Supreme Court New South Wales Medium Neutral Citation: BSM1 v Trustees of the Vincentian Fathers [2020] NSWSC 1439 Hearing dates: 07 August 2020 Date of orders: 19 October 2020 Decision date: 19 October 2020 Jurisdiction: Common Law Before: Garling J Decision: Notice of Motion filed 11 June 2020 dismissed Catchwords: CIVIL PROCEDURE — Suppression and non-publication – s 8(1) of the Court Suppression and Non-publication Orders Act 2010 – whether providing a statement during police investigation makes an individual a 'witness' under s 8(1)(d) – whether non-publication is necessary to protect psychological safety under s 8(1)(c) Legislation Cited: Court Suppression and Non-publication Orders Act 2010 Cases Cited: AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46; (2019) 97 NSWLR 1046 D1 v P1 (No 2) [2012] NSWCA 440 DRJ v Commissioner of Victim's Rights [2020] NSWCA 136 Hogan v Australian Crime Commission [2010] HCA 2; (2010) 240 CLR 651 John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) NSWLR 465 Nationwide News Pty Ltd v Qaumi [2016] NSWCCA 97 Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: BSM1 (P) Trustees of the Vincentian Fathers (D) Commissioner of Police (Applicant) Representation: Counsel: J Hillier (P) D Vella (D) N Evans (Applicant) Solicitors: Ken Cush & Associates (P) Makinson d'Apice Lawyers (D) Crown Solicitor for NSW (Applicant) File Number(s): 2019/330515 Publication restriction: Not applicable Judgment 1. This is an application made by Notice of Motion filed on 11 June 2020, by the Commissioner of Police for New South Wales. 2. The Commissioner seeks an order for the non-publication of any information or evidence that would reveal the identity of two individuals named in documents to be produced in answer to a Subpoena to Produce Documents issued on 18 May 2020 by this Court at the request of the defendant in the proceedings. 3. The documents to be produced on subpoena were not tendered to, or in any other way, put before the Court. Notice of Motion 1. The Notice of Motion of 11 June 2020 is supported by the Affidavit of Detective Chief Inspector Bruce Grasswick sworn 9 June 2020. 2. The non-publication order is sought pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 ("the Act"), and in accordance with the grounds set out in ss 8(1)(a), (c), (d) and (e) of the Act. However, in oral submissions, the Commissioner did not rely on all of these grounds, but only raised the grounds found in ss 8(1)(c) and (d) in seeking to persuade the Court to make the orders sought. I will limit my principal consideration to these two provisions. 3. The evidence before the Court upon which the Commission relies was that, in broad terms, the publication of any information identifying the two individuals would be likely to cause undue distress or embarrassment, that any identification would contradict assurances made to the individuals by police officers that their identities would remain protected if they provided a statement, and that the mental health and safety of the individuals may be at risk through publication. 4. The Commissioner in his application to the Court only sought to base the orders upon the grounds in the Act. No claim for public interest immunity was advanced by the Commissioner as the basis for restricting publication of parts of the produced documents, including the names of the two individuals. Evidence 1. The evidence in support of the Motion established that the police had undertaken investigations into a significant number of complaints of aggravated sexual assault and aggravated indecent assaults allegedly perpetrated by Mr Brian Spillane whilst he was a teacher at St Stanislaus College in Bathurst. Complaints about other teachers and staff were also investigated by police. 2. The two individuals named in the documents being produced under subpoena did not make any complaint that either of them had been the subject of any criminal behaviour on the part of Mr Spillane, or anyone else. 3. These two individuals were described in the evidence as "witnesses arising out of" the police investigation of Mr Spillane. Nothing further is contained in the evidence about them, or their individual circumstances. Whether the term "witnesses" is an apt description cannot be determined. 4. Mr Grassick, in his affidavit, expressed a belief based on his knowledge of the disposition of unidentified witnesses (other than the individuals the subject of the proposed non-publication orders) that there may be undue embarrassment caused to these individuals if their names were to be published. In so saying, he noted that one of the individuals expressed the view that he did not wish to have further contact with the police, and the other did not provide a statement to the police investigators. 5. Mr Grassick also said that during the investigations, police officers informed witnesses, who were not identified, that the prosecution would protect their identities and "make non‑publication orders". I assume he meant to say that the police would ask the Court to make a non-publication order. He does not say, and I do not know, whether such a statement was in fact made to the two individuals whose names are the subject of this application. 6. Finally, Mr Grassick expressed concern that the publication of the names of the two individuals could put their mental health and safety at risk. In so saying, he does not rely on any information about these two individuals, but, rather, expresses the concern based on observations about the behaviour of other people. 7. The evidence relied upon did not contain any material at all which indicated any of the following matters with respect to the two individuals whose names are sought to be the subject of the non-publication orders: 1. the ages of the individuals, the state of their mental or physical health, or their attitude to their names being published; 2. what involvement, if any, they had with the conduct of Mr Spillane, what their connection to the School was at the relevant times, nor whether they were students, staff members, visitors to the School or volunteers at the School; 3. the content of what they told the police investigators, including whether they were the victims of, or witnesses to, any inappropriate sexual conduct of Mr Spillane or any other staff member at the School; 4. the content of what they may have been told by the police as to what protection of their identities could be effected by the police, and what the police could not do to help them; or 5. their knowledge of, and support if any, for the orders being sought in this Notice of Motion. Relevant Legal Principles 1. Although the orders sought were not the subject of contrary submissions by either of the parties, this Court must still consider whether such orders are appropriate to be made under the Act, with particular importance being given to the public interest in open justice: D1 v P1 (No 2) [2012] NSWCA 440 at [6]. 2. The power of the Court to make the orders sought is contained in s 7 of the Act: "7 Power to make orders A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of— (a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or (b) information that comprises evidence, or information about evidence, given in proceedings before the court." 1. The grounds upon which such an order can be made are contained in s 8(1) of the Act: "8 Grounds for making an order (1) A court may make a suppression order or non-publication order on one or more of the following grounds— (a) the order is necessary to prevent prejudice to the proper administration of justice, (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security, (c) the order is necessary to protect the safety of any person, (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900), (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice." 1. Each of the two grounds which were the subject of oral submissions by the Commissioner require me to be satisfied that an order is "necessary" for the purpose there identified. The Commissioner needs to persuade me that the order is necessary to achieve one of the objectives contained in s 8(1): Nationwide News Pty Ltd v Qaumi [2016] NSWCCA 97 at [20]. 2. The use of the word "necessary" is a high bar - it is the intention of the legislation that the orders sought should only be made in exceptional circumstances, and not merely because it is convenient, reasonable or sensible to make the orders in the circumstances: Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 at [27], [31]; Hogan v Australian Crime Commission [2010] HCA 2; (2010) 240 CLR 651 at [30]. 3. The principle of open justice is deeply embedded in the administration of justice by Australian courts. And so, before ordering that certain information is to be prohibited from being disclosed, I must be persuaded that non‑publication is necessary to safeguard the administration of justice. As McHugh JA said, in discussing the common law position in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) NSWLR 465 at 476-477: 4. "The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule…Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient." 5. This tradition of open justice is reflected in the Act itself. Section 6 provides that "a primary objective of the administration of justice is to safeguard the public interest in open justice", and requires a court to take this into account when considering whether to make an order under the Act. This is a clear reflection of the legislative intention for orders under the Act to only be made in exceptional circumstances: Rinehart at [27]. 6. The primary ground pressed by the Commissioner in oral submissions was s 8(1)(c), concerning the protection of a person's safety. The Court of Appeal has held that the word 'safety' in s 8(1)(c) of the Act includes psychological safety: DRJ v Commissioner of Victim's Rights [2020] NSWCA 136 at [29]. 7. A court looking to make a determination under s 8(1)(c) should use a "calculus of risk" approach: AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46; (2019) 97 NSWLR 1046 at [56]–[58]. This approach requires the Court to consider the nature, imminence and degree of likelihood of harm occurring to the relevant person. Even if the risk does not rise beyond a mere possibility, a court may still be satisfied that the order is necessary if the prospective harm is very severe. Discernment 1. I am not satisfied that the Commissioner has made out any of the grounds which were the subject of submissions under s 8(1) of the Act for an order to prevent the publication of the identities of the nominated witnesses to the parties. 2. It is appropriate to consider each ground relied upon by the Commissioner. I was not provided any submissions concerning ss 8(1)(a) or (e). Without more, I fail to be convinced that publication of identifying information concerning these two individuals to the parties is necessary to prevent prejudice to the proper administration of justice, or that it is otherwise necessary in the public interest. On the contrary, in the absence of any application that the subpoena should be set aside on the grounds that it lacks a legitimate forensic purpose, I can only conclude that the documents are relevant to the present proceedings. Accordingly, it is in the interests of justice, rather than prejudicial to the interests of justice, that the documents are produced in their original form. 3. The Commissioner made submissions that I should take a broad interpretation of s 8(1)(d) of the Act: namely, that the words "witness in criminal proceedings" includes individuals who provided statements to police and who were not called as witnesses in the criminal trial. There was no authority provided to support this interpretation. I am not persuaded that merely providing a police statement in a matter makes an individual a "witness in a criminal proceedings". In any event, the evidence on the Motion does not establish that the two individuals ever gave statements to the police investigators. 4. I am similarly unconvinced that either individual is a party to a criminal proceeding such that s 8(1)(d) would apply. Section 3 of the Act defines a "party" to a proceedings broadly, namely that it includes "any person named in evidence given in proceedings". I have not been provided any evidence or documentation that would allow me to conclude that either of these individuals were named during evidence in the criminal proceedings. I am therefore not persuaded that s 8(1)(d) is a ground upon which this application could reasonably be based. 5. The primary ground upon which the Commissioner relied in oral submissions was s 8(1)(c). The submission of the Commissioner is that the orders are necessary to protect the psychological safety of the two individuals. No psychologist or psychiatrist reports were tendered in evidence to support this contention. Rather, the submission was based on global observations by the Mr Grassick of possible psychological harm which some, but not all, complainants and some, but not all, witnesses can develop, by being involved with police investigations and subsequent court proceedings. 6. I am confronted with a situation here where there is no evidence that either of these individuals were anything other than witnesses in a broad sense. I have no specific information as to what was contained in any information provided to police investigators by these individuals. They may have merely been passing acquaintances of a complainant, or may have seen something traumatic of relevance. Put differently, the spectrum of reasons why these two individuals were spoken to by police investigators is too broad on the evidence before me to make a definitive finding, or draw any inference, that trauma could or may arise for them if the orders are not made. 7. Further, it is of note that all of the criminal proceedings concerning the alleged perpetrator in this matter have been finalised. Although there was little evidence before me that could assist me in this regard, counsel for the Commissioner informed me to the best of her knowledge that at least some of the information sought by the Commissioner to be suppressed in these proceedings was subject of publication in a criminal trial by way of service of evidence. There is some inconsistency between this information and what Mr Grassick said in his affidavit. Accepting counsel's statement would not prevent me making a non‑publication order, but I have no evidence as to why publication of the names of the individuals in this matter would cause psychological harm in a way that this previous publication in the criminal trial seemingly did not. 8. Without expert evidence as to potential psychological harm, or any specific detail as to what is within the documents to be produced on subpoena and why any potential psychological trauma may arise out of identification, I am unable to find that the making of non‑publication orders is "necessary". 9. I note that part of the evidence before me is that the police made assurances to some of those who provided assistance to their investigation that their identities would be protected. If such assurances were given in absolute terms, that would be most regrettable because it is beyond the capacity of the police to give any blanket assurances. Any assurance in and of itself is not a sufficient basis for me to make a non-publication order on any of the grounds specified in the legislation. 10. It is not the role of investigating police to make promises to any person where the necessary orders are a matter for a court. It is inappropriate to assure a person that their identity is guaranteed to remain suppressed in all circumstances. Simply put, an assurance that an individual's identity will remain within police records is not an assurance the police have the power to make. The law places a high bar on non-publication and suppression, one which in many circumstances will not be reached. The outcome of making such assurances without a guarantee that they can be upheld denies a person the chance to make a fully informed decision about whether to speak to police in an investigation. 11. As I am not persuaded of any of the grounds available in the Act, it follows that I must dismiss the Notice of Motion filed by the Commissioner. Orders 1. I make the following order: 1. Notice of Motion filed on 11 June 2020 by the Commissioner of Police is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2020