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)

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.
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.
The background to the matter may be summarised as follows.
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.
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".
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 656
Decision Date: 04 June 2019

CaseChat Overview and Summary

The State of New South Wales sought orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) against the defendant, Terry Williamson, to restrict the publication of information that could reveal his identity, criminal history, and the fact of the current application. The background to the matter included the defendant's previous convictions for sexual offences, his release on parole in 2012, and previous applications by the plaintiff under the Crimes (High Risk Offenders) Act 2006 (NSW). The defendant's counsel argued that the defendant's ongoing rehabilitation and reintegration into the community would be jeopardized if his identity and the current proceedings were made public.

The legal issues the court had to decide were whether the orders sought under the Suppression Act were necessary to prevent prejudice to the proper administration of justice or in the public interest, given the absence of evidence to support the concerns about the defendant's rehabilitation. The court considered the authorities on the exercise of the power to make the orders, the public interest in open justice, and the meaning of the word "necessary" in the context of the Suppression Act.

The court dismissed the notice of motion filed by the defendant on 3 June 2019. The reasoning was that the plaintiff had not provided sufficient evidence to support the concerns about the defendant's rehabilitation and reintegration into the community. The court was not satisfied on the evidence before it that the orders sought were necessary in the sense in which the authorities had interpreted that term. The test of necessity required a high degree of certainty, and the evidence was lacking to meet that standard.

The final order was that the notice of motion filed by the defendant on 3 June 2019 is dismissed.

Orders