State of NSW v Kay

[2017] NSWSC 274

Supreme Court

New South Wales

Medium Neutral Citation:	State of NSW v Kay [2017] NSWSC 274
Hearing dates:	17 March 2017
Date of orders:	21 March 2017
Decision date:	21 March 2017
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1)    Order that that the interim order made by me on 27 February 2017 suppressing publication of the name and image of the defendant be revoked. (2)    I make no order as to the costs of this application.
Catchwords:	SUPPRESSION ORDERS – Court Suppression and Non-Publication Orders Act 2010 – primary objective of administration of justice is to safeguard the public interest in open justice – whether safety of high risk sex offender at risk – whether suppression order necessary – whether evidence sufficient to establish that an order is necessary for the safety of the defendant – whether order of any utility in any event
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 Crimes (High Risk Offenders) Act 2006
Cases Cited:	Ashton v Pratt [2011] NSWSC 1092 Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378; [2015] HCA 5 Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 Hamzy v R [2013] NSWCCA 156 P1 v D1 [2012] NSWCA 314 R v Kay [2000] NSWSC 716 Regina v Kay [2002] NSWCCA 286 The State of New South Wales v Kay [2016] NSWSC 1820
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Graham James Kay (Defendant)
Representation:	Counsel: L Boyd (Plaintiff) T Gartelman SC and A Cook (Defendant) M Lewis (Intervenor)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid Commission of NSW (Defendant) Lara Mullins (Intervenor)
File Number(s):	2016/356365
Publication restriction:	Nil

Judgment

1. HIS HONOUR: On 27 February 2017, I heard argument in the principal proceedings in which the State of New South Wales sought an extended supervision order for a period of three years against the defendant in accordance with the Crimes (High Risk Offenders) Act 2006. I made an interim suppression and non-publication order with respect to the name of the defendant at that time, pending publication of my final reasons for judgment, pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010.

2. By notice of motion filed on 5 March 2017, the defendant sought orders that would, if granted, make the interim order a permanent order. He relied upon an affidavit affirmed by him on 16 March 2017 and an affidavit affirmed by Karen Espiner on 16 March 2017. By its notice of motion dated 14 March 2017, Nationwide News Pty Ltd sought opposing relief that the interim order made by me should be reviewed pursuant to s 13 of the Act and that it should be revoked. That application was supported by an affidavit of Larina Mullins affirmed on 14 March 2017. It will be necessary in due course to refer to all of this evidence in some detail.

3. These motions came before me on 17 March 2017. That was also the last day for the making of orders in the principal proceedings without extending the time for doing so under the Crimes (High Risk Offenders) Act. I determined that my interim order should be revoked. I proceeded to publish my decision in the principal proceedings: State of New South Wales v Kay [2017] NSWSC 254. With the agreement of the parties, I indicated that I would publish my reasons for judgment concerning the competing claims under the Court Suppression and Non-Publication Orders Act as soon as possible thereafter. These reasons deal with that contest.

Legislation

4. The Court Suppression and Non-Publication Orders Act provides relevantly 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 Power to make orders

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

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

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

8 Grounds for making an order

(1)    A court may make a suppression order or non-publication order on one or more of the following grounds:

(a)    the order is necessary to prevent prejudice to the proper administration of justice,

(b)    the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

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

(d)    the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e)    it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2)    A suppression order or non-publication order must specify the ground or grounds on which the order is made.

10 Interim orders

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

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

13 Review of orders

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

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

(a)    the applicant for the order,

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

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

(d)    a news media organisation,

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

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

5. Section 3 of the Crimes (High Risk Offenders) Act is in these terms:

“3 Objects of Act

(1)    The primary object of this 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.

(2)    Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.”

Background

6. The background to these applications is to be found in the various judgments of this Court and of the Court of Criminal Appeal. The defendant was sentenced by R S Hulme J on 26 July 2000: see R v Kay [2000] NSWSC 716. The defendant appealed unsuccessfully to the Court of Criminal Appeal on 24 July 2002: see Regina v Kay [2002] NSWCCA 286. Her Honour Schmidt J made an interim supervision order concerning the defendant in these proceedings on 15 December 2016: see The State of New South Wales v Kay [2016] NSWSC 1820. I made final orders in these proceedings on 17 March 2017 as already mentioned. It is presently unnecessary to reproduce any of the details of the defendant’s offending or to make further reference to the reasons for the making of either the interim or final extended supervision orders against him.

Evidence on these applications

7. The defendant said that he was threatened regularly when he was in custody. He set forth in some graphic detail in his affidavit particulars of several violent incidents and assaults to which he was subjected at the hands of fellow inmates. The threats and assaults upon him continued until he was eventually released from custody. He said that even at the end of his sentence these assaults would occur at least every couple of months.

8. The defendant also referred to threats that had been received by his friends and family members. These included threats to his former wife, his mother, his sisters, one of his sons and his former girlfriend and her family. He recalled being told by family members about receiving threats over the phone at all times of the day and night. Sometimes they would receive face to face threats and harassment. His mother would also be subjected to derogatory comments directed at her. The defendant said, however, that these problems for his family and friends died down over time.

9. The defendant said that since he has been released he has not received any threats. It is his belief that that is because no one has known about his past. He said that until the final hearing before me on 27 February 2017, he felt safer. He believed that he had been able slowly to reintegrate into the community in a very positive way.

10. The defendant said this about his present fears and concerns:

“[19] I have real concerns about what might happen if my name or image is in the media because I am scared that I will be threatened, harassed or attacked. I am scared this might happen because of my experience when there was more media interest at the time of my arrest and at the time of my sentencing. I am terrified that it will happen again.

[20] I am also worried that people might start harassing, abusing or confronting my family again. I am concerned because I have put them through so much but we are slowly getting our relationships back on track.

[21] After I left court on 27 February 2017, I was approached by the media and cameramen. I felt they were aggressive. The media and cameramen were interfering with my ability to walk. I had an umbrella. They tried to push their cameras up under my umbrella. I was walked into a wall at St James Station. I am scared of being identified because I am fearful I might be assaulted, as occurred following the increased media interest when I was sentenced.

[22] On 28 February 2017, I received a telephone call from a family member who told me that since the previous evening she had received numerous phone calls from friends who had recognised me in the media images.”

11. On 9 March 2017, the defendant was dismissed by his employer. He was told that the reason for his dismissal was “recent adverse media” that led his employer to conclude that there had “been a breakdown in the employment relationship”. The defendant has now also been made to comply with a curfew as part of the conditions attaching to his supervision order. The defendant concluded his affidavit with the following paragraph:

“[30] I have found the last two weeks since the final hearing incredibly stressful. I have been very fearful for my safety and what might happen to me. I have been worried that more people might recognise me. I am worried that people will recognise me when I am in public and will confront me. I have stayed inside the house more and left only for essential tasks, such as legal matters or to comply with the interim supervision order. I am also worried that, if people do recognise me, they may also find out where I live. If anyone found out where I lived and caused problems for me, I am worried that I may lose my accommodation. If I lose my accommodation it would be extremely difficult to find another place to live.”

12. Ms Espiner is a solicitor. She conducted a series of investigations that uncovered several media articles relating to these proceedings since the matter was first listed on 27 February 2017. Ms Espiner annexed 14 of these print or web-media articles to her affidavit. Ms Espiner has also located several Facebook posts apparently referring to the defendant. It is a sufficient summary of these posts that they are offensive, threatening and violently disposed to the defendant. None refers to him by name. Some include references to the fact that if his name became known, the author of the post would in effect take steps to publish it more widely. One of these posts said that the defendant “should fear for his safety” and that “every time he walks outside he should worry one of his victims has found him”. It continued, saying that “every time he crosses a road he should think ‘is this when she runs me down like the dog I am’”.

13. Larina Mullins caused a detailed historical search to be conducted in News Corp Australia’s electronic archive of articles in newspapers in New South Wales against the defendant’s name. Ms Mullins found 21 articles, which she listed by masthead, between 20 February 1997 and 1 August 2000. All of the articles reported on the defendant’s criminal proceedings for multiple charges of rape. Tear sheets from several editions of The Daily Telegraph are annexed to Ms Mullins’ affidavit as well.

14. All of this material contains detailed and repetitive references to the defendant and his criminal activities. He is referred to by name. Several of the articles contain photographs of him as well.

Defendant’s submissions

15. The defendant relied upon s 8(1)(a) and (c) of the Court Suppression and Non-Publication Orders Act in support of his concern that the interim order preventing publication of his name or his photograph should be extended indefinitely. His significant contention was that he feared for his safety and that such an order was necessary to protect him from physical harm. He relied upon the fears that he expressed in his evidence, which he submitted were supported by the material on the Internet and social media to which he referred. In addition, his family and friends were also concerned about their safety, and an order was also said to be appropriate in those circumstances.

16. The defendant contended that, quite apart from his ability to satisfy s 8(1)(c), 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 the further publication of his name with the increased prospect of attacks upon him becoming a reality. He argued that that would circumvent the proper administration of justice by encouraging people who were so minded to take the law into their own hands. The defendant contended in effect that such a prospect would be inimical to the maintenance of a peaceful society and ought therefore to be discouraged or prevented.

17. The defendant emphasised that one of the objects of the Crimes (High Risk Offenders) Act was to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. He argued that it was in the interests of the safety of the community for such offenders to continue their rehabilitative efforts and that threats or the prospect of violence towards them may operate to frustrate such efforts to the long term detriment of the community. An example of how the publication or dissemination of details about him could operate in that way could be seen from the fact that he recently lost his job as a direct consequence of his employer becoming aware of his identity and his history. He had up until that time been regarded as a valuable and reliable employee and was anticipating promotion.

Nationwide News Pty Ltd’s submissions

18. The newspaper contended that there were two reasons why the order should be revoked. First, it was not necessary. This was said to be because the defendant had failed to establish by proper evidence that his safety was in fact imperilled, as opposed to establishing merely that he was concerned about it. The newspaper submitted that for s 8(1)(c) to be attracted, the defendant would have to establish at least the probability of harm or that harm was imminent: mere belief or suspicion would not be enough.

19. Secondly, it would be futile to make any order limiting or restricting publication of the defendant’s name or picture because there was already so much information about him that was publicly available and readily accessible. It was implicit in this submission that even aside from the wealth of material of the type to which Ms Mullins’ affidavit drew attention, there were three judgments on the Supreme Court Caselaw website that went into detail about the defendant and his criminal activities that named him. No attempt had been made by the defendant at any time to have those judgments removed or to have them modified in such a way that they could not be connected to him.

20. The newspaper also argued that s 8(1)(a) had no application in the present circumstances. That paragraph was concerned with the “administration of justice”. It was not directed to the more general concept of the “interests of justice”. In such circumstances, the fact that there were no proceedings on foot following the making of my final orders in the principal proceedings meant that any application of the concept of administration of justice had been spent.

Consideration

21. The logical starting point seems to me to be s 6 of the Court Suppression and Non-Publication Orders Act. The question of whether or not to make an order is to be informed in the first instance by consideration of the public interest in open justice. That is said to be a primary objective of the administration of justice. This principle finds recent affirmation by the High Court in Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378; [2015] HCA 5 at [44]:

“[44] The Commissioner suggests that protective orders could be made, which might maintain the confidentiality of evidence, and that evidence could be given in closed court. In the latter regard, the open court principle, to which the law adheres, now finds expression in s 28 of the Open Courts Act 2013 (Vic). The rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances. Closing the court so that the Commissioner might progress forfeiture proceedings and receive the second respondent's evidence does not qualify as a proper reason for departing from the principle.”

22. Nor has the prospect of collateral damage to others been thought to be sufficient to attenuate this principle. In the present case it was part of the defendant’s concern that his friends and relatives may suffer or be adversely affected by association with publicity concerning him. That concern is not sufficient to limit the application of the principle of open justice, as the following passage from Ashton v Pratt [2011] NSWSC 1092 at [11] indicates:

“[11] It is an unfortunate consequence of open justice that the children of parties to, and other people involved in, proceedings (including, for example, in criminal proceedings) may be subject to disadvantage when their parents' names are mentioned in court. This has never been a sufficient basis for intruding on the principle of open justice. The tests of necessity referred to in s 8 have often been said to require a high degree of certainty. At least, that was so when necessity was the test imposed by common law, and there is no reason why it would be any less so in the context of the statute [John Fairfax Publications Pty Ltd and Another v District Court of New South Wales and Others (2004) 61 NSWLR 344, 365-366 (Spigelman CJ)]. I have considered whether the protection of the child amounts to protecting the safety of the person, but I do not think it has been demonstrated that there is any risk to the child's safety.”

23. Statements such as this immediately and properly cast attention upon the question of necessity, which for all of the five paragraphs in s 8 is the touchstone of applicability. In Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125, Basten JA said this about necessity at [46]:

“[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 paragraph (a), the purpose of the order will be ‘to prevent prejudice to 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.”

24. The question of necessity was also dealt with recently in Hamzy v R [2013] NSWCCA 156. Part of what was discussed on that topic appears at [60] as follows:

“[60] The term ‘necessary’ is not to be given a restricted meaning. It has to be interpreted and applied in context. That context in my opinion includes the possibility of an irrational and illogical response by members of the applicant's faith, as so nominated by him in evidence in this Court, to the revelation of his historical dealings with the authorities concerning the rocket launchers, however unbelievable or unproductive they may have ultimately turned out to be in fact. It is not in my view appropriate to balance or to calibrate the competing interests recognised by the Act, including relevantly for present purposes the applicant's safety, upon the fulcrum of an assumed reasoned and dispassionate response by the applicant's potential detractors to the material that he seeks to keep confidential. If the potential publication of the applicant's evidence before the primary judge and in this Court raised even some doubt that his safety were compromised, he should in my opinion be given the benefit of that doubt when deciding the question of whether or not a suppression or non-publication order is necessary. I consider that the material does raise that doubt. The need to safeguard the public interest in open justice does not prevail in this case where in my opinion the s 8(1)(c) ground has been made out.”

25. It will be immediately apparent that the question of necessity and whether or not an applicant has made out a case for an order restricting or limiting publication is a function of the strength of the evidence called in support. To what extent must the defendant in this case demonstrate that the order sought is necessary to protect his safety? In P1 v D1 [2012] NSWCA 314 at [49] – [51], the Chief Justice said this:

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

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

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

26. In the present case the newspaper argued that the evidence upon which the defendant relies established neither that it was probable that he would suffer harm if an order were not made nor that any such harm was even imminent. In my opinion, these submissions have some considerable force. The defendant has certainly established that he suffered harm in the custodial setting that was prolonged and extensive. That violence towards him ceased when he was released into the community. It has not shown any sign of revival, in the sense that the defendant is not able to point to an incident of actual physical violence perpetrated upon him since his release.

27. It is understandable that the defendant should retain some concern for his safety, having regard to the reaction of his fellow prisoners and the written material circulating on various social media. It is, however, significant that none of this distasteful material has manifested itself in an actual incident, or credible threat, of violence. The 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 its highest, the defendant is presently only, even if reasonably, able to say that he holds fears for his safety. The concern he has for his friends and relatives is also insufficient to trigger the operation of s 8(1)(c). It should be borne in mind that the views I expressed in Hamzy, which related to the applicant’s expressed fears for his own safety, arose in the custodial setting where violence and retribution among inmates was more likely than from disinterested members of the non-custodial community.

28. It does not seem to me that the evidence establishes that the defendant’s safety is at risk, either because of a probability of violence or because of some imminent threat of violence towards him.

29. Furthermore, the assessment of the question of necessity does not only look forward. It also requires an assessment of whether the order will have any utility. An order will obviously fail the test of utility if it is futile.

30. In the present case, the defendant asks for relief that fails to take account of the reality that his name and picture are now, and have for some considerable period, been open to public scrutiny. The judgments of this Court and of the Court of Appeal are unexpurgated. It is possible to trace publicly available articles from as early as February 1997 up to the present time that contain the defendant’s name and images. The very information that the defendant seeks to restrict has been in the public domain for some time. It has not been suggested by the defendant how the order that is sought can effectively accommodate these historical realities. It is not without some significance, perhaps reflecting the difficulties of doing so, that no application has been made to remove the already available allegedly offending material from scrutiny. In my opinion, the orders that are sought would not be effective.

31. 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.

32. Finally, I wish to make it clear that nothing in these reasons should be taken or understood as encouraging or endorsing, as an acceptable practice, the publication of distasteful, hateful or gratuitous comments in print or electronic media by anonymous contributors.

Orders

33. I have already ordered that the interim order made by me on 27 February 2017 suppressing publication of the name and image of the defendant should be revoked. I do not propose to make any order for the costs of the present application.

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Decision last updated: 21 March 2017