Citation: Edwards v R (No 1) [2022] NSWSC 1343
Court: Supreme Court of NSW
Date: 4 October 2022
Judge(s): Beech-Jones CJ at CL
Background
The applicant faced five charges of dangerous driving causing death, arising from a crash on 6 September 2022 in which five teenage passengers were killed. The proceedings attracted significant public and media attention. The Court had anticipated this interest and, before the bail hearing, asked the parties whether they objected to media representatives accessing any material tendered on the application.
In response, the applicant sought non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) covering four categories: the identities of affidavit deponents (other than his parents and solicitor), the addresses of those deponents, the applicant's own address and employment details, and the full contents of a psychologist's report prepared for the bail application.
No evidence was read in support of the application. Submissions from the Bar table asserted the orders were necessary to prevent harassment of, or distress to, the applicant, his family, and character witnesses, and that publication of the psychologist's report would breach the applicant's privacy and worsen his mental health.
Legal Issues
- Whether the non-publication orders sought satisfied the statutory threshold of being "necessary" under s 8(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW)
- How the open justice principle under s 6 of the Act applies to bail applications
- The distinction between the duty of open justice and any obligation on courts to distribute or publish material provided in proceedings
- The appropriate approach to media access to affidavits, address details, and sensitive medical or psychological reports in bail matters
Decision
The "necessary" threshold was not met
The court dismissed all four non-publication orders. The statutory word "necessary" is a strong one, stronger than "appropriate" or "desirable," and reflects the Act's primary objective of safeguarding open justice (at [5]). Assertions from the Bar table about possible harassment or distress, unsupported by evidence, could not satisfy that threshold (at [7]). The court stated it would not attribute malevolent intent to the media or public without substantial proof (at [7]).
Open justice versus distribution of court materials
The court drew a clear distinction between the duty to pursue open justice and any supposed obligation to distribute materials produced in proceedings as though courts were content providers (at [8]). The question of whether the court would grant media access to tendered material is a separate process from the making of suppression or non-publication orders under the Act, and that access process is subject to resource constraints and legitimate privacy concerns (at [8]-[9]).
Appropriate approach to media access in bail proceedings
Despite refusing the formal orders, the court outlined how it would exercise its discretion over media access. Affidavits would be accessible but with deponents' addresses redacted, mirroring the approach taken when witnesses give oral evidence (at [10]). The court indicated it would rarely, if ever, grant media access to psychological or medical reports produced on bail applications, particularly for a young applicant, while noting that relevant aspects of such a report may need to be referred to in published reasons (at [10]). Because the non-publication orders as drafted would have prevented publication of the court's full reasons, they were also incompatible with open justice at a fundamental level (at [10]).
Practical constraints on bail applications
The court noted that bail applications frequently involve conjecture about matters such as the strength of the Crown case, criminal associations, or flight risk, and that courts hearing bail matters are not bound by the rules of evidence, meaning potentially prejudicial material can be provided (at [9]). These features require care about freely distributing all materials provided to the court, even in the absence of formal suppression orders (at [9]).
Orders Made
- Application for a non-publication order dismissed
Key Takeaways
- Under s 8(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the word "necessary" sets a high bar: bare assertions from the Bar table about potential harassment or distress, unsupported by evidence, are insufficient to obtain a non-publication order (at [7]).
- Section 6 of the Act requires courts to treat open justice as the primary objective, meaning the starting assumption is that any word spoken or document tendered in an open bail application can be freely reported (at [5]-[6]).
- A clear distinction exists between the open justice duty, governed by the Act, and the separate question of whether a court will grant media access to specific materials produced in proceedings, which is governed by discretion, resources, and legitimate privacy concerns rather than the Act itself (at [8]-[9]).
- Psychological and medical reports produced on bail applications occupy a different category from affidavit evidence: even without a formal non-publication order, such reports would rarely be made available to media representatives, though relevant aspects may appear in published reasons (at [10]).
- Non-publication orders drafted so broadly that they would prevent a court from publishing its full reasons strike at the heart of open justice and are unlikely to be granted (at [10]).
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW)
Cases
- Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21
- Matthews v R (No 2) [2013] NSWCCA 194
- Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403