Citation: Stinson (a pseudonym) v Nationwide News Pty Ltd [2022] NSWCCA 235
Court: Court of Criminal Appeal, New South Wales
Date: 4 November 2022
Judge(s): Macfarlan JA; Button J; Wilson J (all agreeing)
Background
The applicant faced charges of sexual assault of a minor and detention of a child for advantage, alleged to have occurred in 1980. He was granted bail following a hearing in the Supreme Court Bails List, during which various documents were tendered, including police facts, a Crown case statement, and the applicant's criminal record. That record included prior convictions for indecent assault and, notably, a murder conviction arising from a 1986 killing committed after the deceased rejected the applicant's sexual advances.
The applicant sought suppression and non-publication orders, as well as orders restricting media access to the bail file. Two factors were central to the application. First, the applicant argued that publicising his prior criminal history, particularly in the context of his relationship to a well-known former sportsperson, would prejudice his right to a fair trial. Second, he argued that publication would cause undue distress and embarrassment to that former sportsperson, who was also a prospective witness.
Complicating matters, the prospective witness and the former sportsperson were one and the same person, and that person had been a child at the time of the alleged offending. Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) independently made it an offence to identify that witness. Two media organisations, Nationwide News Pty Ltd and Daily Mail Australia Pty Ltd, opposed the orders. The Crown largely but not entirely resisted the application.
Legal Issues
- Whether a strong presumption in favour of open justice applied to access to court files and promulgation of bail proceedings that occurred in open court
- Whether anticipated publicity about the applicant's prior criminal history would prejudice the administration of justice and justify suppression under ss 8(1)(a) and 8(1)(d) of the Court Suppression and Non-publication Orders Act 2010 (NSW)
- Whether the potential distress and embarrassment to a famous former sportsperson constituted sufficient grounds for a suppression or non-publication order
- Whether any part of the criminal record warranted suppression, specifically the murder conviction, given the proximity of trial and the similarity between the prior offending and the current allegations
Decision
The Court granted leave to appeal but dismissed the appeal, subject to one significant exception. Button J (with whom Macfarlan JA and Wilson J agreed) confirmed that the presumption of open justice is strong and applies both to access to court files and to the promulgation of facts from proceedings conducted in open court. Because the police facts and Crown case statement would likely form the basis of the prosecution at trial, there was no justifiable basis for concluding that fair and accurate reporting of those documents would taint prospective witnesses or jurors.
On the second ground, the Court held that distress or embarrassment to a person, regardless of that person's celebrity or public profile, does not meet the threshold for an order under the Suppression Act. The fact that the affected person was well known did not elevate the concern to a level capable of overriding the presumption of open justice.
The one exception concerned the applicant's murder conviction and its underlying facts. Button J identified several reasons why suppression of this specific material was necessary to prevent prejudice to the administration of justice. The anticipated significant media coverage, the reasonable proximity of the upcoming trial, and the close factual similarity between the prior murder (committed after rejection of sexual advances against an 18-year-old male) and the current allegations together satisfied the statutory necessity test. By contrast, the applicant's prior indecency convictions did not carry the same prejudicial weight and their suppression was not warranted, particularly given their relevance to the bail decision.
The Court also noted that publication of the judgment itself would have been both futile and potentially in breach of s 15A of the Children (Criminal Proceedings) Act 1987, and accordingly restricted its own publication pending the conclusion of any jury trial.
Orders Made
- Leave to appeal granted
- Interim orders made on 8 September 2022 dissolved
- Any Local Court order restricting access, suppression, or non-publication dissolved
- Media respondents granted access to relevant files in the Local Court, Supreme Court, and Court of Criminal Appeal
- The fact of the applicant's murder conviction and any underlying facts suppressed, with no publication permitted, throughout the Commonwealth of Australia
- That suppression order to expire at the conclusion of any jury trial, or earlier if it becomes clear no jury trial will proceed
- Appeal otherwise dismissed
Key Takeaways
- The strong presumption in favour of open justice extends to access to bail hearing files and to the publication of facts from proceedings conducted in open court, and significant justification is required to displace it.
- Distress or embarrassment to a third party, even a well-known public figure, does not satisfy the necessity test for a suppression or non-publication order under the Court Suppression and Non-publication Orders Act 2010 (NSW).
- Where prior offending is factually similar to current allegations and trial is reasonably proximate, a prior conviction may warrant targeted suppression to prevent prejudice to the administration of justice, even where other material on the same file does not.
- In dismissing most of the appeal, the Court drew a clear distinction between the prejudicial weight of a murder conviction and that of prior convictions for indecent assault, treating them as qualitatively different for the purposes of the necessity analysis.
- Suppression orders of this kind are time-limited: the order protecting the murder conviction was framed to expire automatically upon the conclusion of any jury trial, reflecting the court's concern to confine the restriction on open justice to the period of actual risk.
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 8(1)(a), 8(1)(d), 14(1)(a)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Cases:
- Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465
- John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324
- Nationwide News Pty Ltd v JS and SD [2022] NSWSC 774
- Police v Dunstall (2015) 256 CLR 403; [2015] HCA 26
- R v Christie [1914] AC 545
- R v Dawson [2022] NSWSC 555
- Decision restricted [2022] NSWSC 1213
- State of NSW v Bowdidge (No 2) [2020] NSWSC 159