New South Wales Court of Appeal CITATION: S v State of New South Wales (No 3) [2009] NSWCA 248 HEARING DATE(S): 5 August 2009 JUDGMENT OF: Macfarlan JA EX TEMPORE JUDGMENT DATE: 5 August 2009 DECISION: Confidentiality orders in accordance with Short Minutes of Order initialled and placed in the Court file. CATCHWORDS: PROCEDURE - non-publication orders - no question of principle LEGISLATION CITED: Supreme Court Act 1970 CATEGORY: Procedural and other rulings CASES CITED: Commissioner of Police New South Wales v Nationwide News Pty Ltd [2007] NSWCA 366; (2007) 70 NSWLR 643 John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 PARTIES: "S" (Appellant) State of New South Wales (Respondent) FILE NUMBER(S): CA 40396/08 D M Shoebridge (Appellant) COUNSEL: P Menzies QC/P D A Mallon (Respondent) P Singleton/M England (Commissioner of Police) Edwards Michael Lawyers (Appellant) SOLICITORS: Crown Solicitor's Office (Respondent) Crown Solicitor's Office (Commissioner of Police) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 20125/06 LOWER COURT JUDICIAL OFFICER: Harrison J LOWER COURT DATE OF DECISION: 9 September 2008 and 24 October 2008 LOWER COURT MEDIUM NEUTRAL CITATION: "S" v State of New South Wales [2008] NSWSC 933; "S" v State of New South Wales (No 2) NSWSC 1116 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40396/08 SC 20125/06 MACFARLAN JA WEDNESDAY 5 AUGUST 2009 "S" v STATE OF NEW SOUTH WALES (NO 3) Judgment 1 HIS HONOUR: Judgment was delivered on this appeal on 17 July 2009. During the hearing of the appeal the Commissioner of Police sought orders for non-publication of aspects of the argument, both oral and written, and foreshadowed an application for non-publication of certain parts of the judgment. Publication of the judgment delivered on 17 July 2009 was restricted until further order. On that day, directions were made as to the filing of submissions in relation to the Commissioner's application for non-publication orders. Those submissions were filed. It appears from them and from what was said in court today on behalf of the appellant and the respondent that the appellant and respondent do not wish to make any submissions in relation to the Commissioner's application, subject to one matter. That matter is that the appellant wishes her true name now to be disclosed. The Commissioner has indicated that he wishes time to further consider that issue. 2 As a result, by consent, earlier today I granted liberty to the Commissioner and to the appellant to apply in relation to any order sought to be made concerning publication of the appellant's name. Counsel who appeared for the appellant and respondent thereafter withdrew and accordingly took no part in the application that was made today by the Commissioner. 3 Detailed written submissions were supplied to me before today by the Commissioner, together with draft short minutes of order. Those short minutes of order attached a schedule which identified the various parts of the documents filed in the proceedings, the transcript of the hearing of the appeal and the judgment, in respect of which non-publication orders were sought. For the assistance of the Court, the Commissioner also supplied a folder containing those documents with the portions sought to be the subject of an order highlighted. That greatly assisted my consideration of the matter. 4 As on considering these submissions, I had a number of questions I wished to ask of the Commissioner's representatives, I had the matter listed today for oral argument, primarily for the purpose of me asking those questions. Prior to that listing, the parties were informed that it was proposed that I should hear and determine the Commissioner's application as a single judge pursuant to s 46 of the Supreme Court Act 1970. I am presently engaged in doing that. 5 Counsel for the Commissioner responded to my queries in relation to a number of the paragraphs of the judgment in respect of which orders were sought in a way which satisfied me as to the appropriateness of the orders sought. Those paragraphs were paragraphs 24, 112, 139 and 141. I am accordingly satisfied that the various orders which the Commissioner seeks are appropriate and in conformity with the principles which have been authoritatively stated in two decisions of this Court; John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 and Commissioner of Police New South Wales v Nationwide News Pty Ltd [2007] NSWCA 366; (2007) 70 NSWLR 643. Those decisions indicate that a test of necessity applies. As was said by Justice McHugh in the John Fairfax case at 476-477: "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. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. 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. When the court is an inferior court, the order must do no more that is `necessary to enable it to act effectively within' its jurisdiction." 6 I am satisfied that the material sought to be the subject of non-publication orders should be restricted from publication to ensure that the public interest is maintained. 7 There are before me affidavits of Mr Jeffrey Allen Loy of 20 May 2009, one of which is an open affidavit and two of which are confidential. Those affidavits satisfy me that disclosure of the subject material could prejudice the proper conduct of law enforcement activities in New South Wales. 8 In considering the application for non-publication I have, of course, had regard to the very strong countervailing interest which applies in favour of the publication of proceedings in the courts and, in particular, publication of the Court's reasons for judgment. In my view the making of the orders in the draft short minutes of order will sufficiently satisfy both very significant interests. 9 Accordingly, I make orders in accordance with short minutes of order which have been supplied to the Court by the Commissioner of Police and which I initial and date today. ********** 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.