Citation: State of NSW v Williamson [2019] NSWSC 656
Court: Supreme Court of New South Wales
Date: 4 June 2019
Judge(s): Bellew J
Background
The State of NSW brought proceedings under the Crimes (High Risk Offenders) Act 2006 (NSW) seeking orders in relation to the defendant, a man who had been sentenced in 1991 for serious sexual offences. He was released on parole in 2012 and had been subject to prior applications under the Act. A preliminary hearing was scheduled for 21 June 2019.
Before the substantive hearing, the defendant filed a notice of motion seeking suppression and non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW). The orders sought to restrict disclosure of information tending to identify the defendant, his history, and the existence of the current proceedings. The application was supported by an affidavit from the defendant's solicitor and was opposed by the State.
The defendant's counsel argued that publicising his identity would jeopardise his ongoing rehabilitation, his employment, and his participation in community social groups. Counsel noted that internet searches already returned a substantial volume of media material about the defendant's offences and prior court history.
Legal Issues
- Whether the court should make suppression and non-publication orders under s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), with secondary reliance on s 8(1)(a)
- Whether the evidentiary threshold of "necessity" under s 8 was satisfied on the material before the court
Decision
Issue 1: The applicable legal test
Bellew J confirmed that the primary objective of court administration is open justice, and any departure from that principle requires satisfying the statutory test of necessity (at [13]). The word "necessary" in s 8 is not to be construed narrowly, but it does impose a high degree of certainty before an order can be made (at [14]-[15]). The onus rests on the applicant to establish, on the balance of probabilities, that an order is necessary, and the strength of the evidence called in support will be determinative of that question (at [15]).
Issue 2: Whether necessity was established on the evidence
The court found that the evidence fell well short of the required standard. Although Bellew J expressed some sympathy for the defendant's position, he identified a total absence of evidence to support the concerns expressed in the solicitor's affidavit regarding the risks to rehabilitation (at [16]). The submissions about potential employment consequences and the defendant's social group memberships were not supported by any evidence (at [8]). Given that necessity demands a high degree of certainty, and the evidence was plainly insufficient, the court declined to make the orders sought (at [16]).
Orders Made
- The notice of motion filed by the defendant on 3 June 2019 is dismissed.
Key Takeaways
- Under the Court Suppression and Non-publication Orders Act 2010 (NSW), the applicant bears the onus of proving on the balance of probabilities that a suppression order is "necessary," a test requiring a high degree of certainty (at [15]).
- The strength of the evidence called in support of a suppression application is directly determinative of whether the necessity standard is met (at [15]-[16]).
- Unsworn submissions from counsel about potential harm to a defendant's employment and social relationships, unsupported by evidence, will not satisfy the necessity threshold (at [8], [16]).
- Open justice remains the primary objective of court administration, and suppression orders represent a departure from that principle requiring clear justification (at [13]).
- In dismissing the motion, the Supreme Court confirmed that sympathy for a defendant's circumstances is not a substitute for adequate evidentiary support when seeking non-publication orders (at [16]).
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
Cases
- Ashton v Pratt [2011] NSWSC 1092
- Fairfax Digital Australia & New Zealand v Ibrahim [2012] NSWCCA 125
- New South Wales v Kay [2017] NSWSC 274