SUPREME COURT OF NORFOLK ISLAND The Queen v Christian (No 3) [2018] NFSC 5 File number: SCC 1 of 2018 Judge: WIGNEY J Date of judgment: 30 July 2018 Catchwords: CRIMINAL LAW – publication of judgment – application seeking an order that judgments delivered in relation to a bail application and sentence hearing not be published publically, including on the internet – whether the judgments published contravene s 169 of the Criminal Procedure Act 2007 (NI) – where complainant's identity and privacy should be kept confidential and protected – whether judgment reveals the identity of the complainant – where complainant was given a pseudonym – where the matter was heard in open court – where parties did not seek a suppression or non-publication order in relation to any evidence or submissions – whether publication of sentencing judgment on the internet would embarrass or traumatise the complainant – whether suppression of judgments would protect the administration of justice – where public is entitled to know the Court's reasons for imposing a particular sentence – importance of public interest in open justice – application dismissed – Court order that certain, insignificant facts be redacted from the version of the judgments that appear on the internet Legislation: Criminal Code 2007 (NI), s 113(2) Criminal Procedure Act 2007 (NI), s 169 Cases cited: Channel Seven Adelaide Pty Ltd v Stockdale Hall [2005] SASC 307 Matthews v The Queen (No 2) [2013] NSWCCA 194 Date of hearing: 30 July 2018 Registry: Norfolk Island Category: Catchwords Number of paragraphs: 68 Counsel for the Applicant: Mr A M Stewart SC with Ms A D Holliday Solicitor for the Applicant: Commonwealth Director of Public Prosecutions Counsel for the Respondent: The Respondent did not appear or seek to be heard in relation to the application. ORDERS SCC 1 of 2018 BETWEEN: THE QUEEN Prosecutor AND: TIAAN LINLEY CHRISTIAN Defendant JUDGE: WIGNEY J DATE OF ORDER: 30 JULY 2018 THE COURT ORDERS THAT: 1. Within 7 days of the date of this order, the Registrar is to write to the administrators of the websites maintained and operated by the Federal Court of Australia, the Australian Legal Information Institute (AustLii) and Judgments and Decisions Enhanced (Jade) and request that the online versions of the judgments in The Queen v Christian [2018] NFSC 2 (Christian No 1) and The Queen v Christian (No 2) [2018] NFSC 4 (Christian No 2) be redacted as follows: (a) in relation to Christian No 1, the names of the complainant's friends which appear on the last line of [15] and the first and second lines of [17] be deleted or obscured; and (b) in relation to Christian No 2, the last word of the first sentence of [6], the same word which appears as the sixth word of the first sentence of [12] and the seventh word of the third sentence of [12], and the first two lines of [16], other than the word "they" appearing at the end of the second line of [16] be deleted or obscured. 2. The application by the Crown dated 25 July 2018 is otherwise dismissed. REASONS FOR JUDGMENT (Delivered ex tempore, revised from transcript) WIGNEY J: 1 On 5 June 2018, the offender, Tiaan Linley Christian pleaded guilty to five counts of sexual intercourse with a young person contrary to s 113(2) of the Criminal Code 2007 (NI). Sentence proceedings were conducted on that day. On 7 June 2018, the offender was sentenced. I delivered detailed and comprehensive oral remarks on sentence. Those remarks on sentence were subsequently reduced to a written judgment. The complainant's name was not referred to in the sentence judgment. She was referred to as "Ms A". As is apparently the case with other judgments of the Court, the sentence judgment has been able to be accessed via two third-party internet legal databases, and on the Federal Court of Australia's website. The evidence suggests that the judgments have been able to be accessed on those websites since about 4 July 2018. An earlier judgment I delivered refusing the Director's application to revoke the offender's bail is also able to be accessed on those websites. 2 The Commonwealth Director of Public Prosecutions, who is responsible for prosecutions on indictment on Norfolk Island, has filed an application in which she seeks an order that both the sentence judgment and the earlier bail judgment not be "published publically, including on the internet". Despite the broad terms of the order sought by the Director, the Director's main, if not sole, objective was to have the judgments removed from the internet. 3 No other party appeared or sought to be heard in relation to the Director's application. 4 The primary basis of the Director's application is that publication of judgments on the internet contravenes s 169 of the Criminal Procedure Act 2007 (NI) because they contain information from which the complainant's identity might reasonably be inferred. The secondary contention is that, if there are people on Norfolk Island who already know the identity of the complainant, the publication of the judgments on the internet will further embarrass, if not traumatise, the complainant because they reveal the "nitty gritty" of the offences. The Director also appeared to contend that suppression of the judgments would somehow protect the administration of justice by ensuring that future complainants are not frightened off from reporting similar crimes. 5 For the reasons that follow, I am prepared to recommend that certain, relatively insignificant, facts be redacted from the versions of the judgments that appear on the internet. The Director's application should otherwise be dismissed. 6 I should emphasise at the outset that I unreservedly accept that, as in all matters of this nature, all reasonable steps should be taken to ensure that the complainant's identity and privacy are protected and preserved. That said, I categorically reject any suggestion that the publication of the sentence and bail judgments in any way contravened s 169 of the Criminal Procedure Act, or otherwise tended to reveal the complainant's identity or impinge on her privacy. That includes the publication, and continuing publication, of the judgments on third-party legal data bases on the internet, and on the Federal Court's website. 7 I also reject the Director's contention that preventing the publication of the judgments on the internet would be in the public interest, or would be necessary to prevent prejudice to the proper administration of justice. Once it is accepted that publication of the judgments does not tend to reveal the identity of the complainant, in my view the significant public interest in open justice supports the publication of the judgments on the internet and outweighs the other considerations relied on by the Director in support of her application. That is all the more so given that I do not accept the Director's contention that the availability of the judgments on the internet is likely to further embarrass, let alone traumatise the complainant, or the Director's contention that the publication is likely to deter anyone on Norfolk Island from communicating or cooperating with the police. background 8 Before detailing the evidence adduced and the submissions made in support of the Director's application, I should emphasise a few important points. 9 First, I accept that the Court has an inherent power to restrict the publication of its judgments, including on the internet. It would plainly be open to the Court to exercise that power if publication of a judgment would contravene s 169 of the Criminal Procedure Act. Indeed, it is difficult to think of any circumstances where the power would not be exercised in such a case. 10 It might also be appropriate to exercise the power in other circumstances where the publication of a judgment might have deleterious effects, such as if it was likely to cause further or unwarranted embarrassment to a complainant in a sexual offence, or if for some reason it might deter victims of similar offences from reporting crimes perpetrated against them to the police. As I have already noted, however, in exercising the discretion in those other circumstances, the Court would generally be required to weigh in the balance the important public interest in open justice. That would include the general desirability of ensuring that members of the public be able to scrutinise and, if thought appropriate, criticise the Court's reasons for imposing sentences in particular cases. The publication of the Court's judgments on the internet might well be thought to facilitate open justice in that regard. 11 Second, in this matter, both the sentence proceedings and the earlier application by the Director to revoke bail were heard in open court. In the course of the proceedings, both the Crown prosecutor and counsel for the offender referred at length to, and made detailed submissions concerning, the relevant facts of the offences, including many of the facts that the Director now alleges would tend to reveal the complainant's identity. The Crown prosecutor also tendered, and read from, the complainant's victim impact statement. Neither the Director, nor any other party or interested person, suggested that the Court should be closed during the hearing of the proceedings, or that a suppression or non-publication order should be made in relation to any aspect of the evidence or submissions. Members of the public and, indeed, the media were free to attend the proceedings and free to disseminate or publish any report in relation to them. No order was sought restricting them from doing so. 12 Second, after reasons were delivered orally in both sets of proceedings, neither the Director, nor any other party or interested person, sought a suppression or non-publication order in relation to the reasons. It was indicated in open court on both occasions that a written version of the reasons would, in due course, be published. It was not suggested at the time that the written version of the reasons, when prepared, should not be "published publically", whatever that may mean. Putting aside publication on the internet, it would have been open to members of the public to ask for, and be provided with a copy of, the written reasons when they were eventually published. 13 Third, during the sentence proceedings and prior to delivery of the oral remarks on sentence, I indicated that I would not name the complainant in my remarks on sentence, but would refer to her by a pseudonym in the form of a letter or letters. There was some discussion, and ultimate agreement, about the appropriate pseudonym. Importantly, in the course of that discussion, it was not suggested by the Director's experienced counsel, her instructing solicitor, or anyone else, that any fact or circumstance referred to in my remarks on sentence was capable of revealing the complainant's identity. It was certainly not contended at that time that my remarks on sentence were capable of contravening s 169 of the Criminal Procedure Act. Nor was it suggested that the publication of my written reasons, when revised and settled from the transcript, should be restricted in any way. 14 Fourth, there is no evidence whatsoever that the complainant herself, or any member of her family, has any concerns about the fact that the sentence judgment or the bail judgment are publically available, including on the internet. There is no indication that the complainant's views, or the views of her family, were sought or taken into account by the Director. Indeed, it became apparent during the course of argument that the complainant had not been made aware of the Director's application. There is no evidence or indication that the complainant, or any member of her family, considers that the sentence judgment tends to reveal the complainant's identity, or that the publication of the reasons could cause her any further embarrassment, or that the complainant has any concerns whatsoever in that regard. 15 While it may not always be necessary for a complainant's views to be sought in matters of this kind, particularly where it is clear that the judgment might tend to reveal the complainant's identity, it undoubtedly would have been a weighty consideration if there had in fact been evidence that the complainant was upset and traumatised by the continuing availability of the judgment on the internet. As it was, the Court was invited to in effect speculate about that fact. 16 Fifth, the evidence, both in the sentence proceedings and the evidence adduced by the Director on this application, tends to suggest that this case had been the subject of some discussion and "gossip" on Norfolk Island since the time the offender was charged, particularly during the period leading up to his eventual pleas of guilty. That is clear from, amongst other things, the complainant's victim impact statement. This unfortunate aspect of the matter, and the lamentable treatment of the complainant by some people in the Norfolk Island community, was the subject of adverse comment in my remarks on sentence. 17 For present purposes, the important point is that the reality would appear to be that many people on Norfolk Island most likely already know the identity of the complainant and at least some of the details of the offences and offending conduct. It may also be readily inferred that anyone who does not now know the complainant's name, but for some reason wants to find it out, could readily ascertain her name from other people on the island who already know it, without troubling themselves to locate the sentence or bail judgments on a legal database on the internet. The same could be said about information concerning the nature or circumstances of the offending conduct. 18 Sixth, and related to the previous point, there is no evidence that anyone on Norfolk Island, other than a former government law officer, has accessed, or is even likely to access the judgments on the internet. The Director's application appeared to be based on the premise that students in the complainant's school on Norfolk Island, and others with some prurient or untoward interest in the matter, would, or would be likely to, seek to access the judgments on the internet. That is not only a matter of pure speculation, it is something which I consider to be most unlikely in all the circumstances. There is no evidence to suggest that it is widely known, other than perhaps to lawyers, academics and perhaps the media and others with a legitimate interest in the criminal law, that judgments of sentencing courts, including this Court, are available on the internet. Nor is there any evidence to suggest that the judgments in this matter would be able to be readily located by an internet search, other than perhaps to people with knowledge about the existence of legal databases that contain court judgments. It would appear from the evidence that even the relevant legal officer from the Director's office was not aware that judgments of this Court are available on the internet. the evidence 19 The Director's application is supported by affidavit evidence from five people. 20 Ms Kay Clifton is a Detective Sergeant with the Australian Federal Police. She has had some responsibility for policing on Norfolk Island, at least in an administrative sense. It would appear that she is not based on Norfolk Island, but she has visited the island in fairly recent times. In paragraphs 6 and 7 of her affidavit, Ms Clifton stated as follows: During my visit to Norfolk Island during November 2017, I was advised by members of the community that traditionally victims were generally not willing to come forward to provide statements to the Norfolk Island Police. The community members advised this was due to the community being small and the victims being concerned about how they would be treated if the community knew a complaint had been made. During the same visit, the community members further advised me that they believed the community are now more willing to provide police with information as there is increased trust with the Norfolk Island Police Force. 21 Ms Jane Walsh is a Federal Agent with the Australian Federal Police. She was deployed to perform general policing duties on Norfolk Island for a five-week period in September 2017. She returned there for a further 10-day secondment in November 2017. Having regard to that fairly limited experience, she could hardly be expected to be an expert in relation to the Norfolk Island community. In any event, she deposed to the fact that the population of Norfolk Island is approximately 1,750 people. She gave some general evidence about the nature of the community on Norfolk Island. Like Ms Clifton, she also referred to the apparent reluctance of the community on Norfolk Island to report crimes, particularly crimes of a sexual nature. She stated as follows in paragraph 7 of her affidavit: … A number of parents of teenage and/or young girls I spoke with voiced their concerns about having their children make statements in regards to sexual assaults. They were concerned about Community members talking and gossiping about what was going on. They were concerned about the impact this would have on their children growing up in the small island community and that there [sic] child would always be remembered as the sexual assault victim. They were concerned about their daughters being labelled as doing the wrong thing, when they in fact had not. They were also concerned that there were only a small number of girls in their pre-teen and teenage years on the island and it would not take long for other community members to work out which female child was involved in the sexual assault investigation. 22 It is not readily apparent that the discussions with the members of the community referred to by Ms Walsh directly related to this matter. Nor is it readily apparent that the occurrence of sexual assault is common or frequent on Norfolk Island, such that the concerns expressed by the people spoken to by Ms Walsh are frequently enlivened. 23 Ms Sarah Jason is a member of the Norfolk Island Police Force. She has been employed in that capacity since 2004. She was the informant in this matter. In her affidavit, she gives some fairly general evidence about what she calls the "rumour mill" on Norfolk Island and the general reluctance of complainants in matters concerning sexual assaults to report crimes to the police. She referred to some of the discussions she had with the complainant in this matter. It is unnecessary for present purposes to recite the content of those discussions. Suffice it to say that, they were along the same lines as the statements made by the complainant in her victim impact statement. As noted earlier, the victim impact statement was tendered, and part of it was read in open court during the sentence proceedings. It was also the subject of detailed submissions in the course of the sentence proceedings. 24 Mr Frazer Howard is also a member of the Norfolk Island Police Force. He deposed that, on 16 July 2018, he received an email from the former Crown prosecutor and chief counsel for Norfolk Island Regional Council, which informed him that the sentence judgment had been published on the "Australian Legal Indexes law reporting website for the Norfolk Island Supreme Court decisions". 25 Finally, the Director relies on an affidavit from Ms Megan Cooper, who is a legal officer employed in the Director's Brisbane office. In general terms, she deposed to the fact that she was unaware, or at least did not contemplate, that the bail and sentence judgments would be published on the internet. As noted earlier, it would appear that, perhaps like many others, Ms Cooper was unaware that judgments of this Court, including the sentence and bail judgments in this matter, are able to be accessed on the internet. That rather suggests that it would be even more unlikely that the average resident of Norfolk Island would be aware of that fact. do the judgments tend to reveal the complainant's identity? 26 As I observed earlier, the Director's primary submission was that the publication of the sentence judgment and the bail judgment somehow contravened s 169 of the Criminal Procedure Act. It should be noted in this context that if, as the Director contends, the judgments tend to reveal the complainant's identity, s 169 was breached when they were delivered orally, and certainly when the written version of the judgments were published and able to be obtained by members of the public. The Director's submissions, however, were directed solely at the publication on the internet. 27 The Director emphasised that s 169 of the Criminal Procedure Act extended to prohibiting the publication of "a reference or allusion from which the complainant's identity might reasonably be inferred". It was submitted, by reference to authority in relation to analogous statutory provisions in other jurisdictions, that a breach of s 169 will occur "wherever there is publication of material describing the victim, sufficient, when added to knowledge already possessed by members of the community, to enable identification": Channel Seven Adelaide Pty Ltd v Stockdale Hall [2005] SASC 307 at [11]. It should be noted that most of the cases concerning contravention of provisions similar to s 169 of the Criminal Procedure Act concern publications by the media. The statements made in those cases must be approached and considered in that context. 28 The difficulty for the Director, however, is that neither of the judgments contain any references or allusions from which the complainant's identity might reasonably be inferred. Nor do they contain information concerning the complainant which, taken together with information which had been proven to be already possessed by members of the community, was sufficient to enable identification. 29 Counsel who appeared for the Director, when pressed, identified six categories of information in the sentence judgment that, in the Director's submission, might tend to identify the complainant. 30 The first category was said to be the offender's name or information which might tend to identify the offender. I am unable to see how the revelation of the offender's name would tend to identify the complainant's identity, other than perhaps to people who already knew the details of the case, including the complainant's identity. 31 The second category was information that the complainant lived on Norfolk Island with her family. That is hardly an identifying feature. As noted earlier, the population of Norfolk Island is in the vicinity of 1,700 people. Even if the fact that the complainant lived on Norfolk Island with her family was not expressly referred to in the judgment, most readers would in any event be likely to infer that fact from the very nature and circumstances of the offence. The only alternatives would be that the complainant was a visitor to the island, or did not live with her family. 32 The third category of information relied on by the Director was information that revealed that the complainant was 13 years old and was in year 8 at school at the time of the offences. It is not known how many 13-year olds resided in Norfolk Island at the time of the offences. As has already been noted, however, one of the police officers, Ms Walsh, gave hearsay evidence that some members of the community, albeit not necessarily in the context of this specific case, had expressed concern that there were "only a small number of girls in their pre-teen and teenage years on the island". In light of that evidence it may perhaps be accepted that, by identifying the complainant's age, the judgments tend to narrow down the number of people on Norfolk Island who could be the complainant. That said, the nature and terms of the offences committed by the offender would in any event reveal that the complainant must have been between the age of 10 and 16 years at the time of the offence. 33 I doubt that it could seriously be said that the identification of the complainant's age could amount to a reference or allusion from which the complainant's identity could reasonably be inferred, at least unless considerably more information was already known about the complainant and the nature and circumstances of the offences. I should also note that, in its submissions on sentence made in open court, the Crown emphasised the complainant's age as an aggravating feature of the offence. It was, of course, not suggested by the Crown at that time that the complainant's age was a fact which might tend to identify her. Nor was it suggested that the Court should be closed during the course of the sentence hearing because the Crown's submissions would tend to reveal the complainant's identity. When I delivered my remarks on sentence orally, the Crown did not suggest that the written version of my reasons should be redacted to delete any reference to the complainant's age because that would tend to reveal her identity. 34 There could be little doubt that the complainant's age was an important consideration in assessing the extent of the criminality involved in the offending conduct, as was submitted by the Crown. That is one of the reasons it is referred to in the sentencing judgment. It does not follow that it tends to identify the complainant. In all the circumstances, I do not consider that the references in the judgments to the complainant's age present such a risk that the complainant's identity will be revealed as to warrant the redaction of those references from the published reasons. 35 The fourth category of information relied on by the Director was the description of the parental or familial relationship between the complainant and the person with whom she lived on Norfolk Island. I have, for reasons that will become apparent, avoided using the precise description of that relationship. The relevant word appears in the first line of paragraph six and lines one and two of paragraph 12 of the sentence judgment. I again do not consider that this information would amount to a reference or allusion which might reasonably identify the complainant. Nevertheless, as this is not a particularly material fact in relation to either the reasons for imposing the sentences that were imposed on the offender, I am prepared to recommend that the references to that parental or familial relationship be redacted from the published version of the sentence judgment. 36 The fifth category of information concerns a particular trip that the complainant and her family embarked on at a particular time referable to the offences. That was simply part of the factual narrative of the events around the time of the offences. I do not consider that it is a fact that would tend to reveal the complainant's identity, other than perhaps to those who already know the complainant and her family well enough that they probably already know that she is the complainant in this matter. Nevertheless, as it is again a fairly insignificant fact in the scheme of things, I am again prepared to recommend that the reference to that trip be redacted from the published version of the sentence judgment. That reference appears on the first two lines of paragraph 16 of the sentence judgment. 37 There is an additional or sixth category of information that appears only in the bail judgment. That information concerns the names of two of the complainant's friends. That information was contained in the evidence and submissions made by the Director in open court in support of the application to revoke the offender's bail. As I have already indicated, it was not suggested at the time of that application that the information should be the subject of a non-publication or suppression order. The Director raised no objection about the fact that the information was reproduced in the bail judgment when reasons were delivered orally. Nevertheless, it is information which should be redacted from the internet versions of the bail judgment. It should be noted in that regard that the names of the complainant's friends were anonymised in the sentence judgment. 38 Despite being willing to recommend that some of the information contained in the judgments be redacted from the published versions of the judgments, I should reiterate that I categorically reject the contention that the six categories of information identified by the Director in support of her application, considered individually, collectively or cumulatively, contain references or allusions from which the complainant's identity might reasonably be inferred. Nor do the categories of information relied on by the Director provide any support or justification for the Director's contention that the judgments should not be "published publically, including on the internet", because they tend to reveal the complainant's identity. Should the judgments be removed from the internet to avoid further embarrassment to the complainant? 39 The second justification advanced by the Director for wanting to prevent the publication of the bail and sentence judgments on the internet is that the publication of the judgments will somehow embarrass or even traumatise the complainant. That argument, it appears, effectively presupposes that many people on Norfolk Island already know the identity of the complainant. That rather says something about the utility of suppressing the publication of the judgments so as to avoid the identification of the complainant. In any event, in those circumstances, the Director contends that the publication of the judgments would be likely to further embarrass the complainant because they contain what counsel referred to as the "nitty gritty" of the offences. 40 The Director's contention that the continuing availability of the judgments on the internet will cause unwarranted embarrassment and trauma to the complainant has no merit and provides no proper justification in the circumstances for removing the judgments from the internet. That is so for a number of reasons. 41 First, as has already been noted, there is no evidence to suggest that the complainant has expressed any concern or alarm about the publication of the judgments on the internet or the details of the offences contained within them. The suggestion that the complainant would be likely to be traumatised by the publication of the details of the offences is pure speculation. It appears to be based on nothing more than the content of the judgments. 42 Second, the description of the facts surrounding the offences in the judgment is far from graphic, let alone shocking. Indeed, in some respects, the judgments contain less graphic detail than the information referred to by the Crown prosecutor, in open court, during the sentence proceedings. There is no detail in the judgments that could seriously be described as unnecessarily salacious or embarrassing. It is clear from the nature of the offences themselves that they involve sexual intercourse. The judgments contain little information beyond that, other than the location and times at which the sexual intercourse occurred. 43 The Director identified some details of the description of the offences and the surrounding circumstances which, it was submitted, could embarrass the complainant. I do not propose to repeat that information here. I am unable to accept that the facts relied on by the Director would be likely to cause any significant embarrassment to the complainant, particularly in the absence of any evidence concerning the complainant's attitude to the judgments. It should also perhaps be reiterated in this context that the facts that are now said to be likely to cause embarrassment and trauma to the complainant were referred to at length by the Crown prosecutor in open court in the course of her oral submissions during the sentence proceedings. That was no doubt because they are facts that are plainly relevant to the assessment of the criminality involved in the offences. It was not suggested at the time that those submissions were made that the publication of them in my judgment would unnecessarily embarrass or traumatise the complainant. Nor did the Crown, or anyone else, apply for a suppression or non-publication order in respect of any of the relevant facts when I delivered by oral remarks on sentence. 44 Third, given that there has already been a considerable amount of gossip amongst some people on Norfolk Island concerning the offences, the publication of the actual facts of the offending conduct may in fact be a positive as far as the complainant is concerned. That is because the public will at least have available to it an accurate record of the facts, as opposed to what appears to be mere gossip and perhaps innuendo. This inference is as open on the material as the inference that the Director urges the Court to draw. 45 Fourth, and related to the third point, the sentence judgment contains what some may regard as potentially important observations concerning community attitudes to the type of offences committed by the offender and, perhaps more significantly, the treatment of the complainant by some parts of the Norfolk Island community. I do not propose to repeat those parts of the sentence judgment. It is sufficient to note that they are referred to in paragraphs 63 to 67 and 79 of the sentence judgment. 46 Any potential embarrassment to the complainant which may arise from the disclosure of some of the circumstances of the offences would, in my view, be neutralised, if not outweighed, by those parts of the sentence judgment. They provide support not only to the complainant, but to other persons who might fall prey to such offences, and who might suffer from the unfortunate attitude that some sections of the public have to the victims of such offences. They may hopefully change the negative, and potentially harmful, attitude that some members of the community have displayed in the past. Suppressing the judgment may well have the opposite effect, or at least allow such negative attitudes to linger on. 47 Fifth, in the course of argument, counsel for the Director conceded that the sentence judgment should continue to be publicly available, other than on the internet, to persons who have a legitimate interest in, or reasons for reading, the judgment. That would include people who want to know the reasons why the particular sentences were imposed, including lawyers, academics and even the media. It would also include any member of the Norfolk Island community who was concerned to know the reasons for the sentences ultimately imposed. 48 It is no doubt important, and in the broader public interest, that members of the public have access to the Court's reasons for imposing sentences. The Director accepted that anyone who approached the Court to obtain a copy of the judgment should be entitled to receive a copy of it. Once that is accepted, it is difficult to see why the judgment should be removed from the internet. The internet is simply one means by which members of the public might obtain copies of otherwise public judgments. Indeed, for some people it may be the only feasible way to obtain copies of judgments. 49 Sixth, the Director's concern appears to be that the judgments should not be so readily available that they can be accessed by someone who may have a nefarious or improper reason for accessing them, such as someone who just wanted to find out salacious details that could then be the subject of further gossip, be it in the schoolyard or elsewhere. The difficulty with that rather speculative submission, however, is that there is no evidence whatsoever that anyone has accessed the judgments, or is likely in the future to access the judgments, for such a nefarious purpose. Indeed, as has already been observed, it is rather doubtful that such people would know that the judgments are available on the internet, or would know how to access them on the various third-party legal databases. Moreover, even if they did, for the reasons already given they would be sadly disappointed as there are no such salacious details in the judgment, and little, if any, fodder for any further gossip. 50 In all the circumstances, I am not satisfied that there is any real risk or likelihood that the continuing availability of the judgments on the internet will cause any further embarrassment, let alone trauma, to the complainant. Even if there was such a risk, it is a very small and speculative risk and, in the particular circumstances of this case, I am satisfied that the public interest in open justice, and the importance of sentence judgments being open and available to public scrutiny, weighs heavily in favour of allowing the judgments to remain publicly available on the internet. Will the availability of the judgments on the internet deter victims from communicating with the police? 51 The third justification advanced by the Director in support of the proposition that the judgment should be removed from the internet is equally unmeritorious. The Director contends that the publication of the judgments on the internet would somehow dissuade complainants on Norfolk Island from lodging complaints in similar cases in the future. That contention appears to be based on the rather general evidence of several police officers about the reluctance, particularly in the past, of residents of Norfolk Island to cooperate with the police lest they become the subject of gossip themselves. 52 The problem for the Director, however, is that the evidence provides little, if any, support for the contention advanced by her. 53 None of the police officers who swore affidavits specifically linked the past reluctance of members of the Norfolk Island community to communicate with the police to the publication of sentence or bail judgments, on the internet or otherwise. Nor did they link that past reluctance to any perception that the Court would not protect the privacy of complainants. Certainly none of them expressed a view specific to this matter. The generality of the evidence of the police officers tended to suggest that the reluctance of members of the Norfolk Island community to communicate with the police may well have emanated from some other perhaps deep-seated historical or societal factors, though some of them may not be necessarily unique to Norfolk Island. In any event, I reject the contention that the evidence supported the contention that the retention of the judgments on the internet would be likely to dissuade future complainants in such matters from coming forward to lodge complaints with the police. 54 Indeed, on one view, the continuing availability of the sentence judgment on the internet could have the opposite effect. 55 The sentence judgment, so far as is possible, seeks to protect the identity of the complainant and deal with the offence in a sensitive, and not sensationalist, way. In that regard, publication of the sentence judgment would, if anything, tend to assuage any concerns that any victims of similar offences might have about coming forward to report the crimes perpetrated against them. Any concerns held by such persons would be further assuaged by the observations made in paragraphs 63 to 67 of the judgment. Those observations make it plain that the complainant in this matter did the right thing in reporting her crimes, and that the attitude that has been displayed by some members of the community towards the complainant is utterly unacceptable. Those words are likely to further reassure victims of similar offences that they should report any such crimes to the police. They are hardly likely to deter such persons from coming forward in the future. 56 It follows that the Director's suggestion that there is some risk that the publication might deter people on Norfolk Island from communicating or cooperating with the police provides no sound basis for removing the judgments from the internet. It is a suggestion that is not soundly based, and not demonstrated by the evidence. If anything, the circumstances are such that publication of the judgments might in fact encourage those members of the community who have expressed a reluctance to come forward in the past to change their attitudes. That is a manifestation of the public interest in open justice. Other considerations 57 Finally, the Director submitted that courts in other jurisdictions in Australia that impose sentences for offences of a sexual nature involving minors do not, as a matter of practice, make their reasons for judgment available publicly on the internet. That submission was said to be based the Director's experience. 58 Whatever might have been the basis for that submission, it has no merit. 59 In the course of considering the appropriate sentence in this matter, I had recourse to dozens of judgments of various courts, including courts of criminal appeal, in most of the Australian states and territories. Some of those judgments are referred to in paragraphs 48 to 60 and 113 to 115 of the sentence judgment. Virtually all of those authorities, other than the very old ones, are available on various legal databases on the internet. Like the sentence judgment in this matter, the victim's name is anonymised in the other judgments by the use of letters. They all included descriptions of the nature and circumstances of the offences, including, in many cases, the name of the offender and the age of the victim. Some of them involved far more serious and graphic conduct than the conduct in this case. Some of them involved events that occurred in relatively small towns or cities. The existence of so many cases which are available on the internet rather contradicts the practices and experience referred to by the Director in her submissions. 60 The Director was unable to point to a single case in which a court has ordered that a sentence judgment delivered publicly and not subject to non-publication or suppression orders should nonetheless not to be published on the internet for any of the reasons advanced by the Director in this matter. Courts frequently do restrict the publication of their judgments on the internet where the publication might result in an unfair trial in ongoing criminal proceedings. For example, judgments involving pre-trial rulings concerning the admissibility of evidence would generally not be published given the risk that the jury in the forthcoming trial might access the judgments. Similarly, a sentence judgment concerning an offender who has pleaded guilty may not be published if there is a co-accused who will be tried before a jury. Those types of cases are fundamentally different to, and distinguishable from, the circumstances of this case. 61 In Matthews v The Queen (No 2) [2013] NSWCCA 194, the Court of Criminal Appeal of the Supreme Court of New South Wales considered an application by an offender that the court's reasons for dismissing his appeal "not appear on Caselaw or other public databases and [that] a non-publication order' be imposed" (at [2]). 62 The court said in relation to that application (at [3]): At the time judgment was handed down the parties were advised that the principal judgment would not appear on the website, www.caselaw.nsw.gov.au ("Caselaw"), until further consideration of the submission. It should be noted that this indication was not an "order" of the Court, whether made under the Act or otherwise. It is not necessary to determine whether a non-publication order under the Act is one that can be made against the Court itself so as to prevent or preclude steps being taken to publish a judgment on Caselaw. Administratively at least it is not unusual for judgments of this Court to be handed down and in that sense "published", but not "published" in the sense of being uploaded immediately onto Caselaw. The most common circumstance in which that occurs is when the judgment has the potential to affect outstanding criminal proceedings. By not placing the judgment immediately on the website the potential contamination of a jury pool by the wide dissemination of material adverse to an accused is minimised. However this type of (in)action does not constitute any form of non-publication order or the making of such an order under the Act. Thus in such cases there is no immediate impediment to the parties and others reproducing the judgment, including on a website, although they do so subject to the law of contempt. Of course in some, albeit rare, cases a non-publication or suppression order directed to preventing or limiting such dissemination is made in respect of part or all of a judgment of this Court in order to protect the integrity of a forthcoming proceeding or to preserve some other important interest. It is unnecessary to describe such cases further. 63 Those observations are perhaps apposite to this case. The "Caselaw" website is a website maintained by the Supreme Court of New South Wales. It should be emphasised, in that context, that the judgments in this matter have not been published on any website maintained by the Court. They have been published on the Federal Court's website and websites maintained by two independent bodies. It is unclear exactly what procedures or protocols exist in relation to making the Court's judgments available for publication on those websites. It does appear to be the case, however, that most of the Court's judgments are routinely published on such websites. 64 The Court of Criminal Appeal in Matthews ultimately dismissed the application to restrict the publication of the judgment on the Supreme Court's website. One of the reasons given by the court for dismissing the application was that much of the information that the applicant wanted suppressed had been tendered in open court during the trial and had been canvassed in submissions at the hearing of the appeal. As I noted earlier, the same considerations exist in this matter. Here the information has also already been available on the internet for a number of weeks. Conclusion 65 I should reiterate that it is readily accepted that in cases such as the present, it is vitally important for the Court to endeavour, as best it can, to keep the identity of the complainant confidential. The Court should also endeavour to minimise any potential for further embarrassment or trauma being suffered by the complainant. There is, however, a balance that must be struck in such cases. There is a fundamental public interest in open justice. The public is entitled to know the Court's reasons for imposing a particular sentence in any given case. The Court's reasoning process should be fully open to public scrutiny. It follows that some details concerning the complainant and the offending behaviour must be canvassed in the Court's reasons. The reasons should also generally be able to be readily accessed by the public. That is facilitated by publication of judgments on the internet. 66 I have, in this case, endeavoured to strike the correct balance. I have seen no evidence to suggest that I have failed in my endeavours. I do not consider that the information contained in the judgments reveals the identity of the complainant. There are no references or allusions from which the complainant's identity might reasonably be inferred. I am also not satisfied that the availability of the judgments on the internet is likely to cause any further unwarranted embarrassment or trauma to the complainant, or is likely to deter future complainants or others from cooperating with the police on Norfolk Island. In relation to the latter two considerations, in my view, the public interest in open justice well outweighs any risk that the publication of the judgments might have those adverse effects. 67 The Director has accordingly not demonstrated any good reason for why the judgments should not remain on the internet. 68 Other than making orders recommending the redaction of certain parts of the judgments from the internet versions, the Director's application should be dismissed. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate: Dated: 30 July 2018