New South Wales Court of Appeal CITATION: S v State of New South Wales (No 4) [2009] NSWCA 242 HEARING DATE(S): On the Papers JUDGMENT DATE: 10 August 2009 JUDGMENT OF: Macfarlan JA at 1 (1) That the true name of the appellant may be published as being the name of the appellant in these proceedings and of the plaintiff in the proceedings below. DECISION: (2) Until further order, there shall be no publication of any image of the appellant in connection with these proceedings or the proceedings below, except for the purpose of the proper conduct of these proceedings, any proceedings in the High Court of Australia arising out of these proceedings and the proceedings remitted to the Court below, provided that it shall be permissible to publish an image of the appellant that does not give a true depiction of her appearance and does not enable her to be recognised. (3) That the Commissioner of Police shall have liberty to apply to the Court on 3 working days' notice for any order that he contends should be made in consequence of the making of Order 1. CATCHWORDS: PROCEDURE - non-publication order varied - no issue of principle CATEGORY: Procedural and other rulings PARTIES: "S" (Appellant) State of New South Wales (Respondent) FILE NUMBER(S): CA 40396/08 R J Burbidge QC/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 BEAZLEY JA GILES JA MACFARLAN JA MONDAY 10 AUGUST 2009 "S" v STATE OF NEW SOUTH WALES (NO 4) Judgment 1 MACFARLAN JA: Judgment on this appeal was given on 17 July 2009. During the hearing of the appeal and when judgment was handed down, non-publication orders were made, on the application of the Commissioner for Police, to ensure that the proper operations of the New South Wales Police Service were not prejudiced by the disclosure of certain evidence given in the proceedings. On 5 August 2009, the Court made further non-publication orders, including as to portions of its judgment of 17 July 2009. So far as that judgment of 17 July is concerned, the presently operative non-publication orders are reflected by the edits made to the form of judgment which has been published on the New South Wales Supreme Court website. 2 Until now, the true name of the appellant has been the subject of a non-publication order. The Commissioner of Police, the appellant and the respondent are in agreement that that position should be varied by the making of the following orders: (1) That the true name of the appellant may be published as being the name of the appellant in these proceedings and of the plaintiff in the proceedings below. (2) Until further order, there shall be no publication of any image of the appellant in connection with these proceedings or the proceedings below, except for the purpose of the proper conduct of these proceedings, any proceedings in the High Court of Australia arising out of these proceedings and the proceedings remitted to the Court below, provided that it shall be permissible to publish an image of the appellant that does not give a true depiction of her appearance and does not enable her to be recognised. (3) That the Commissioner of Police shall have liberty to apply to the Court on 3 working days' notice for any order that he contends should be made in consequence of the making of Order 1. These three orders are now made by the Court. ********** 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.