Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Matthews v R (No 2) [2013] NSWCCA 194 Hearing dates: 13 June 2013 and submissions thereafter. Decision date: 23 August 2013 Before: Hoeben CJ at CL, Leeming JA and Beech-Jones J Decision: Application for non-publication order refused. Catchwords: PRACTICE AND PROCEDURE - judgments and orders - non-publication orders - open justice - whether order restricting publication on internet necessary - Court Suppression and Non-publication Orders Act 2010, ss 6, 8. Legislation Cited: Court Suppression and Non-publication Orders Act 2010 Cases Cited: - D1 v P1 [2012] NSWCA 314 - Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 263 FLR 211 - McKenzie v McKenzie [1970] 3 All ER 1034 - Rinehart v Welker [2011] NSWCA 403 Category: Consequential orders Parties: Philip Lindsay Matthews (Appellant) Crown (Respondent) Representation: Counsel: In person (Appellant), with Ms E. Rautenberg (McKenzie Friend) C.P. O'Donnell (Respondent) Solicitors: In person (Appellant), with Ms E. Rautenberg (McKenzie Friend) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2009/008878 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-01-23 00:00:00 Before: Tupman DCJ Judgment 1THE COURT: On 14 August 2013 the Court handed down judgment dismissing Mr Matthews' appeal against his conviction and granting him leave to appeal his sentence but dismissing that appeal (Matthews v R [2013] NSWCCA 187) (the "principal judgment"). 2Between the time the Court heard argument and handed down its judgment, a one page submission was lodged on behalf of the appellant requesting that the Court's reasons "not appear on Caselaw or other public databases and [that] a non-publication order" be imposed on various grounds. From the terms of the request it appears that the form of order sought was one that answered the description of a "non-publication order" in s 3 of the Court Suppression and Non-publication Orders Act 2010 (the "Act"), being one that restricted the extent of the publication rather than prohibiting it altogether. 3At 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. 4The submission lodged on behalf of the appellant was signed by both the appellant and his "McKenzie Friend", Ms Rautenberg. It identified three grounds for the order(s) sought as follows: "- Appellant wishes his fiancé/McKenzie Friends [sic] name not [to] appear within the judgement as it is not essential to the judgement and in efforts to protect her reputation within the community (Sect 8.1(c) Court Suppression and Non-Publication Orders Act 2010) - Sentencing Grounds relating to prior charges are of a sensitive nature, and will have further consequences on appellants [sic]safety, specifically in custody resulting in a more onerous time in prison. Further influence may be had on his standing within the community should be judgement be available to the public. (Sect 8.1(d) Court Suppression and Non-Publication Orders Act 2010) - Appellant and families [sic] fear of safety from co-offenders and associates, with personal details disclosed throughout proceedings including names of family members, current business names, addresses, reporting obligations etc. (Sect 8.1(c) Court Suppression and Non-Publication Orders Act 2010)" 5The scheme of the Act was described by the Court of Appeal in Rinehart v Welker [2011] NSWCA 403. It is only necessary to note that s 6 records and confirms that in deciding whether to make, inter alia, a non-publication order the Court must take into account that "a primary objective of the administration of justice is to safeguard the public interest in open justice". In Rinehart at [27] Bathurst CJ and McColl JA noted that this provision "reinforces the legislative intention that [orders under the Act] should only be made in exceptional circumstances". Sub-sections 8(1)(a) to (e) specify a number of grounds upon which such an order can be made. All of them require that the order sought be "necessary" to protect an identified interest. The exceptional nature of the power, and the high threshold imposed by "necessity", may be seen from the fact that it is not enough that it appears to the Court that the proposed order is convenient, reasonable or sensible (Rinehart at [31]; D1 v P1 [2012] NSWCA 314 at [48]). That said, "necessary" is not to be given a narrow construction (see Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 263 FLR 211 at [8] and [45] to [48]). 6It is convenient to deal with the second point in the appellant's submission at the outset. Presumably the material "relating to prior charges" which is said to jeopardise the appellant's safety in custody and damage his reputation is his history of criminal convictions, including for sexual offences, noted in the principal judgment at [155]. The fact that such material reflects poorly on the appellant and his reputation or standing is not a reason to warrant its publication being restricted. None of ss 8(1)(a) to (d) of the Act identifies such an effect as one that warrants the making of such an order. Subsection paragraph 8(1)(e) refers to the "public interest for the order to be made". When the relevant concern is only the effect on a person's reputation that is said to flow from the publication of their prior convictions, then no relevant form of public interest is adversely affected by such a publication. 7However it can be accepted that, if the details of the appellant's convictions became widely known within the prison community, then there may be a risk to his safety and it may be necessary for him to seek protection from the prison authorities. A risk to personal safety can warrant an order under the Act (s 8(1)(c)). However all of the material concerning those offences was tendered in open court during the appellant's sentencing proceedings (as well as when he was previously convicted of those other offences). It was not subject to any restriction at its time of tender. Further it was also the subject of submissions at the hearing of the appeal, which was also conducted in open court. In those circumstances no necessary basis for a restriction on its publication is demonstrated. 8The application also seeks an order restricting the publication of material concerning the involvement of Ms Rautenberg. The same observations apply in respect of her involvement. Ms Rautenberg was mentioned in open court at the appellant's trial (see the principal judgment at [112] to [113]). At the hearing of the appeal, the appellant sought and was granted leave for Ms Rautenberg to assist the appellant as his "McKenzie friend" (see McKenzie v McKenzie [1970] 3 All ER 1034). She was allowed to sit next to him and provide him with notes and assistance, although she was not allowed a speaking role. She willingly performed those tasks. They were undertaken in open court. 9The role Ms Rautenberg performed is not a role that friends, family members or any other member of the public can undertake as of right. Permission having been obtained from the Court for Ms Rautenberg to perform a role for the appellant beyond that of a Court observer, and that role having been performed in open court, there is no proper basis for restricting the publication of that involvement because of the damage to her reputation and standing that might follow from her being associated with the appellant. In this context "open justice" requires that, absent some compelling reason, the Court's judgment be publicised and properly record the nature of the assistance the appellant sought and received. Whether the publication of the fact that Ms Rautenberg gave that assistance (or is the appellant's fiancé) will affect her reputation and standing is difficult to gauge but, in these circumstances, is legally irrelevant. 10The appellant also raises various concerns he has relating to the threat "co-offenders and associates" pose to his safety and that of his family if various details are published. This contention does not warrant a non-publication order. Presumably the reference to co-offenders is to Garcia and Thurling, both of whom gave evidence against him at his trial (see the principal judgment at [10] to [18]). Given their role at the trial it would be expected that they might have safety concerns in their own right rather than be the source of safety concerns. In any event, all of the details to which this part of the application refers were extensively canvassed at the appellant's trial which was conducted in open court. If anyone associated with Garcia or Thurling wanted to acquire some relevant detail with a view to harming the appellant, they had the opportunity to do so then. There is no basis for concluding that any appreciable risk to the safety of the appellant would accrue or increase from the publication of any of the details concerning the appellant's trial that are set out in the principal judgment. 11The application is refused. ********** 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: 23 August 2013