the public interest in open justice.

34. With respect to the construction of s 8(1) of the CSNPO Act, Dhanji J in R v Walker (No 1 – Suppression and related orders) [2025] NSWSC 298 said:

… Although it is not sufficient that the orders are merely reasonable or sensible, the word “necessary” should not be given a narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8], [46].

39. I have reviewed the parts of the evidence and submissions for which the defendant seeks NPO’s. They concern private details of the defendant, his partner and her children, including names and addresses. Names of other persons also appear. I accept it is necessary for the safety of those persons, including the defendant, that there be a non-publication of these matters.

40. Further, one of the objects of the THRO Act is to encourage the rehabilitation of the defendant. He is subject to strict supervision. Conditions have been imposed on him with the ESO about his movements and general living circumstances. There is no need for the public to know details of where he loves and what he does. The identity of the child of his partner should also not be disclosed. There is no public interest in those matters being disclosed and generally available.

41. The plaintiff did oppose two parts of the evidence being the subject of NPO’s to the extent requested by the defendant. The first is a schedule of the defendant’s movements when he is subject to the ISO. One of the conditions of that order was that he be subject to very strict scheduling. This part of the evidence is the schedule of the defendant for a period. It included details of where he went and when, and other details relating to his partner and her daughter.

42. There was a debate in the ESO hearing as to the nature of any scheduling condition that should be made. The plaintiff sought a stricter conditions (although a little less strict than that imposed for the ISO) and the defendant sought a less strict “dry” scheduling conditions. I acceded to the defendant’s submissions.

43. The plaintiff submitted that the parts of the evidence that disclosed the nature of the strict scheduling should remain with minor redactions. The plaintiff submitted that there was a public interest in the different types of scheduling being able to be contrasted and appropriate protections can be made with redactions of names and other details. The defendant said it all should be subject to a NPO. I agree. There is no public interest in the details of the specifics of the defendant’s past movements being made public. I do not accept there is a public interest in the different types of scheduling being able to be compared and contrasted. There will be a NPO over this evidence.

44. Mr Lovell-Jones, counsel for the plaintiff, accepted that if I was against his argument on the scheduling issue, the same result should follow for the other material which was originally the subject of dispute. I agree and there will be a NPO over this evidence.

45. There will be NPO’s for the evidence, parts of submissions and transcript as identified in the Short Minutes of Order dated 8 May 2025. The NPOs will apply throughout the Commonwealth of Australia for a period of 30 years.

Orders

46. For the above reasons, access to the exhibits 1-7 identified in the media request dated 31 March 2025 is denied.

47. Order (18) made on 30 September 2024 is varied so as to allow Leonie Ryan, a journalist employed by 7NEWS, to have access to exhibit 8.

48. Non-publication orders made in accordance with the Short Minutes of Order dated 8 May 2025.

Amendments

07 July 2025 - Formatting amendment to [14]

Decision last updated: 07 July 2025