R v Simmons (No 5) (Non-Publication Orders) [2015] NSWSC 333
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Supreme Court
New South Wales
Medium Neutral Citation: R v Simmons (No 5) (Non-Publication Orders) [2015] NSWSC 333
Hearing dates: 20,24, 28 March 2015
Date of orders: 02 April 2015
Decision date: 02 April 2015
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision: See orders.
Catchwords: CRIMINAL LAW – suppression orders – closure of court – protecting identity of undercover police officers – confidential evidence – assumed identities – orders made
CRIMINAL LAW – non-publication orders – investigative technique – whether orders necessary to [REDACTED] – preventing prejudice to proper administration of administration of justice – protection of safety of undercover police officers – investigative technique widely publicised – Wikipedia – where previous publications less detailed – open justice – transparency – distinction between publication on mass media and legal web-sites – changes in technology – unlikelihood that judgments would "go viral" – JIRS restricted judgments – orders necessary – exceptions to allow publication on legal web-sites – redaction of judgments – whether ratio comprehensible if redactions made – non-publication orders made subject to exceptions pursuant to s 9(4) Court Suppression and Non-Publication Orders Act
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW)
Law Enforcement & National Security (Assumed Identities) Act 2010 (NSW)
Cases Cited: Commissioner of Police v Nationwide News [2007] NSWCA 366; 70 NSWLR 643
D1 v P1 (No 2) [2012] NSWCA 440
Donai v R [2011] NSWCCA 9
Fairfax Digital v Ibrahim [2012] NSWCCA 125
Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1
R v Abrahams [2013] NSWSC 952
R v Cowan [2013] QSC 337
R v Simmons; R v Moore (No 2) [2015] NSWSC 143
R v Simmons; R v Moore (No 3) [2015] NSWSC 189
R v Simmons; R v Moore (No 4) [2015] NSWSC 259
R v Simmons; R v Moore [2015] NSWSC 73
Tofilau v The Queen [2007] HCA 39; 231 CLR 396
Texts Cited: L Struesser, "Mr Big comes to Australia", Bond University Publications, [2008] The National Legal Eagle 14(1)
JJ Spigelman, "Seen to be Done: The Principle of Open Justice – Part 1", 74 ALJ 290
International Covenant on Civil and Political Rights
Category: Principal judgment
Parties: Tony James Simmons (Accused)
NSW Commissioner of Police (Applicant)
Representation: Counsel:
R Bhalla (NSW Commissioner of Police)
P Barrett (Crown)
P Young SC (Accused)
Solicitors:
NSW Crown Solicitor (NSW Commissioner of Police)
DPP (Crown)
Matthew Lorkin (Accused)
File Number(s): 2013/15065
Judgment
1. According to Wikipedia, "Mr Big" is a police procedure and investigative technique first developed by the Royal Canadian Mounted Police in British Columbia in the early 1990's for the purpose of investigating cold case homicides: http://en.wikipedia.org/wiki/Mr._Big_%28police_procedure%29. It is also referred to as "the Canadian technique" and the "scenario technique".
2. Various police forces around Australia have used the technique: L Struesser, "Mr Big comes to Australia", Bond University Publications, [2008] The National Legal Eagle 14(1).
3. The technique was used in June 2002 by Victoria Police to entrap a man (Shane Hill) into a confession to murder. Victorian Police also used it in 3 other cases in the early 2000's. Those four Victorian cases were subject to an appeal to the High Court: Tofilau v The Queen [2007] HCA 39; 231 CLR 396.
4. There are other examples of the use of the technique. For example the technique was deployed successfully in a case called R v Cowan [2013] QSC 337. That case, involving the abduction and murder of a little boy, attracted extensive publicity in the print and electronic media.
5. In New South Wales a variation of the technique was successfully used in Donai v R [2011] NSWCCA 9 and R v Abrahams [2013] NSWSC 952.
6. The technique was also employed between September 2012 and January 2013 in the investigation into the disappearance of Andrew Russell. Mr Russell was a resident of Bathurst who was, on the prosecution case, last seen alive on 2 June 2009. The case was initially treated as a missing persons investigation. By 2012 it was treated as a cold case homicide. Investigators targeted the accused man (Tony Simmons) by employing the "Canadian" or "Mr Big" style of covert investigation. Admissions were made in the course of that investigation and I have made a ruling in the trial that those admissions are admissible against Mr Simmons: R v Simmons; R v Moore (No 2) [2015] NSWSC 143. Mr Simmons is now on trial for the murder of Mr Russell.
7. The NSW Commissioner of Police ("the Commissioner") seeks non-publication orders in relation to the investigative technique used in this case as well as suppression, non-publication and pseudonym orders to protect the identities of the undercover officers who carried out the covert investigation. The orders are sought pursuant to the Law Enforcement & National Security (Assumed Identities) Act 2010 (NSW) ("LENS Act") and the Court Suppression and Non-Publication Orders Act 2010 (NSW) ("Suppression Act").
8. The application was brought by notice of motion dated 16 February 2015 which was the first day of the trial of Mr Simmons and his (then) co-accused Mr Moore. There were a series of pre-trial applications and the trial itself (which is being conducted by judge alone) commenced on 25 March 2015 and is continuing.
9. Neither the Crown nor the defence in the trial have taken any position in relation to the application by the Commissioner of Police although Mr Young of Senior Counsel did share some helpful observations and insights into its merit. No media organisation or other interested party has played a role and so the application has to be considered in the absence of a "contradictor".
10. On 16 February 2015 the Commissioner, ably represented by Mr Bhalla instructed by the NSW Crown Solicitor, read an open affidavit, a confidential affidavit and number of confidential exhibits. Written submissions were made in support of the 24 specific orders sought by the notice of motion. On 16 February 2015, I granted leave to file the notice of motion in Court and ordered that the motion be returnable immediately. I made orders that 11 witnesses nominated in the notice of motion be referred to by their assumed names in the course of the hearing of the notice of motion. Having considered the evidence and submissions, I made the following orders:
"1. The 11 witnesses referred to in orders 3 to 13 be allowed to appear before the Court at the hearing of these proceedings under their respective assumed names. For clarity, those witnesses are referred to in their statements as [REDACTED].
2. The witnesses be otherwise referred to by their assumed names during the course of the hearing, during the course of any other or further interlocutory proceedings conducted in connection with these proceedings and for all purposes in these proceedings.
3. There be no publication or other disclosure of the real identity of the witnesses or of any document, evidence or other disclosure that identifies or might facilitate the identification of the real identities of the witnesses except as is necessary for the proper conduct of the proceedings.
4. There be no publication or other disclosure of the assumed identities or assumed names of the witnesses or of any document or evidence that identifies or might facilitate the identification of the assumed names of the witnesses except as is necessary for the proper conduct of the proceedings.
5. Without limiting the generality of orders 3 and 4, there be no publication or other disclosure of any visual or other description or depiction of the physical appearances or any other identifying features of the witnesses except as is necessary for the proper conduct of the proceedings.
6. That the Court be closed for the duration of the evidence given by the witnesses, subject to the following being permitted to be present in court while they give their evidence:
(a) the accused and their legal representatives;
(b) the legal representatives of the prosecution;
(c) officers of the New South Wales Police Force involved in investigating the offences before the Court and officers of the New South Wales Police Force attached to the New South Wales Police Force Undercover Program so long as they are not themselves required to give evidence after any of the witnesses;
(d) legal representatives for the Commissioner of Police;
(e) staff of the Department of Corrective Services;
(f) court staff; and
(g) any person sworn or affirmed as a member of a jury in the trial.
7. Orders 3 through to 5 are to apply throughout the Commonwealth of Australia pursuant to s 11 of the Court Suppression and Non-publication Orders Act.
8. Those orders are to apply until any further order of the Court pursuant to s 12 of the Court Suppression and Non-publication Orders Act.
9. There be no publication of any evidence or submissions given or made in the course of the pre-trial voir dire, such order to remain in effect until any further order of the Court and to apply throughout the Commonwealth."
1. See R v Simmons; R v Moore [2015] NSWSC 73 at [6].
2. The purpose of those orders, made pursuant to the LENS Act and the Court Suppression Act, was to protect the identity and safety of the witnesses. My reasons are disclosed in the brief ex tempore judgment published on 16 February 2015.
3. At that stage, I did not resolve the question of the Commissioner's application for non-publication orders in relation to the methodology and details of the investigation. Rather, as a practical solution, I ordered that there be no publication of any of the evidence led or submissions made on the voir dire until the end of the trial or until further order. It was anticipated that the trial would be by jury and the purpose of the order was to protect the integrity of that process although it also had the effect of protecting the interests of the Commissioner.
4. I have since handed down three judgments in the trial: R v Simmons; R v Moore (No 2) [2015] NSWSC 143, R v Simmons; R v Moore (No 3) [2015] NSWSC 189; R v Simmons; R v Moore (No 4) [2015] NSWSC 259. To protect the Commissioner's position, I ordered that there be no publication of those judgments until the end of the trial or until further order. Once an order was made for a trial by judge alone in R v Simmons (No 4), the parties in the trial proceedings agreed that there was no need for the non-publication orders over the judgments and evidence adduced on the voir dire to continue. Accordingly, the Commissioner's legal representatives were notified and invited to make submissions in relation to the matter.
5. Further submissions and evidence were received on Friday 20 March and Tuesday 24 March 2015. A further confidential affidavit was read. The Commissioner indicated that there was no application for any restriction on the publication of the judgment known as R v Simmons (No 3). I received a copy of the judgments know as R v Simmons (No 2) and R v Simmons (No 4) with certain passages highlighted in yellow. These indicated the passages that the Commissioner sought to be redacted if the judgment was to be published on legal web-sites or otherwise. The Commissioner pressed for an order that there be no publication in relation to undercover police operation and sought the opportunity to provide further evidence. I indicated that I would redact or modify the judgments so that the assumed names of the undercover police officers were anonymised and make redactions in relation to some quite specific details of the investigation that were referred to in the judgment.
6. On 24 March 2015 I made interim orders pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) in the following terms (T 504):
"1. In relation to the application by the Commissioner for non‑publication orders and suppression orders that are relevant pursuant to both the Law Enforcement and National Security (Assumed Identities) Act 2010, and the Court Suppression and Non‑Publication Orders Act 2010, I confirm the orders made on 16 February 2015.
2. Pursuant to section 10 of the Court Suppression and Non‑Publication Orders Act, I make an interim order that there be no publication of:
(a) Details of the police operation that resulted in the defendant's confession including by reference to other cases where the technique has been used; or
(b) Submissions made in relation to the Commissioner's application.
I note that order (a) does not prohibit publication of the confession itself.
3. I order that the preceding order is to apply throughout the Commonwealth of Australia pursuant to section 11 of the Court Suppression and Non‑Publication Orders Act. That order will remain in effect until the Commissioner's application is determined. I note for the purpose of section 10(2) that the hearing of the application will resume this Friday 27 March 2015.
4. In relation to the non‑publication order made in respect of the judgment known as R v Simmons (No 2) [2015] NSWSC 143, R v Simmons (No 4) [2015] NSWSC 259, those non‑publication orders will continue until further order and will be further addressed on Friday.
5. In respect of the non‑publication order made in relation to the judgment known as R v Simmons (No 3) [2015] NSWSC 189, the non‑publication order is hereby revoked."
1. The non-publications orders with respect to the judgments have been varied on four occasions, once on the application of the Director of Public Prosecutions, twice on the application of barristers in chambers at the Public Defenders' Office and once on the application of the Crown Solicitor's Office. Those variations were made to enable the parties in four different cases to have access to the judgment for use in the proceedings.
2. On Friday 27 March 2015 the Commissioner read a further confidential affidavit. Exhibited to that affidavit were three confidential exhibits. This included copies of the judgments in Simmons (No 2) and Simmons (No 4) highlighted in yellow. The highlighted indicated those portions of the judgment that the Commissioner sought to be redacted from any version published on legal websites such as Caselaw NSW, Judicial Information Research System (JIRS), Jade Barnet, Butterworths unreported cases and the like. This was in the same form as the highlighted judgments with which I had previously been provided.
3. In the course of the argument I raised the possible use of the restricted judgment section of JIRS. After taking instructions, Mr Bhalla indicated that there would be no submission against an exception for publication in that place. However, the Commissioner maintained his opposition to the judgment being published on legal web-sites other than in the redacted form.
4. It is unnecessary, and perhaps undesirable, to set out in detail the material contained in the confidential affidavits. In short, the Commissioner's position is that the technique is a matter that should remain confidential in the public interests. To allow publication of the nature and specific application of the technique would be to disclose operational secrets and methodology of the New South Wales Police Force.
5. At first blush, this is a surprising submission in view of the extensive publicity surrounding some of the cases in which the technique has been employed over the last 10 to 15 years. Indeed in Tofilau v The Queen, Gleeson CJ said at [5]:
"5. Secondly the use by the police of deception in the hope of eliciting admissions is not new. The particular technique of deception adopted in the present cases seems to have been imported into Australia from Canada. Since these trials, it has been reported in the media, presumably, unless Australians suspected of serious crimes are unaware of what is contained in the newspapers, it has a limited life expectancy."
1. In view of the successful use of the technique in a number of cases that are reported on court and legal websites around Australia, it seems that the Chief Justice's observations were devoid of his Honour's usual prescience. Given the number of cases where the technique has been successfully deployed, it appears that the readership of the Commonwealth Law Reports does not extend to a number of people suspected of having been involved in cold case homicides.
2. The starting point in considering an application seeking orders such as the closure of the Court to the public and suppression or non-publication of evidence, arguments and judgments, is the requirement for the courts to be open and accessible to the public and to the media: see JJ Spigelman, "Seen to be Done: The Principle of Open Justice – Part 1", 74 ALJ 290 at 292-295. The principle of open justice is recognised under the International Covenant on Civil and Political Rights. Article 14 relevantly provides:
"1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."
1. It also finds expression in s 6 of the Court Suppression Act:
"6 Safeguarding public interest in open justice
In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice."
1. In Commissioner of Police v Nationwide News [2007] NSWCA 366; 70 NSWLR 643 Basten JA explained:
"86 The underlying principle is one of transparency in the judicial process. That principle itself has a number of facets. As between the parties to litigation, it requires that cases be determined on the basis of evidence adduced in court and argument presented in court, so that each party will know what the other has presented and each will know the totality of the material presented to the judge. Although the decision-making process takes place in private, the results are intended to be transparent through the provision of reasons.
87 The principle of transparency in the administration of justice also operates at the public level. Generally speaking, cases are to be run in open court, allowing the attendance of members of the public who wish to watch and hear the proceedings and with an expectation that the media may publish reports of the proceedings: see, eg, John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324; (2004) 61 NSWLR 344 at [18] (Spigelman CJ).
1. However, his Honour went on to point out:
"89 Like all broad principles based on public policy, the principle of transparency has its limits. Critically for present purposes, it should not be allowed to operate in a manner which is self-defeating. Thus, it should not operate where the likely consequences are to diminish rather than enhance the operation of the judicial process and public confidence therein. The point at which that limit is reached in a particular case is beyond precise definition and is a matter of evaluative judgment."
1. In recognition of the importance of open justice, the common law developed a strict test for when a party applied for closure of a court or for suppression or non-publication of evidence. That was a test of "necessity". In Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 Hunt J said:
"As in relation to the decision to close the ordinary courts of justice, however, the question should turn upon the issue of whether an order in necessary in order to secure justice, not upon whether it is simply more convenient that it be made. The onus should remain upon the party who seeks to prohibit publication. And the circumstances in which an order will be justified should still be wholly exceptional or special circumstances"
1. The test of necessity is also at the centre of each of the grounds upon which the powers under the Court Suppression Act may be exercised. Section 8 provides:
"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 an act of indecency),
(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.
(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.
1. In the present case, the Commissioner relies on paragraphs (a), (c) and (e). The ground upon which I made the orders at the outset of the trial was that the order was necessary to protect the safety of the undercover officers. The orders were also based on the provisions of the LENS Act.
2. The Court Suppression Act distinguishes between "suppression" orders and "non-publication" orders. Those terms are defined in s 3:
"non-publication order" means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).
"suppression order" means an order that prohibits or restricts the disclosure of information (by publication or otherwise).
1. The Commissioner does not seek a suppression order in relation to the judgments known as R v Simmons (No 2) and R v Simmons (No 4) or the evidence concerning the police operation. The order sought under the notice of motion is in the following terms:
"22. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, upon the grounds referred to in s 8(1)(a), (c) and (e) of that Act, and upon the ground of public interest immunity until further order there is to be no publication of:
a. details of the police operation that resulted in the defendant's confession, including by reference to the other cases where the technique has been used; or
b. submissions made in relation to the Commissioner's application."
1. The Commissioner asks that the order apply throughout the Commonwealth of Australia and until further order of the Court: see ss 11-12 Court Suppression Act.
2. The Commissioner accepts that there might be an exception to the non-publication order to permit publication of the judgment as a restricted judgment by JIRS and more general publication of a redacted version of the judgment. The version that would be published as a JIRS restricted judgment is a slightly modified version of the judgment as originally published in that it anonymises the undercover officers and redacts the use of some code words that are central to the technique. The version that would be published on other legal web-sites is heavily redacted.
3. In Commissioner of Police v Nationwide News Basten JA explained at [85] that an application of this kind "involves the application of ill-defined and imprecise conflicting principles, on the basis of speculation as to future consequences". However, as I have said, Basten JA went on to explain that the underlying principle of transparency has its limits. Ultimately, an evaluative judgment must be made.
4. The meaning of "necessary" (as it is used in the Court Suppression Act) was considered in Fairfax Digital v Ibrahim [2012] NSWCCA 125. Bathurst CJ said at [8]:
"8. In par [46] of his judgment, Basten JA has expressed the view that the meaning of "necessary" depends on the context in which it is used. I agree that what is necessary in any given case will depend on that context. It will depend on the particular grounds in s 8 of the Suppression Orders Act relied upon and the factual circumstances said to give rise to the order. I agree that the variables that Basten JA refers to in par [46] are all relevant to what will be necessary in a particular context. Although it is not sufficient, in my opinion, that the orders are merely reasonable or sensible, I agree that the word "necessary" should not be given a narrow construction. What was said by Hodgson JA in R v Kwok [2005] NSWCCA 245; (2005) 64 NSWLR 335 at [13] adopting the remarks of Mahoney JA in John Fairfax Group Pty Ltd (Receivers & Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131 are equally applicable to the legislation in question.
'However, the requirement of necessity is not to be given an unduly narrow construction. I respectfully adopt what was said by Mahoney JA in John Fairfax Group Pty Ltd (Receivers & Managers Appointed v. Local Court (NSW) (at 161B):
This leads to the consideration of what is meant by 'necessary to secure the proper administration of justice' in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based.'"
1. Basten JA at [45] said:
"45. The word "necessary" can have shades of meaning; it is not of "a fixed character, peculiar to itself" but rather "admits of all degrees of comparison", in the language of the United States Supreme Court in McCulloch v Maryland 17 US [1819] USSC 5; (4 Wheat) 316 at 414 (1819) cited by Gummow and Crennan JJ in Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at [101]. The Court in McCulloch, in the same passage, noted at 413:
'If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another.'
46. The meaning of "necessary" depends on the context in which it is used. In s 8(1), it is used in relation to an order of the court, or, in practical terms, a proposed order, because it identifies a standard as to which the court must be satisfied before making an order. In each paragraph of that provision, the word "necessary" is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In paragraph (a), the purpose of the order will be "to prevent prejudice to the proper administration of justice". That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree: the proposed order may diminish a risk of prejudice or it may obviate the risk entirely. All of these variables may affect what is considered "necessary" in particular circumstances."
1. The material before me shows that [REDACTED]. The material gives rise to an inference that [REDACTED].
2. In assessing the question of whether orders in the nature of suppression or non-publication are necessary, one has to take into account not only the risk that an investigation will fail or be suspended if a suspect becomes aware that the people with whom he is dealing are undercover police officers. A more urgent concern is the safety of those police officers. It is not difficult to imagine a situation where a person suspected of having committed a homicide and whose desire is to become a member of a criminal organisation, might respond in an extreme and violent way to the suspicion or knowledge that the person they are dealing with is a police officer investigating them for a crime carrying life imprisonment.
3. For those reasons, I have decided to make orders under the provisions of the Court Suppression and Non-Publication Orders Act 2010 (NSW). The grounds upon which I consider the orders should be made are set out in s 8(1)(a), (c) and (e):
(a) The order is necessary to prevent prejudice to the proper administration of justice,
(c) The order is necessary to protect the safety of any person,
(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. Having reached that conclusion, it is necessary to consider the content of those orders. Since the publication of the judgments in relation to which this application is largely directed, I have received no less than 4 requests from lawyers seeking to use the judgments in other cases. The Commissioner did not object to exceptions being made in those cases and to orders excluding those lawyers and their opponents were made. There is a significant difference between making orders stopping the mass media publication of the technique and the suppression, non-publication or redaction of a judge's reasons for decision. The nature of the orders available under the Court Suppression and Non-Publication Orders Act are flexible and allow for "such exceptions and conditions as the court thinks fit and specifies in the order": s 9(4).
2. Having read the judgments in the form urged by the Commissioner, I reached the opinion that the rationale of the decisions is difficult to comprehend in the absence of the factual material upon which it is based. By way of example, if Simmons (No 4) was being used in support of a similar application, the lack of detail concerning the nature and extent of the prejudicial material involved in this case would make the reasons for decision very difficult to understand, let alone to apply. This might be contrasted with the situation in D1 v P1 (No 2) [2012] NSWCA 440 where Bathurst CJ was satisfied that the critical matters of principle remained intelligible after significant redaction (see [7]).
3. I struggled with the Commissioner's submission that restriction on publication on legal web-sites is "necessary". As has been observed directly and implicitly throughout this judgment, the nature of the technique employed in this case has been published on Australian legal web-sites and in law reports and journals on a number of occasions. It has been subject to mass media attention and has its own Wikipedia entry. The problems that arose following [REDACTED] had to do with publication in the print and electronic media. There is nothing to suggest that the problems were caused by the publication on the [REDACTED], Austlii or other legal websites. As interesting as some may consider them to be, the law reports and legal websites are not commonly read by members of the criminal milieu. This is shown by the events that have transpired following the High Court's decision in Tofilou v The Queen.
4. However, I was ultimately persuaded by a number of Mr Bhalla's submissions. I accept that the detail provided in the R v Simmons (No 2) is unusual and that the specific scenarios described in the judgment [REDACTED]. I accept that the capacity of technology today is far advanced and that the advent of smart 'phones and other devices increase the capacity of material being re-published broadly and quickly. While I do not share Mr Bhalla's concern that the judgments may "go viral", I accept the premise behind that submission. Fashioning orders to prevent "links" between web-sites and public and private users is difficult, if not impossible. He made a good point concerning "push" notifications and the possibility of publication on overseas legal blogs, Facebook and the Twitter. I accept from Mr Bhalla that two other Judges of this Court have suppressed (or restricted publication) of similar material and that the use of the technique in this state, or at least the detail of that use, has not previously been published, in such detail.
5. Finally, I accept that the limited publication as a JIRS restricted judgment means that the judgment will be available to practitioners and judicial officers for the use in legal proceedings. The redacted version published on other legal web-sites will carry a notation that the fuller version is available through JIRS.
6. To ensure that the orders for closure of the court and the suppression and non-publication orders are readily comprehensible and located in one place, I will revoke and re-state my earlier orders and make the final orders to which this judgment relates. The orders are these:
1. Revoke all previous orders for non-publication and suppression pursuant to the Law Enforcement & National Security (Assumed Identities) Act 2010 (NSW) and Court Suppression and Non-Publication Orders Act 2010 (NSW) and in their place make the following orders pursuant to those statutes.
2. The 11 witnesses known under assumed names as [REDACTED] ("the 11 witnesses") are permitted to appear before the Court at the trial and any related or interlocutory proceedings under their assumed names.
3. The 11 witnesses are to be referred to by their assumed names during the course of the trial and in any related or interlocutory proceedings.
4. There is to be no publication or other disclosure of the real identity of the 11 witnesses or of any document, evidence or other disclosure that identifies or might facilitate the identification of the real identities of the 11 witnesses except as is necessary for the proper conduct of the proceedings.
5. There is to be no publication or other disclosure of the assumed identities or assumed names of the 11 witnesses or of any document or evidence that identifies or might facilitate the identification of the assumed names of the 11 witnesses except as is necessary for the proper conduct of the proceedings.
6. Without limiting the generality of orders (4) and (5), there is to be no publication or other disclosure of any visual or other description or depiction of the physical appearances or any other identifying features of the 11 witnesses except as is necessary for the proper conduct of the proceedings.
7. The Court will be closed for the duration of the evidence given by the 11 witnesses, subject to the following people being permitted to be present in court while they give their evidence:
1. The accused and his legal representatives;
2. The legal representatives of the prosecution;
3. Officers of the New South Wales Police Force involved in investigating the offences before the Court and officers of the New South Wales Police Force attached to the New South Wales Police Force Undercover Program so long as they are not themselves required to give evidence after any of the witnesses;
4. Legal representatives for the Commissioner of Police;
5. Staff of the Department of Corrective Services;
6. Court staff.
1. There is no restriction on publication of the judgment known as R v Simmons; R v Moore (No 3) [2015] NSWSC 189.
2. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, and upon the grounds referred to in s 8(1)(a), (c) and (e) of that Act there is to be no publication of:
(a) Details of the police operation that resulted in the defendant's confession, including by reference to the other cases where the technique has been used; or
(b) Submissions made in relation to the Commissioner's application
This order does not prohibit publication of the words used by Tony Simmons that are said by the Crown to amount to a confession.
1. Pursuant to s 9(4) the following exceptions will apply to order (9):
1. The judgment known as R v Simmons; R v Moore (No 2) [2015] NSWSC 143 may be published as a restricted judgment by Judicial Information Research System (JIRS) in the form set out in annexure 'A" to this judgment and may be accessed for use in legal proceedings by members of the judiciary, their staff and legal practitioners in accordance with the protocols established by the Judicial Commission of New South Wales.
2. The judgment known as R v Simmons; R v Moore (No 4) [2015] NSWSC 259 may be published as a restricted judgment by Judicial Information Research System (JIRS) in the form set out in annexure 'B" to this judgment and may be accessed for use in legal proceedings by members of the judiciary, their staff and legal practitioners in accordance with the protocols established by the Judicial Commission of New South Wales.
3. The judgment known as R v Simmons; R v Moore (No 2) [2015] NSWSC 143 may otherwise be published in the redacted form set out in annexure "C" to this judgment.
4. The judgment known as R v Simmons; R v Moore (No 4) [2015] NSWSC 259 may otherwise be published in the redacted form set out in annexure "D" to this judgment.
5. This judgment known as R v Simmons (No 5) [2015] NSWSC 333 may otherwise be published in the redacted form set out in annexure "E" to this judgment.
1. Pursuant to s 11 of the Court Suppression and Non-publication Orders Act these orders are to apply throughout the Commonwealth of Australia.
2. Pursuant to s 12 of the Court Suppression and Non-publication Orders Act, these orders are to apply until further order of the Court.
3. The original (un-redacted) judgments known as R v Simmons; R v Moore (No 2) [2015] NSWSC 143, R v Simmons; R v Moore (No 4) [2015] NSWSC 259 and R v Simmons (No 5) [2015] NSWSC 333 are to be kept on the Court file in sealed envelopes marked "not to be opened except by order of a judge of the Supreme Court of New South Wales or higher Court".
4. Orders previously excluding particular legal practitioners to the non-publication orders and allowing them access to the judgments referred to in order (13) are confirmed and will continue to apply.
5. The Commissioner of Police or its legal representative (the NSW Crown Solicitor) is to be given notice of any application to vary or discharge these orders.
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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: 10 April 2015