State of NSW v Williamson

[2019] NSWSC 656

Supreme Court

New South Wales

Medium Neutral Citation:	State of NSW v Williamson [2019] NSWSC 656
Hearing dates:	4 June 2019
Date of orders:	04 June 2019
Decision date:	04 June 2019
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1)   The notice of motion filed on 3 June 2019 is dismissed.
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	Ashton v Pratt [2011] NSWSC 1092 Fairfax Digital Australia & New Zealand v Ibrahim [2012] NSWCCA 125 New South Wales v Kay [2017] NSWSC 274
Texts Cited:	PRACTICE AND PROCEDURE – Application for non-publication order – Whether order necessary
Category:	Procedural and other rulings
Parties:	State of NSW – Plaintiff Terry Williamson – Defendant
Representation:	Counsel: K Curry – Plaintiff S Hall – Defendant   Solicitors: Crown Solicitor for NSW – Plaintiff Legal Aid Commission of NSW – Defendant
File Number(s):	2019/166590
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. In these proceedings the plaintiff has sought orders pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). I have made orders in the proceedings facilitating their progress towards a preliminary hearing on 21 June 2019.

2. Before the Court today is a notice of motion filed on behalf of the defendant on 3 June 2019, which seeks orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Suppression Act”) restricting the disclosure of information tending to reveal the identity of the defendant, his history, and the fact of the current application. The notice of motion is supported by an affidavit of Bridget Kennedy of 29 May 2019 which has been read without objection. The orders are opposed by the plaintiff.

3. The background to the matter may be summarised as follows.

4. On 9 December 1991 the defendant was sentenced by Loveday AJ to imprisonment for 23 years, 11 months and 29 days expiring on 15 May 2014, with a non-parole period of 14 years, in respect of sexual offences. The defendant first became eligible for parole on 16 May 2004. He was refused parole on repeated occasions between 2004 and 2012 before being released on 16 February 2012. Previous applications have been made by the plaintiff under the Act as set out in an affidavit of Gillian Buchan of 24 May 2019.

5. The affidavit of Ms Kennedy establishes that if one were to conduct a “Google” search by use of the terms "Terry Williamson Bulli" more than 80,000 search results would be returned. Those search results include media articles in relation to the defendant's offences, his sentence, his victims, his release on parole and a previous extended supervision order which made by this Court. There are also references in Ms Kennedy's affidavit to publications in which the defendant has been referred to as "the Bulli rapist".

6. The essence of the present application is encapsulated in paragraph 7 of Ms Kennedy's affidavit which is in the following terms:

There is a concern that Mr Williamson's progress, in terms of both his rehabilitation and his reintegration into the community, would be jeopardized by publications linking the current proceedings and his history, given the notoriety of the "Bulli rapist" both at the time upon his release to parole and at the time that the last order was made in 2014.

7. Ms Hall who has appeared on behalf of the defendant today has submitted that in circumstances where the defendant is at large in the community, there is a real fear that his ongoing rehabilitation will be jeopardized if his identity, and matters relating to these proceedings, are made public. Ms Hall submitted that there was necessarily a public interest in ensuring, as far as possible, that the defendant's ongoing rehabilitation was both timely and effective.

8. Although not the subject of evidence, Ms Hall addressed me in relation to the possible ramifications upon the defendant's employment if his identity was made public. She also alluded to the fact that the defendant is a member of a number of social groups, and that his ongoing participation in those groups may be jeopardised if the orders sought were not made.

9. As previously noted, the orders are opposed by the plaintiff. Put simply, the plaintiff's position is that based on the evidence before me today, I could not come to the conclusion that the orders are necessary.

10. Section 7 of the Suppression Act in the following terms:

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.

11. Section 8 is in the following terms:

8 Grounds for making an order

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

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

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

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

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900 ),

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

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

(3) Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

12. The present application is brought pursuant to s 8(1)(e), although Ms Hall also relied (albeit to a lesser extent) upon s 8(1)(a).

13. Written submissions provided by counsel for the plaintiff helpfully set out the authorities which bear upon the exercise of the power under s 7 of the Suppression Act to make the orders sought. The starting point involves a consideration of the public interest in open justice, which is the primary objective of the administration of justice: New South Wales v Kay [2017] NSWSC 274 at [21].

14. The meaning of the word “necessary” as it appears in s 8 depends upon the context in which it is used. The word is not to be given a narrow construction: Fairfax Digital Australia & New Zealand v Ibrahim [2012] NSWCCA 125 at [8]. It identifies the standard to which I must be satisfied before making the orders which have been sought: Fairfax Digital at [46]; Kay at [23].

15. The onus is on the plaintiff to prove, on the balance of probabilities, that the order sought is necessary. The test of necessity requires a high degree of certainty: Kay at [22]; Ashton v Pratt [2011] NSWSC 1092 at [11]. Whether an order is necessary will depend on the strength of the evidence which is called in support of it: Kay at [25].

16. On the basis of evidence before me, and whilst I am not unsympathetic to the plaintiff's position, I am unable to conclude that the order is necessary in the sense in which the authorities have interpreted that term. There is, as I pointed out in the course of submissions, a total absence evidence to support the concerns expressed by Ms Kennedy in paragraph 7 of her affidavit. In circumstances where the determination of necessity depends on the strength of the evidence called in support of the application, and where the test of necessity requires a high degree of certainty, I am not satisfied on the evidence before me that the order sought should be made.

17. For those reasons I make the following order.

1. The notice of motion filed by the defendant on 3 June 2019 is dismissed.

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Decision last updated: 27 February 2020