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Supreme Court 2 April 2015

R v Simmons (No 5) (Non-Publication Orders)

[2015] NSWSC 333

Public order & justice offences
CRIMINAL LAW SUPPRESSION ORDERS CLOSURE OF COURT CONFIDENTIAL EVIDENCE ASSUMED IDENTITIES ORDERS MADE CRIMINAL LAW

Citation: R v Simmons (No 5) (Non-Publication Orders) [2015] NSWSC 333
Court: Supreme Court of New South Wales
Date: 2 April 2015
Judge: Hamill J

Background

The accused was on trial for the murder of a Bathurst man who disappeared in 2009. Police used a covert investigative method (commonly called the "Mr Big" or "Canadian" technique) between September 2012 and January 2013 to obtain admissions from the accused. The technique involves undercover officers building a fabricated criminal network around a suspect to elicit confessions. Earlier rulings in the same proceedings had found those admissions to be admissible.

The NSW Commissioner of Police applied for non-publication orders covering the details of the investigative technique and sought suppression orders, pseudonym orders, and court closure orders to protect the real and assumed identities of the undercover officers who carried out the operation. The application was made under both the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) and the Court Suppression and Non-Publication Orders Act 2010 (NSW).

Neither the Crown nor the defence took a position on the Commissioner's application, and no media organisation appeared as a contradictor. The court therefore considered the application without opposing submissions.

  • Whether non-publication orders were necessary to protect the safety and identities of undercover police officers who gave evidence under assumed names.
  • Whether suppression of the details of the investigative technique was warranted, given that the technique had already received substantial public and media attention.
  • How to balance the open justice principle against the need to protect operational policing methods and officer safety.
  • Whether earlier judgments delivered in the trial could be published, and in what form, given ongoing non-publication orders.
  • Whether the restricted access function of the Judicial Information Research System (JIRS) could serve as an exception to a general non-publication order, allowing controlled legal access to the judgments.

Decision

Hamill J granted suppression and pseudonym orders protecting the real and assumed identities of the eleven undercover officers, and ordered the court to be closed during their evidence. The basis for these orders was the safety of the officers and the operational integrity of the NSW Police Undercover Program. These orders applied throughout the Commonwealth.

On the question of whether the details of the investigative technique itself warranted suppression, the court acknowledged initial scepticism. The "Mr Big" technique had been publicly reported in media coverage of several Australian cases, was described on Wikipedia, and had been discussed in High Court and other appellate judgments. Hamill J observed that if public reporting had been intended to deter suspects from falling for the technique, it had not succeeded.

Despite the existing publicity, the court found that the specific operational details deployed in this case went beyond what had previously been published. Earlier reporting and judgments described the technique at a general level, whereas the judgments from this trial contained more granular detail about its application. The court was satisfied that further publication of those details could prejudice the proper administration of justice and compromise officer safety, meeting the statutory threshold under the Suppression Act.

Rather than imposing a blanket suppression, the court crafted a tiered approach. Full unredacted versions of the earlier judgments would be sealed on the court file. Redacted versions suitable for general publication were approved. Separate, less heavily redacted versions were permitted to be published on JIRS as restricted judgments, accessible only to the judiciary, their staff, and legal practitioners in accordance with Judicial Commission protocols. The court drew a distinction between general publication on the internet and controlled access through specialist legal research platforms, noting that judgments of this kind were unlikely to "go viral" via legal databases but warranted broader protection from mass internet publication.

Orders Made

Key orders made by the court included:

  • Eleven undercover officers permitted to appear and be referred to throughout proceedings using assumed names only.
  • No publication or disclosure of the real or assumed identities of those officers, or any material that might facilitate their identification; court closed during their evidence.
  • Orders protecting officer identities to apply throughout the Commonwealth and until further order.
  • No publication of the evidence or submissions from the pre-trial voir dire until further order.
  • The judgments known as Simmons (No 2) [2015] NSWSC 143 and Simmons (No 4) [2015] NSWSC 259 to be published on JIRS as restricted judgments in forms annexed to the judgment, accessible to judiciary, staff, and legal practitioners only.
  • Redacted versions of Simmons (No 2), Simmons (No 4), and the present judgment (No 5) approved for general publication in the forms set out in the respective annexures.
  • Original unredacted versions of all three judgments to be kept on the court file in sealed envelopes, not to be opened except by order of a Supreme Court judge or higher court.
  • All orders to apply throughout the Commonwealth pursuant to s 11 of the Suppression Act, and to remain in effect until further order pursuant to s 12.
  • The Commissioner of Police (or the NSW Crown Solicitor) to be given notice of any application to vary or discharge the orders.
  • The non-publication order over Simmons (No 3) [2015] NSWSC 189 was revoked.

Key Takeaways

  • Pseudonym and court closure orders protecting undercover officers will be granted where credible safety risks are established, even in trials attracting public interest, provided the statutory threshold under the Court Suppression and Non-Publication Orders Act 2010 (NSW) is satisfied.
  • Prior widespread publicity about an investigative technique does not automatically defeat a suppression application; the court distinguished between general public descriptions of a technique and the specific operational details disclosed in a particular trial.
  • A tiered publication regime is available under s 9(4) of the Suppression Act: courts can permit controlled access to judgment content through restricted legal databases (such as JIRS) while simultaneously preventing broader internet publication of the same material.
  • The Supreme Court recognised a meaningful distinction between publication on mass media platforms and access through specialist legal research systems, treating the latter as a less significant departure from suppression for the purposes of open justice.
  • Unredacted judgments subject to non-publication orders may be preserved on the court file in sealed form, with access reserved for future judicial or appellate purposes by order of a Supreme Court judge or higher court.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW)
- Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW)

Cases:
- Tofilau v The Queen [2007] HCA 39; 231 CLR 396
- Commissioner of Police v Nationwide News [2007] NSWCA 366; 70 NSWLR 643
- Fairfax Digital v Ibrahim [2012] NSWCCA 125
- D1 v P1 (No 2) [2012] NSWCA 440
- Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1
- Donai v R [2011] NSWCCA 9
- R v Abrahams [2013] NSWSC 952
- R v Cowan [2013] QSC 337
- R v Simmons; R v Moore [2015] NSWSC 73
- R v Simmons; R v Moore (No 2) [2015] NSWSC 143
- R v Simmons; R v Moore (No 3) [2015] NSWSC 189
- R v Simmons; R v Moore (No 4) [2015] NSWSC 259