Citation: R v Hutchison, Wilkinson & Greentree (No 3) [2018] NSWSC 1758
Court: Supreme Court of New South Wales
Date: 16 November 2018
Judge(s): Hamill J
Background
This decision concerned the making of final suppression and non-publication orders in a murder trial. The trial involved allegations that a man was murdered by his ex-wife and her fiancé. Evidence adduced at trial included agreed facts about proceedings in the Family Court, as well as oral evidence from three children.
The Crown and accused jointly applied for interim orders in August 2018. Hamill J made those interim orders and later heard argument on whether final orders should follow. No media organisation applied to oppose the orders.
The judgment addressed two overlapping concerns: the need to protect the identities of child witnesses, and the need to restrict publication of Family Court material that would otherwise attract a statutory prohibition under the Family Law Act 1975 (Cth). At the same time, the court was mindful of the strong public interest in open justice, particularly in a serious criminal trial.
Legal Issues
- Whether final suppression or non-publication orders were "necessary" under s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) ("the Act")
- Whether orders were required given that existing statutory prohibitions under the Family Law Act 1975 (Cth) s 121 and the Children (Criminal Proceedings) Act 1987 (NSW) s 15A already covered some of the relevant material
- Whether pseudonym orders were appropriate to protect child witnesses while keeping the court's judgment accessible and transparent
- Whether a "carve out" from Family Court non-publication restrictions was appropriate to allow publication of reasoning in the main judgment
Decision
Hamill J confirmed that the court must be satisfied any order is "necessary" under s 8 of the Act before making it final. Although existing statutory prohibitions under federal and state legislation already restricted some of the material in question, the court found it was not unnecessary to make additional orders. The application of those statutory provisions to the specific circumstances of the trial would not have been obvious to members of the media or the public, and clarity warranted express orders.
The court drew on Application by John Fairfax Publications Pty Ltd re MSK and Others [2006] NSWCCA 386, which cautioned against duplicating the policy work of legislative schemes. Hamill J distinguished the present case on the basis that the orders served to maintain the integrity of Family Court proceedings more generally, and to make the statutory position clear in a context where it might otherwise be overlooked.
On child witnesses, the court found that pseudonym orders were necessary, under the court's inherent jurisdiction, to satisfy the objectives of the Children (Criminal Proceedings) Act 1987 while still rendering the judgment comprehensible to the public. The court carved out from the non-publication order those portions of the Family Court material that were directly referenced in the published verdict judgment, noting that neither party objected to this approach.
Hamill J was also satisfied under s 8(1)(e) of the Act that the public interest in making the orders significantly outweighed the public interest in open justice in the specific respects covered by the orders. The orders were given Commonwealth-wide effect under s 11 of the Act and were made to remain in force until further order.
Orders Made
- A suppression order over the surname of the deceased and the children who gave evidence at trial
- A non-publication order over the contents of exhibit H-15 (agreed facts relating to the Family Court proceedings), except for details published in the associated judgment R v Hutchison & Wilkinson [2018] NSWSC 1759
- Pseudonym orders applying to the published and online version of the verdict judgment, substituting:
- "Walker" for the family name of the deceased
- "April" for the first name of the deceased's daughter
- "Toby" for the first name of the deceased's son
- "Tiffany Johnson" for the name of a friend of the daughter who gave evidence
- Orders made under s 8(1)(a) and s 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW)
- Orders to have effect throughout the Commonwealth under s 11
- Orders to remain in force until further order under s 12
Key Takeaways
- The Supreme Court confirmed that suppression orders can be appropriate even where statutory prohibitions already cover some of the relevant material, where the application of those prohibitions to the specific proceedings would not be apparent to the public or media.
- A test of "necessity" under s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) applies to applications for final orders, and that same standard guides the exercise of the court's inherent jurisdiction to restrict publication.
- Pseudonym orders, made under the court's inherent jurisdiction, can serve the dual purpose of protecting child witnesses under the Children (Criminal Proceedings) Act 1987 (NSW) while preserving the readability and transparency of published judgments.
- A "carve out" from a non-publication order, allowing reference to otherwise restricted Family Court material where necessary to explain a verdict in a serious criminal trial, can be consistent with the open justice principle, particularly where neither party objects.
- Under s 11 of the Act, orders made by the Supreme Court of New South Wales can be given effect throughout the Commonwealth of Australia.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 8, 10, 11, 12
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Family Law Act 1975 (Cth), s 121
Cases
- Application by John Fairfax Publications Pty Ltd re MSK and Others [2006] NSWCCA 386
- R v Hutchison & Wilkinson [2018] NSWSC 1759 (the associated verdict judgment)