State of New South Wales v Wilmot

[2019] NSWSC 1002

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Wilmot [2019] NSWSC 1002
Hearing dates:	21 June 2019
Date of orders:	21 June 2019
Decision date:	21 June 2019
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	(1) I revoke the interim non-publication orders made on 17 June 2019; (2) The defendant’s notice of motion filed in court on 17 June 2019 is dismissed
Catchwords:	SUPPRESSION ORDERS – Court Suppression and Non-Publication Orders Act 2010 – interim orders previously made pursuant to s 10 of the Act on limited basis in the absence of properly prepared application and evidence set aside - high risk sex offender – defendant’s application for orders opposed by the Crown – notice of motion dismissed
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW)
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Wayne Wilmot (Defendant)
Representation:	Counsel: D Kell SC with E Sullivan (Plaintiff) P White (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid (NSW) (Defendant)
File Number(s):	2019/97095
Publication restriction:	Nil

Judgment

1. HER HONOUR: On 17 June 2019 in the context of an application under the Crimes (High Risk Offenders) Act 2006, I dealt with a late and inadequate application for suppression orders, and in the alternative, interim non-publication orders pursuant to s 10 of the Court Suppression and Non-Publication Orders Act2010 (NSW) (the Act).

2. I made interim orders (with short reasons provided to the parties) because the circumstances and gamut of previous orders made in other Courts was unclear and due to the lateness of the application and the disorganised way in which it was presented, there was insufficient material upon which to properly assess the basis and merit of the application.

3. Three affidavits from the solicitor for the defendant have been tendered and I have been provided with written submissions from both parties.

The applicant defendant’s submissions

4. The application by the defendant is now limited to an order seeking ongoing use of the pseudonym “XY” for the defendant for these proceedings and that his identify not be published, including his image.

5. The submissions state that the defendant relies on the ground set out in s 8(1)(e) of the Act – that the order 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”.

6. It is submitted that the Court should bear in mind that it is at this stage unclear, regardless of what order the court makes on an interim basis, whether the final order will be an extended supervision order or a continuing detention order and that the Court should bear in mind that publishing the defendant’s identity and proceedings would impede his rehabilitation and his “attempts to take steps to resume something approaching a normal life after 21 years in prison”.

7. Three cases were relied upon in support of the application. None of them are germane to the defendant’s circumstances at all, nor do they provide any support for the order sought.

8. I have reproduced the plaintiff’s written submissions in full in this judgment as there is simply no benefit to be obtained by my attempting to summarise, reformulate or improve upon them. They are a model of their kind.

Plaintiff’s submissions

“Overview

1. The State of New South Wales (the Plaintiff) opposes: (i) the orders sought in the Defendant’s Notice of Motion, filed in court on 17 June 2019, seeking non-publication and suppression pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Suppression Act); and (ii) the making of final orders in the form of the three interim orders made by the Court, pursuant to s 10(1) of the Suppression Act, on 17 June 2019. The Plaintiff contends that:

a. in so far as the defendant relies on the fact that he was a juvenile when he committed the 1988 offences, [1] the non-publication and/or suppression order sought is unnecessary and inappropriate having regard to s 15A of the Children (Criminal Proceedings) Act 1987;

1. See Submissions of Defendant dated 7 June 2019 at [24].

b. in so far as the defendant relies on the existence of non-publication and/or suppression orders previously made in the District Court (by Marien DCJ and Townsden DCJ, respectively), [2] the orders now sought under the Suppression Act are unnecessary, given extant orders with which the media is required to comply. Further, it would be an inappropriate exercise of power for the Court to make orders in such circumstances;

2. Ibid. See also Supplementary Submissions of Defendant provided to the Court on 17 June 2019 at [2](b).

c. there is no proper evidentiary foundation upon which the Court would find it necessary, within the meaning of the Suppression Act, to make the orders sought;

d. there is a compelling public interest, consistent with both the paramount principle of open justice (Suppression Act, s 6) and the primary objective in the Crimes (High Risk Offenders) Act 2006 (the CHRO Act) of ensuring the safety and protection of the community, that media reporting of proceedings under that legislation be permitted in all but the most exceptional cases.

Relevant background

2. By Summons filed on 28 March 2019, the Plaintiff seeks orders against the Defendant under the CHRO Act.

3. By paragraphs 1 to 3 of the Notice of Motion dated 17 June 2019, the Defendant moves the Court for orders pursuant to the Suppression Act as follows:

1 An Order, pursuant to Section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that no publication be made of the evidence and submissions in the Supreme Court of New South Wales, Common Law Division on Monday 17 June 2019, or this judgment, until further order;

2    Order 1 above is to apply throughout the Commonwealth and is made on the basis of necessity in the public interest significantly outweighing the public interest in open justice;

3 In the alternative to Order 1, pursuant to Section 7 of the Court Suppression and Non- publication Orders Act 2010 (NSW) that there be no publication of the identity of the defendant and that the defendant be referred to by a pseudonym (other than his initials) until further order.

4 In the alternative to Order 1) an Interim Order pursuant to section 10 of the Court Suppression and Non Publication Orders Act 2010 (NSW) that publication be made of the evidence and submissions in the Supreme Court of New South Wales, Common Law Division on Monday 17 June 2019, or this judgment, subject to revocation by the court and until the application for Orders 1 and 3 are determined;

5 In the alternative to Order 4, pursuant to Section 10 of the Court Suppression and Non Publication Orders Act 2010 (NSW) that there be no publication of the identity of the defendant and that the defendant be referred to by a pseudonym (other than his initials) subject to revocation by the court and until the application for Orders 1 and 3 are determined;

6    Such other orders as the court considers appropriate."

4. On 17 June 2019, the following interim orders were made by her Honour Justice Lonergan pursuant to s 10 of the Suppression Act:

1 Pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and until further order, no publication be made of any material identifying the defendant in connection with the offences the subject of sentencing by Judge Townsden on 27 November 2015 (no. 2013/00203715);

2 Pursuant s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and until further order, no publication be made of any material identifying the defendant in connection with the offences the subject of sentencing by Judge Marien SC on 27 February 2006 (no. 05/21/0187);

3 Pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and until further order, the defendant to be referred to by the pseudonym “XY” and that there be no publication of the identity of the defendant (including his image).

5. The Defendant seeks that interim order 3 be extended to cover the whole of the current proceedings, pending final determination. [3] Although the position of the Defendant is not clearly stated, it appears that the Defendant presses the orders sought in paragraphs 1 to 3 of the Notice of Motion, as well as (or alternatively) final orders in the form of the interim orders that the Court made on 17 June 2019. The Plaintiff contends that the Court should not make the suppression and non-publication orders sought by the Defendant and should revoke the interim orders.

3. Submissions of Defendant on use of a pseudonym dated 19 June 2019.

The legislative scheme

6. Part 2 of the Suppression Act sets out the machinery provisions for the making of suppression and non-publication orders. Section 6 specifies the fundamental objective of open justice to which the Court must have regard as follows:

“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. Section 7 of the Suppression Act provides:

“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. Section 8 of the Suppression Act specifies the grounds for the making of orders:

“(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.”

9. Pursuant to s 10 of the Suppression Act, the Court may make interim suppression or non-publication orders, without determining the merits of the application, pending final determination of the application.

Part 2, Division 3A of the Children (Criminal Proceedings) Act 1987

10. Section 15A of Division 3A of the Children (Criminal Proceedings) Act 1987 (the CCP Act) relevantly provides as follows:

“15A Publishing and broadcasting of names prohibited

(1) The name of a person must not be published or broadcast in a way that connects the person with criminal proceedings if:

(a) the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed, or

(b) the person appears as a witness in the proceedings and was a child when the offence to which the proceedings relate was committed (whether or not the person was a child when appearing as a witness), or

(c) the person is mentioned in the proceedings in relation to something that occurred when the person was a child, or

…

(2) This section applies only to the publication or broadcast of a person’s name to the public, or a section of the public, by publication in a newspaper or periodical publication, by radio or television broadcast or other electronic broadcast, by the Internet, or by any other means of dissemination.

(3) The publication of information to an Internet website that provides the opportunity for, or facilitates or enables, dissemination of information to the public or a section of the public (whether or not the particular publication results in the dissemination of information to the public or a section of the public) constitutes the publication of information to the public or a section of the public for the purposes of this section.

(4) This section applies to the publication or broadcast of the name of a person:

(a) whether the publication or broadcast occurs before or after the proceedings concerned are disposed of, and

(b) even if the person is no longer a child, or is deceased, at the time of the publication or broadcast.

(5) A reference in this Division to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

…

(7) A person who publishes or broadcasts the name of any person the publication or broadcasting of which is prohibited by this section is guilty of an offence.

Maximum penalty: 500 penalty units (in the case of a corporation) or 50 penalty units or imprisonment for 12 months, or both (in any other case) …”.

11. In Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386, Spigelman CJ considered the statutory predecessor (s 11(1), as then enacted, of the CCP Act) to the current regime (which was in similar terms to s 15A) and relevantly said:

“[26] Section 11(1) of the Act is self-executing. The prohibition contains its own penalty in subs(3), its own exclusions in subs(4) and a mechanism for the application of those exclusions in subss(4A)-(4E). It is unnecessary and, generally, would be inappropriate, for the Court to make an order for the purpose of serving the same policy objectives as the scheme for which Parliament has legislated in s 11.

[27] It is not uncommon for the courts to make orders requiring the use of pseudonyms in cases involving children, as if to give effect to the terms of s11(1) of the Act. Section 11 confers no power to make such an order. The power may be found elsewhere, but the order itself is otiose. However, non-publication orders and pseudonym orders can be made for other purposes. This could include, as apparently was the case at the time that Sully J and Hidden J made their orders, the objective of ensuring a fair trial in subsequent proceedings for other offences, or in view of the prospect of an appeal and a new trial, with respect to the same offences. To avoid confusion, it would be preferable if a court, concerned to make the public and media aware of the operation of s 11, gave directions drawing attention to the obligation imposed by the section and indicating the manner in which the court proposed to give effect to it. If there were a separate application for a non-publication order, that could then be addressed on its merits and the Court would no doubt identify the purpose which made the order appropriate, quite apart from the statutory prohibition imposed by s 11.

[28] As set out above, s 11(4)(a) makes it clear that there is no prohibition on the publication of an official report of proceedings by the Court, which report would in the normal course contain the names of the accused, including in the very title of the case. Courts have adopted a practice of publishing only the initials of offenders, often to protect the identity of the complainants. However, courts have also adopted such a practice with a view to ensuring that the policy objectives of s 11(1) of the Act are in fact served. Publication in digital form of the judgments of the Supreme Court on the Court’s website are, by their very nature, capable of such widespread transmission that the policy objective of the Act could readily be undermined unless the Court adapted its procedures in the way it does. Such a practice does not, however, justify an order in the same terms directed to third parties.

[29] The Court should not, in the normal course, make orders of this character which carry with them the prospect of contempt proceedings of a character parallel to any proceedings for a contravention of s 11 of the Act. In my opinion, in the normal case where no issue or purpose is to be served by an order other than the purpose of protecting the identity of a child, for which s 11 makes provision, then a non-publication order should not be made. The Act should be allowed to operate in accordance with its terms and with the sanctions which Parliament has prescribed.”

12. More recently, in R v AB (No 1) [2018] NSWCCA 113 (R v AB), when the respondent sought an order under s 7 of the Suppression Act on the basis of evidence suggesting non-compliance by the media with s 15A of the CCP Act, the Court (Meagher JA, Rothman and Garling JJ) stated (at [38]):

“… The short answer to this submission is that the making of an order in either form is not necessary to prevent prejudice to the proper administration of justice. The appropriate remedy for any contravention of the prohibition in s 15A(1) is for proceedings to be brought under s 15A(7) against a person who has published contrary to that prohibition. In that circumstance, as Spigelman CJ (Basten JA and Hislop J agreeing) observed in Application by John Fairfax Publications Pty Ltd re MSK at [29], the Act should be allowed to operate according to its terms and with the sanctions which Parliament has prescribed and the Court should not make orders which carry with them the prospect of contempt proceedings of a character parallel to any proceedings for a contravention of s 15A ...”.

Applicable legal principles relating to the Suppression Act

Operation of the Suppression Act

13. In Nationwide News Pty Limited v Qaumi [2016] NSWCCA 97 (Quami), the Court of Criminal Appeal (per Bathurst CJ, Beazley P and Hoeben CJ at CL) described the interaction between the various provisions as follows:

“[17] Thus, the scheme of the Act provides by way of the interrelated provisions of ss 6, 7 and 8 for the circumstances in which a court may make an order to supress or prohibit publication of court proceedings.

[18] Section 7 confers upon a court power to make an order that prohibits or restrains the disclosure of the two categories of information identified in paras (a) and (b) of the section.

[19] Section 6 requires a court, in determining whether to make an order, to take into account the public interest in open justice as a primary objective of the administration of justice. Except to the extent that orders can only be made on the grounds specified in s 8(1)(a)-(e), the Act does not otherwise identify or preclude from consideration other objectives of the administration of justice. Nor, save to the extent that it provides that open justice is one of the primary principles in the administration of justice, does it establish a hierarchy of objectives.

[20] By virtue of s 7, the only grounds upon which an order may be made under the Act are those specified in s 8(1). Section 8(1) requires that the order made must be “necessary” to achieve the objective identified in the relevant subparagraph. It is sufficient that the order is “necessary” to achieve one of the objectives identified in paras (a)-(e) of subs 8(1), although in a particular case, the making of an order may be necessary for more than one of the matters specified in the paragraphs of the subsection.”

The paramount principle of “open justice”

14. The principle of open justice – entrenched in s 6 of the Suppression Act – is that court proceedings should be conducted in public. This principle has been described by Spigelman CJ as “one of the most fundamental aspects of the system of justice in Australia” (see John Fairfax Publications v District Court of NSW [2004] NSWCA 324 at [17]).

15. To similar effect, the Court in R v AB said:

“[28] The principle of open justice is that court proceedings should be conducted in public. As French CJ observed in Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [20], that principle is a “means to an end”. It ensures that the proceedings are “fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected” (per Gibbs J in Russell v Russell (1976) 134 CLR 495 at 520; [1976] HCA 23). Gibbs J continued: “Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character.”

[29] French CJ also observed in Hogan v Hinch at [22] that a “common law corollary of the open-court principle [is] that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings”. Two common law rules that illustrate the importance attached to the right to publish such a report of court proceedings are that its publication is not a contempt of court, even though it is likely to prejudice the fair trial of impending proceedings, and that such a report made in good faith is not an actionable defamation. Having so observed, McHugh JA concluded in John Fairfax & Sons v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 481 that the publication of fair and accurate reports is “vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice” and that in the absence of publication of reports on court proceedings there was a likelihood that they would become “the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making”.

The meaning of “necessary”

16. In considering the meaning of “necessary” in s 8(1) of the Suppression Act, the Court in Quami said:

“[22] In Rinehart v Welker [2011] NSWCA 403, at [27], Bathurst CJ and McColl JA, in considering the background to the introduction of the Act, explained the meaning of “necessary” in s 8 as follows:

“The operative condition for making a suppression order under s 8 of the CSPO Act is that it be ‘necessary’ to do so, which ‘... is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice ... ‘suggests Parliament was not dealing with trivialities’ ’: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commission were made in relation to a legislative scheme which, while it required the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act) did not contain a provision in like terms to s 6 of the CSPO Act. That provision, in our view, reinforces the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd v District Court of NSW (at [21]).” (emphasis added)”

[23] Bathurst CJ and McColl JA observed, at [28], that “necessity” was the test that had been applied by the courts in the exercise of the inherent jurisdiction to make non-publication orders: see John Fairfax Publications v District Court of NSW. Their Honours observed, at [29], that the clearest statement that the test for making a suppression order or non-publication order under the inherent jurisdiction was one of “necessity”, was to be found in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1985) 5 NSWLR 465 at 476-477. That passage, which was cited with approval in Hogan v Hinch [2010] HCA 21; 240 CLR 651 at [21], is set out below. As their Honours’ reasons also demonstrate, the requirement of necessity as the test for making any order that impinges upon the rule of open justice has a long history: see R v Macfarlane; Ex parte O’Flanagan and O’Kelly [1923] HCA 39; 32 CLR 518 at 549, cited with approval by the plurality in Hogan v Hinch at [87].

[24] Their Honours further noted, at [31], that it was not sufficient, to satisfy the test of necessity, that an order be “convenient, reasonable or sensible, or serve some notion of the public interest”. Their Honours pointed out that there was no question of engaging in a “balancing exercise”: see Hogan v Hinch at [31]”.

17. Consistent with authority, the word “necessary”, in s 8(1) of the Suppression Act, is a strong word and indicate a legislative intention that orders should only be made in exceptional circumstances; it will not suffice that an order is merely convenient, reasonable or sensible, or otherwise serves some general notion of public interest: Quami at [22], [24].

Suppression and non-publication orders in the CHRO Act context

18. In State of NSW v Kay [2017] NSWSC 274, Harrison J considered an application relying on s 8(1)(c) of the Suppression Act. Evidence was before the Court regarding extensive media coverage of the Defendant’s criminal history, together with Facebook posts of a threatening nature. The application was premised on Mr Kay’s fear for his safety and a submission that vigilantism and the prospect of reprisals would increase with further publication. Relevantly, Mr Kay also underscored that an object of the CHRO Act was to encourage offenders to undertake rehabilitation - and he argued that it was in the interests of the safety of the community for offenders to continue their rehabilitative efforts without intrusion from the media and that threats or the prospect of violence might frustrate his rehabilitation to the long term detriment of the community. Support for this submission was said to arise from the fact of Mr Kay having recently lost his job upon his employer becoming aware of his identity.

19. Justice Harrison refused to make the order sought. His Honour relevantly said, at [31], (emphasis added):

“I also bear in mind that the primary object of the Crimes (High Risk Offenders) Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. The object of encouraging such offenders to undertake rehabilitation is described less emphatically as merely another object of the Act. Although it was not in terms argued before me, it does seem fairly arguable that the primary object of the Crimes (High Risk Offenders) Act is more effectively advanced by the coincidental promotion of the principle of open justice than by its restriction. Indeed, inherent in that latter principle will be the notion that the public ought in all but the most exceptional cases be provided with sufficient information, in this case about a high risk sex offender, in order better to be able to take such steps in their own lives as may appear to be necessary to protect themselves. It would only be in cases where an applicant, such as the defendant in this case, were able to demonstrate by cogent evidence that people with knowledge of him were likely to resort to violence or that violence was imminent, not merely that he was fearful of such things, that an order suppressing his details could properly be made. This is not such a case.”

20. In the CHRO Act context, the Court has previously made non-publication orders of a limited nature relating to a defendant’s post-release place of residence and/or employment: see State of NSW v Colin John Fisk [2009] NSWSC 778 at [214]-[219] (Howie J); State of New South Wales v Burns [2014] NSWSC 1014 at [69] (Beech-Jones J); State of New South Wales v Delaporte [2014] NSWSC 1165 at [9]-[10] (Hamill J).

Consideration of suppression and non-publication orders in the context of the Mental Health (Forensic Provisions) Act 1990

21. In Attorney General of New South Wales v Kereopa (No 3) [2017] NSWSC 929, RA Hulme J refused an application by the Defendant seeking a suppression order, or alternatively, a non-publication order in the interim and final orders and judgments, and also an order that his name be anonymised by a pseudonym. The Defendant submitted that the order was “necessary” having regard to, amongst other matters, his vulnerability arising from a serious mental illness and intellectual disability, youth and the need for rehabilitation which could be compromised by a further erosion of his privacy. His Honour canvassed the relevant provisions of the Suppression Act, and cited the principle in Rhinehart v Welker [2011] NSWCA 403 at [27] that orders “should only be made in exceptional circumstances”. In refusing the application, RA Hulme J stated:

“[21] True it is that Parliament has determined that privacy considerations should prevail to the extent that non-publication provisions are to be found in the Mental Health Act (ss 162 and 189) and the Guardianship Act (s 101). It is of significance, however, that no such provision has been made in relation to proceedings brought under Sch 1 of the MHFP Act. In Attorney General of NSW v Huckstadt (No 2), Adamson J made the following observation at [51] with which I respectfully agree:

"If Parliament had intended to restrict the disclosure of information relating to forensic patients in proceedings in this Court generally, it would have done so expressly. That Parliament has chosen not to do so leads to the conclusion that this Court's discretion under the Act is to be applied having regard to the circumstances of the particular application rather than by general implications said to arise from legislative provisions."

[22] Her Honour found in that case (at [52]) that ‘there is little to distinguish the present applicant from others in respect of whom the plaintiff seeks an extension of the person's status as a forensic patient.’ The same applies in the present case.”

22. As to the specific grounds, his Honour stated the following:

“[26] The ground in s 8(1)(c) is concerned with the defendant personally. But again, nothing was put that suggests that his safety would be compromised if an order were not made. In this respect, a contrast may be drawn with the circumstances in State of New South Wales v Burns [2014] NSWSC 1014 where a non-publication order was made in respect of the defendant's whereabouts, in part because of ‘the potential for reprisals’. (Mr Burns was found to be a high risk sex offender.)

[27] The reasoning of Adamson J in Attorney General of NSW v Huckstadt (No 2) at [60]-[61] in relation to s 8(1)(e) of the Act is also apposite in relation to the defendant's reliance upon that ground:

"The application based on the s 8(1)(e) ground is subject to the same difficulty identified above with respect to the s 8(1)(a) ground. The public interest in the protection of "vulnerable" persons and the rights which accrue to them on that basis, is pre-eminently a matter for Parliament. By making express provision for non-disclosure in circumstances which do not extend to proceedings in this Court, Parliament has, in my view, made its intention clear. In these circumstances, it is not for this Court to make a general adjustment to rights which would apply irrespective of the circumstances of the individual case, on the assumption that Parliament would have achieved that result had it thought of it.

I am not satisfied that it is otherwise necessary in the public interest for the order to be made or that the matters of public interest identified by the defendant significantly outweigh the public interest in open justice. In my view there is a significant public interest in the community knowing, or being able to learn, how this Court manages persons such as the defendant whose limiting term has expired.’”

23. The Court’s disinclination in Kereopa to make suppression or non-publication orders, or pseudonym orders, in the context of forensic patients - where it may be thought that rehabilitation and mental health concerns are typically more acute than in the context of applications under the CHRO Act - highlights the high bar faced by a defendant.

Key principles

24. For present purposes, the following principles may be distilled from the authorities concerning the operation of the Suppression Act:

1) The starting point is consideration of the public interest in open justice which is the primary objective of the administration of justice. [4]

4. See s 6 of the Suppression Act; NSW v Kay [2017] NSWSC 274 at [21].

2) In s 8(1) of the Suppression Act, “necessary” identifies a standard as to which the Court must be satisfied before making an order. [5]

5. Fairfax Digital Australia & New Zealand Pty Ltd v lbrahim [2012] NSWCCA 125 at [46] per Basten JA; NSW v Kay [2017] NSWSC 274 at [23].

3) The applicant has to prove on the “balance of probabilities” that the order sought is necessary. [6]

6. P1 v D1 [2012] NSWCA 314 at [49-51]; NSW v Kay [2017] NSWSC 274 a [25].

4) The test of necessity requires a high degree of certainty. [7]

7. NSW v Kay [2017] NSWSC 274 at [22]; Ashton v Pratt [2011] NSWSC 1092 at [11].

5) The question of necessity depends on the strength of the evidence

called in support. [8]

8. P1 v D1 [2012] NSWCA 314 at [49-51]; NSW v Kay [2017] NSWSC 274 at [25].

6) An order will not be “necessary” if it is simply convenient, reasonable or sensible or to serve some notion of the public interest. [9] Mere belief that the order is necessary is not sufficient. [10]

9. Reinhart v Welker [2011] NSWCA 403 at [27-31]; R v Quami & Ors (No 15) (non-publication order) [2016] NSWSC 318 at [33-36]; Hogan v Australian Crime Commission (2010) 240 CLR 651 at [31].

10. John Fairfax v The Police Tribunal of New South Wales (1986) 5 NSWLR 465; R v Quami & Ors (No 15) (non-publication order) [2016] NSWSC 318 at [28].

7) The order must have utility and must not be futile.

8) In circumstances comparable to an application relying on s 8(1)(c) of the Suppression Act, the test has been stated as whether, on 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. [11]

11. AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6 at [15].

Extant orders in District Court matters

25. It appears that non-publication and suppression orders are extant in relation to two District Court proceedings in which the Defendant was convicted of certain offences, namely:

a. Sentencing proceedings, R v [XY], before Judge Marien SC (no. 05/21/0187) on 27 February 2006: the documentation obtained to date indicates only that a “non-publication” order was made, the terms of which are presently not known;

b. Trial and sentencing proceedings in R v WW before Judge Townsden (no. 2013/00203715). The order made on 27 November 2015 is seemingly as follows:

“Non-publication order in relation to anything that may identify the complainants, including the identification of the accused”. [12]

12. Note also copy of JusticeLink entry handed up to the Court.

Judge Townsden provided reasons in support of determining what appeared to be a joint application for suppression orders under ss 8(1)(a) and (d) of the Suppression Act. [REDACTED]

26. While the terms of the order made by Judge Marien in the 2006 proceedings are not presently known, given the particular circumstances of that offence (see Plaintiff’s substantive Submissions at [80]–[84]), it seems unlikely that the orders would extend beyond relating to protection of the victim (and conceivably her family).

Defendant’s submissions

27. The Defendant seemingly relies upon s 8(1)(e) of the Suppression Act in moving on his Notice of Motion dated 17 June 2019 – namely, that 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.”

28. From the Defendant’s Submissions dated 7 June 2019, Supplementary Submissions dated 17 June 2019 and oral submissions on that same date, the Defendant’s primary contentions appear to be that the orders sought are “necessary” because:

a. At the time of the 1988 offence (relating to Janine Balding), the Defendant was a child (aged 15 years old);

b. Non-publication orders were made by Judge Marien SC on 27 February 2006 in connection with those District Court sentencing proceedings; similarly, the proceedings (trial and sentence) regarding the index offending were the subject of non-publication and suppression orders by Judge Townsden on 27 November 2015 and “it is in the public interest to make the Orders sought to avoid nullifying” the orders in relation to the two District court matters.

29. The Defendant otherwise submits that, as an object of the CHRO Act is to promote rehabilitation, it is in the public interest to protect the Defendant’s efforts to rehabilitate after a long period of incarceration. Specifically, it is stated that:

“A further consideration is the public interest in not prejudicing the Defendant’s rehabilitation which could be affected by adverse publicity concerning these proceedings. This consideration cannot be quantified or evidenced at this time as the Defendant is still in custody and not yet released into the public domain in any way. However, the notoriety of the 1988 offence is well known and it is not unlikely that ramifications by way of external factors, could occur which may affect the Defendant’s prospects of rehabilitation as a result of the publication and disclosure of these proceedings.” [13]

13. Defendant’s submissions dated 7 June 2019 at [23].

30. The Defendant has also served Supplementary Submissions dated 19 June 2019 contending that Interim Order No. 3 (referred to as “the Interim Pseudonym Order”) should be extended to cover the whole of the proceedings. In short, it is put that:

a. The proceedings are at a preliminary stage and the Court ought not pre-determine the outcome of the final hearing (which will inevitably be heard in the next three months);

b. If the Court imposes an extended supervision order (ESO), the defendant’s rehabilitation would be impeded by publicity of his identity and image as he “attempts to take steps to resume something approaching a normal life after 21 years in incarceration”; such publication would add nothing to the proceedings whilst (in contrast) extending the Interim Pseudonym Order to a final order would “only make a small inroad into the overarching public interest in open justice”; [14]

14. Defendant’s submissions on the use of a pseudonym dated 19 June 2019, pp 2, 3.

c. the authorities of AA v State of NSW [2013] NSWSC 1038, BB v Satyanada Ashram Pty Ltd [2016] NSWSC 237 and State of New South Wales v Burns [2014] NSWSC 1014 (at [69]) support the Defendant’s position; and

d. declining extension of the Interim Pseudonym Order will foreclose the Defendant’s opportunities.

31. In support of the rehabilitation argument, the Defendant relies upon an affidavit of Patrick Carter affirmed on 19 June 2019. The affidavit annexes an article published on page 5 of the Daily Telegraph on 18 June 2019 by Janet Fife-Yeomans titled ‘Rapist still unable to see wrong’. [15] The affidavit also recounts Mr Carter’s conversation with the Defendant on 19 June 2019 in which he questioned the Defendant as to what he thought might happen if there was publicity and people became aware of his criminal record. The Defendant reportedly responded: “It would basically destroy my rehabilitation. It could have that impact or make it harder for me to try and adjust if a lot of it is all published”. [16] As to why the Defendant thought it would have this consequence, he stated: “Some people, law abiding citizens may not like the stuff I’ve done in my record. It might limit me to what I maybe can or maybe can’t do, would you rather play paranoia with people on the outside or start fresh, which is what I was planning”. The Defendant went on to explain his reference to paranoia as being to wondering what people were thinking, stating: “I know at the moment there’s some things I’ve done which are maybe not nice, even in here, but I’m trying to get out to turn that all around. I’ve had a long criminal life which I’m trying to turn that around to have a small little life”. [17]

15. Affidavit of Patrick Carter affirmed 19 June 2019 at [2], Annexure A.

16. Affidavit of Patrick Carter affirmed 19 June 2019, at [3].

17. Ibid, at [3].

The Defendant’s application should be dismissed

32. For the reasons that follow, the Defendant’s application should be dismissed.

Defendant’s rehabilitation may be compromised contrary to the public interest – s 8(1)(e)

33. The Defendant’s central contention that his rehabilitation necessitates the orders sought should be rejected, for a number of reasons.

34. First, there is no cogent evidence upon which the Court could form a view as to the impact of media coverage upon the Defendant’s rehabilitation. The assertions of the Defendant regarding his personal concerns arising from publication of his criminal record as well as stated desire to “start fresh” on the outside are not a sound evidentiary foundation for any findings as to prejudice to his rehabilitation. There is no basis upon which the Court would consider it necessary (in the sense of being an exceptional case) to grant the orders sought. As noted above, it will not suffice that an order is merely convenient, reasonable or sensible, or otherwise serves some general notion of public interest: Quami at [22], [24].

35. Secondly, there is an extant non-publication and suppression regime comprised by orders in the two District Court proceedings (described above), together with the statutory protection afforded by s 15A of the CCP Act. There is no relevant utility in making the further orders sought. Moreover, in terms of the self-executing nature of Division 3A of the CCP Act (noting in particular the Defendant’s submission as to his age at the time of the 1988 offences), it is unnecessary and would be inappropriate for the Court to make an order for the same purposes as s 15A (see R v AB, at [12] above). On this basis then, the Defendant again fails to meet the necessity threshold in s 8 of the Suppression Act.

36. Thirdly, self-evidently, the issue of rehabilitation will be a matter common to all defendants the subject of applications under the CHRO Act (noting also the observations of the Court in Kereopa and Huckstadt above in terms of the cohort under the MHFP Act). It does not follow, regardless of the secondary objective of rehabilitation in the CHRO Act, that orders under s 8 of the Suppression Act should be made as a matter of course to aid in that endeavor. There is nothing compelling or exceptional to distinguish the Defendant’s particular circumstances from many of the CHRO Act cohort, many of whom have also had extensive criminal records with attendant media interest (including, for example, Mr Kay – see at [18] above).

37. Fourthly, on a related note, media reporting of proceedings under the CHRO Act - consistent with the fundamental principle of open justice - may be thought of as advancing the primary object under that Act in terms of ensuring the safety and protection of the community. This is because open justice permits the public (in all but the most exceptional cases) to be provided with sufficient information about high risk offenders to take such steps in their own lives as may appear necessary to protect themselves (as noted by Harrison J in Kay, see at [19] above).

Extension of the Interim Pseudonym Order

38. For the reasons set out above, the Plaintiff also opposes making a final order in the form of the Interim Pseudonym Order or extending the interim order pending determination of the proceedings at the final hearing. In the circumstances of the present case, an order of this nature is inappropriate and may also be considered antithetical to the primary purpose of the Act – namely, ensuring the safety and protection of the community - which may ultimately be augmented by fair media reporting.

39. The authorities cited by the Defendant are inapposite. AA v State of NSW [2013] NSWSC 1038 concerned an application before Garling J, as duty judge, with his Honour expressly noting that a decision on an interlocutory application such as that before him was not the place for a detailed discussion of the principles applicable in making an order under the Suppression Act (at [12]). That matter also concerned very different proceedings, being a claim by the Plaintiff for judicial review. In granting the relief sought on an interim basis, his Honour was concerned that the Plaintiff would otherwise be deterred from continuing with the proceedings; that is a situation far removed from the present proceedings brought under the CHRO Act where the paramount concern is protection of the community.

40. BB v Satyananda Ashram Pty Ltd [2016] NSWSC 237 concerned the Plaintiff’s Notice of Motion to bring proceedings using a pseudonym on the basis that she had been the subject of physical and sexual abuse at the hands of a deceased person, for whom the first Defendant was vicariously liable; use of pseudonym was sought to protect the Plaintiff’s privacy. That authority, and reference to Witness v Marsden [2000] NSWCA 52, appears misconceived in the present circumstances where the Defendant is in fact the perpetrator of sexual offences against a number of victims. There is no statement of principle in that authority that relevantly assists the Defendant.

Conclusion

41. The Defendant has failed to establish a proper basis for the making of the orders sought in the Notice of Motion or for any of the interim orders to be made as final or extended orders. The Notice of Motion should be dismissed. The Court would be justified in revoking the interim orders.”

9. Decision

10. I accept the plaintiff’s submission in their entirety as a correct statement of the applicable and relevant law. I accept as authoritative and right the analysis of the issues as they relate to this defendant and this application. I accept as correct the analysis of the authorities relied upon by the defendant and the reasons submitted by the plaintiff as to why those authorities provide no support for the orders sought.

Orders

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

1. I revoke the interim non-publication orders made on 17 June 2019;

2. The defendant’s notice of motion filed in court on 17 June 2019 is dismissed.

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Endnotes

Decision last updated: 08 August 2019