District Court New South Wales Medium Neutral Citation: R v James Ian Longworth (No 3) [2015] NSWDC 401 Hearing dates: 7, 8 October 2015 Date of orders: 08 October 2015 Decision date: 08 October 2015 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: 1. Non-publication order prohibiting the publication of exhibit A in these proceedings and prohibiting the publication of the following items in exhibit B: behind the first tab coloured yellow, photographs 23, 24, 25, 26, 27 and 28; and behind the second tab coloured orange, photographs 21, 22, 23, 24, 25, and 26. 2. The non-publication order applies anywhere in the Commonwealth of Australia and operates until two hours has elapsed from the delivery of verdicts in this trial. 3. Order that any media organisations be granted access to the balance of exhibit B to exhibits C, D, E, F, 1 and 2. 4. In the event the non-publication order lapses because two hours has expired since the delivery of verdicts without any further order, access is granted to any media organisation to exhibit A and to those items in exhibit B which are the subject of the non-publication order. Catchwords: CRIMINAL LAW – application by news media organisations to access trial exhibits – CCTV footage of alleged offence – one punch offence – public interest in open justice – whether order necessary to prevent prejudice to the proper administration of justice – whether order necessary to protect the safety of any person – non-publication order WORDS AND PHRASES – "necessary" Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 8, 11 Cases Cited: Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52 Hogan v Hinch (2011) 85 ALJR 398 Category: Procedural and other rulings Parties: Regina (Crown) James Ian Longworth (Accused) Representation: Counsel: J Pickering SC (Crown) H Dhanji SC (Accused) T Maltz (Media organisations) D Jordan SC (Debra Longworth) Solicitors: Officer of the Director of Public Prosecutions (NSW) (Crown) Nyman Gibson Miralis (Accused) File Number(s): 2013/271287 Publication restriction: See decision. Judgment 1. I am presiding over a criminal trial. It is a jury trial. The accused faces two alternative charges. The charges arise from him punching a security guard at a bar in the city about two years ago. The security guard was knocked over by the punch and suffered a serious brain injury. The man has been charged primarily with the very serious offence of causing grievous bodily harm to the victim of the punch "with intent to cause him grievous bodily harm." 2. When the Deputy Director of Public Prosecutions, Mr J Pickering SC who appears as Crown Prosecutor, opened the case he told the jury about some CCTV footage. It is not at all unusual these days that CCTV footage can turn up in evidence depicting the very crime which is said to have been committed. In this case there is such footage from the bar. It became exhibit A in these proceedings and has been shown to the jury. 3. I understand that the press has taken a keen interest in these proceedings. I understand that because I have received a number of applications for access to the CCTV footage from news media organisations, as they are referred to in the legislation. The interest is no doubt partly due to the fact that the alleged crime is an example of a one punch offence that has resulted in a very serious injury to its victim. Just whether the accused man intended to cause or recklessly caused that result is the question for the jury. One punch crimes have been the subject of appropriate and wide media attention in recent times and also of legislation. 4. When Mr Pickering SC opened the case he said this about the CCTV footage: "There could have actually been some other really serious injury that he intended to cause but he had to have intended to do that and it will be the Crown case that when you see this video that you will be satisfied beyond reasonable doubt that the only intent that he could have was to cause really serious bodily harm, really serious injury." In other words, at least one plank of the prosecution case against the accused man is that the CCTV footage itself will prove the intent that will be necessary for the Crown to satisfy the jury of beyond reasonable doubt. It goes without saying that the footage is therefore an essential piece of evidence. 1. I have viewed the footage. It is fair to describe it as graphic and violent. It is a clear, visual and moving illustration of a one punch crime. I am not saying that it amounts to either of the crimes that the man has been charged with. That is a question for the jury. But it is a one punch incident and Mr Dhanji SC, who appears for the accused, acknowledges that his client will plead guilty to some lesser offence regarding the incident. 2. The media organisations who are interested are Channel 7, Channel 9 and Nationwide News. They are represented by Mr T Maltz of counsel who appeared before me this afternoon. 3. I should add at this point that the time is now approaching 6.30pm. I have given priority to the continuation of the trial over the last day or two in the knowledge that the media wanted access to the footage. They have had to wait. It was convenient to list this separate application this afternoon and we commenced a little before 4 o'clock. The parties to the application are the news media organisations I have referred to, the accused, who is represented by Mr Dhanji SC on this application as well, and the accused's mother, who is represented by Mr D Jordan SC. 4. There are two collateral issues. One is the nature of the applications. It was not clear whether previous orders remained in force or not, but yesterday I made some interim orders. On one view, the news media organisations are applying to remove my interim order. On another view, Mr Dhanji and Mr Jordan's clients are urging me to make an order. I do not want to spend time at this stage of the evening working that out. I do not think I need to. Secondly, I do not need to deal with the onus of proof. 5. I should add that I have been significantly assisted by all counsel this afternoon in the submissions which they have made. These reasons will be relatively brief because of the hour of day. 6. Mr Maltz commenced by reminding me of two important concepts. One is open justice and the other is necessity. He referred to open justice because s 6 of the relevant legislation - which is the Court Suppression and Non-Publication Orders Act 2010 - provides that when I am deciding whether to make a non-publication order I "must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice". He emphasised necessity as the other concept because s 8 of the same Act provides that I "may make a non-publication order on one or more of the following grounds"; then each of the five specified grounds includes the adjective "necessary". 7. The two relevant s 8 grounds in this case are in cl (a) - "the order is necessary to prevent prejudice to the proper administration of justice" and in cl (c) - "the order is necessary to protect the safety of any person". 8. The meaning of "necessary" in s 8 was canvassed in the Court of Appeal in Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52. I have been directed by Mr Dhanji to passages [8] – [9] of the Chief Justice's judgment and [45] and following of the judgment of Basten JA. I will not set out those passages but I have read them during the course of the day because Mr Dhanji made his written submissions available before today. 9. Mr Dhanji says that the order is necessary on behalf of his client in order to prevent prejudice to the proper administration of justice. Broadly speaking, one prejudice would be that the jury would be exposed to public and private comment on the CCTV were it to be released at this stage. The second prejudice is that his client's mother may be prevented for related health reasons from being able to give evidence. He wants to call her. 10. Mr Jordan's case is that the order is necessary to protect the safety of his client, the accused's mother. He focuses on her psychological health as well as her physical wellbeing. He relies on affidavit evidence from her of telephone threats as a result of publicity surrounding the arrest and charging of her son. The evidence suggests that the threats increase when the exposure of the issue in the press increases. 11. Mr Maltz's case is that the orders are not necessary to protect either of these interests. For reasons that will become apparent I am going to deal at this stage with Mr Dhanji's issue about the prejudice to the proper administration of justice. 12. Mr Dhanji points to the evidence of a psychologist whom his client's mother saw. He said the very prospect this footage may be released provoked in her a reaction such that she attended him yesterday "in a regressed state, trembling, emotional and tearful having attended the second day of her son's Court hearing." On his examination - he is a clinical psychologist named Sam Borenstein - he found her "mood was severely depressed and she is extremely anxious." He said - "The prospect of CCTV footage of the incident involving her son becoming available to the media has added significantly to [her] psychological burden. In my opinion she is at risk of regressing into a Major Depressive Episode, which could require urgent psychiatric intervention, e.g. medication and possibly hospitalisation." Mr Dhanji's important but simple point is that his client's mother is to be a significant witness in his case. Were the publication of this material to render her incapacitated to give evidence then that would be a serious prejudice to his client and his client's case and would therefore cause "prejudice to the proper administration of justice." 1. Mr Maltz pointed to the basis of the accused's mother's fear being speculation about the intent or intentions of those who made threatening telephone calls to her about her son. The fact of the telephone calls is not in dispute, but Mr Maltz argues the likelihood that real harm may result is no more than speculation. 2. Moving to Mr Dhanji's point about the impact on the jury, he supplemented his initial submissions by adopting an observation made by Mr Jordan. Mr Jordan - who has just come into the matter on this specific issue - told me he viewed the video for the first time last night. He described it as a remarkable and sensational video which, he submitted, would attract huge attention and be highly emotive. Mr Jordan contrasted the CCTV footage with other evidence produced by Mr Maltz on behalf of his clients showing that there is plenty of material on the internet identifying the accused. Mr Jordan says that there is nothing remotely close to the CCTV footage in that internet content. It is, he described it, unique. He submitted that a likely result is that it will further inflame those who were upset in the past by the report of the incident. 3. Returning to Mr Dhanji, he picked up these observations of Mr Jordan and said that they brought a fresh perspective. He and I and the Crown Prosecutor have been involved in the trial for a few days and have viewed and talked about the video. Mr Dhanji adopted Mr Jordan's observations that the video was short and repeatable and it is difficult to assess the level of attention it would receive. Indeed if it could be far greater attention than any other material in the case. 4. Mr Dhanji's point is that this case is unique. He returned to the Crown Prosecutor's opening, pointing out the significance placed on the CCTV footage in proving his case. There is a sense in which, he argued, it is available to the Crown to suggest that the CCTV footage can be used to decide the whole case. He submitted that it will significantly increase the public discourse and argument on the nature of this kind of crime, on this very incident and especially on the alleged intent that is said by the prosecution to accompany the punch so graphically displayed on the footage. People from within jurors' circle of friends and family will offer their views. There will be some discussion about it in the public arena. He says that the jury are already under enough pressure. That pressure would increase significantly if the media exposed the footage. 5. There is another point which Mr Dhanji developed. Exposure of the CCTV footage, as I have said and I accept, will likely result in widespread public discussion and argument about this kind of crime, this incident and the intent said to accompany this incident. Those who know individual jurors, be they friends or family, may well know that the footage is said to illustrate itself the crime which the prosecution said was committed. As I observed, it may well be that jurors cannot avoid exposure to the footage being shown on the news and the discussion about it. The discussion may well involve those close to them offering their views about what the footage shows. Amongst those who offer views could well be people whose opinions individual jurors value highly. We cannot possibly know whether that will occur or not. Given that there are twelve jurors, and that I accept the prospect of widespread discussion, there is a very good chance at least some jurors will be exposed to the expression of those views and some of those views will come from respected sources. 6. So not only will there be views and opinions other than those expressed in court being fed to jurors on a central piece of evidence said to incriminate the accused, but individual jurors might be apprehensive about the eventual publication of an acquittal, if indeed that is the decision which at the end of the day they reach. I have been emphasising to the jury the importance of deciding this case on what they see and hear within these four walls. I emphasised the evidence and only the evidence, the arguments from counsel and the directions from me, and that they are to ignore anything else. I have told them, as I usually do tell juries, that they are to tell their friends and families that they cannot discuss the case. This will be even harder if the CCTV footage is in the public domain. But, I repeat, there will be an added burden on any of those jurors who have received unsolicited opinions from respected sources. If they think that an acquittal is the appropriate verdict, then they will be quite apprehensive about facing those people again and that could influence their own contribution to the jury deliberations and even the verdict, in a prejudicial way. 7. Mr Maltz correctly emphasised the importance of the principle of open justice. On the other hand, Mr Dhanji reminded me of what French CJ said in Hogan v Hinch (2011) 85 ALJR 398 at 406 [20] - "An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts." I have omitted references to authority. It is important to observe his Honour's comment that it is a means to an end and not an end in itself. The legislation that I am dealing with, whilst elevating that principle, also qualifies it by the exceptions, an approach of which Mr Maltz reminded me. That is that the action I am being asked to take is an exception to the accepted principle. For the necessity test Mr Maltz argued, it is "not enough for it to be convenient, reasonable, sensible, serve some purpose, serve some purpose in the context of a balancing exercise. It actually has to be necessary…." It is, he said and I accept, not a "soft test". 1. Nevertheless, I am satisfied it is necessary to prevent prejudice to the proper administration of justice for me to make a non-publication order prohibiting the publication of exhibit A, until further order, for the following reasons. 2. I am of the opinion Mr Dhanji has made out his case. That is, the health of his client's mother and the unchallenged possibility that she may be rendered incapacitated as a result of the stress imposed by the prospect of publication, would interfere with his client's case because he would not be able to call her to give evidence. That in turn would be prejudicial to the proper administration of justice in this case. 3. The second reason is the likelihood, in my opinion, of the jury being exposed to public and private argument and discussion on a central issue in the trial. I regard that, for reasons that I have explained, as highly undesirable. There would be too many possible sources of influence on the jurors in this case on such a central issue. The sources would be both public and private. The fact that there are 12 individuals means that the potential exposure is even higher. 4. In order for me to be sure that the potential of that public or private influence is not very significantly increased, I regard it as necessary to stop the publication of the CCTV footage in order to prevent prejudice to the proper administration of justice by the jurors being unduly influenced by public and private discussions. HIS HONOUR: Gentlemen, I have formulated - I did just then during the reasons a moment ago - an order, and I just want to be sure that - well, two things. One is that the order will be effective so far as Mr Dhanji and Mr Jordan, your clients, are concerned; that I've identified the right thing. Secondly, I want, for Mr Maltz's clients, to have some clarity about when this matter will be revisited and by that I have in mind we should revisit it soon after the verdict and I would hear you again, Mr Jordan, or whoever is available for your client and that we agitate it again. DHANJI: Your Honour, if there's a clear point at which it's going to be re-agitated there ought not to be any difficulty with the form of the order. I'm looking at s 12(3). For abundant caution your Honour ought to just indicate that it's to operate until such time as the jury returns its verdict and that would be a sufficient specified future event. HIS HONOUR: I thought of that but then I thought, well, I suppose they still have to get access to it. I mean, what they don't want is somebody else to have it somewhere and as soon as the verdict comes it's published. I mean, we're assuming that the only source is exhibit A, perhaps I'm right, perhaps it is the only source. DHANJI: Perhaps there ought to be a period after the verdict to allow the further ventilation of the issues and so your Honour could perhaps-- HIS HONOUR: Two working days? DHANJI: I was just saying to my friend, 48 hours after the verdict. HIS HONOUR: If you get a verdict on a Friday - two working days? DHANJI: Yes, two working days is far better. The other thing is, your Honour is required to indicate the place in which the order applies pursuant to s 11 and we would ask that the order apply throughout the Commonwealth because if it's published on an Internet site in another place, it will be accessible. DHANJI: Potentially. HIS HONOUR: Throughout the Commonwealth, and two working days after the verdict. Anything else? And the order should just be regarding exhibit A? DHANJI: Exhibit A, yes. I think we initially included the jury folder, exhibit B. HIS HONOUR: Yes. My associate reminds me one of the applications specified stills images from the thing. Mr Maltz, I don't know whether it was one of your clients or not but one of the applications indicated that. DHANJI: We would include exhibit B, your Honour. HIS HONOUR: All right, so order prohibiting publication of exhibit A and exhibit B for two working days throughout the Commonwealth. Mr Jordan, do you have anything to say about that? JORDAN: No, not about that, your Honour. HIS HONOUR: I'll come back to you. Mr Maltz, the form of the order? MALTZ: My only observation is that the order shouldn't operate for 48 hours until after the verdict is returned. The justification for the order, which I don't cavil with, is the jury. The order should persist until some much more modest period after the verdict is delivered, perhaps two hours. Once the verdict is delivered if somebody - this can be anticipated of course. If there's a concern at that point and someone actually wants the order to continue, at that point an application can be made for an interim extension. It might be two days, it might be longer, it might be shorter. One doesn't know. HIS HONOUR: I can understand that your clients have a sense of urgency and deadlines that we don't appreciate and that perhaps 48 hours or two working days is what judges in the commercial division might describe as a fairly relaxed timetable. MALTZ: The people concerned know this is coming, they're there, they can tell the Court whether they want an interim extension or whether-- HIS HONOUR: I'll get back to Mr Jordan on that. Anything else? Throughout the Commonwealth? MALTZ: I have nothing to say about that. HIS HONOUR: And exhibits A and B. MALTZ: We understand the images are stills. HIS HONOUR: Have you seen exhibit B? MALTZ: I haven't seen exhibit B. HIS HONOUR: Show exhibit B to Mr Maltz. Mr Jordan, Mr Maltz says two hours. JORDAN: With respect to Mr Maltz, he's putting that on a premise that everybody is involved in the trial and knows what's going on and will be here in any event. It's simply not the case. I have no involvement in the trial. I've come in for a specific purpose and a very limited purpose, and whether or not I am to be engaged to pursue it is a matter for my client. Whether it's me or somebody else, it is not the case that there will be somebody sitting in court ready to go, and I don't think it will be fair to my client that she be placed in a position where she needs to engage somebody. Maybe there's room for some compromise there. Two hours is pretty unrealistic. HIS HONOUR: So we're looking at between two and 48, Mr Maltz. Were you going to say something then? MALTZ: May I show exhibit B to my instructing solicitor? HIS HONOUR: That's okay with me. Is it with both of you? Yes, good, have a look at it. Mr Maltz, Mr Jordan says - I mean his client is under enough stress as it is - she shouldn't have the added obligation of having to get hold of someone to represent her at two hours' notice. MALTZ: Yes, your Honour, but I have a very clear narrow point to make and that is the justification does not extend past the jury verdict, it does not. There is nothing in the judgment-- HIS HONOUR: At this stage which I have determined you are right, because I should have added in my reasons that I will formally do so now. 1. I do not propose to determine Mr Jordan's application based upon the safety of his client because determining Mr Dhanji's application for the time being is sufficient. I make that observation because of the urgency of this matter and the time at which it is being determined. JORDAN: That was why I rose earlier just to - that was my understanding that I wanted to confirm it and it is now clear. HIS HONOUR: Yes, it's now a part of the reasons. MALTZ: So any attempts to extend it past the jury verdict. HIS HONOUR: Compromising the principle. MALTZ: Nothing has been decided today which propels the decision past the jury verdict. So this will be a completely fresh, independent, unrelated, unconnected application post the jury verdict, because it will be based on completely different grounds to that which propel the judgment to-- HIS HONOUR: You are right about all that but we've also got human beings involved in the case and Mr Jordan's client is the mother of the accused and, yes, you've got on the other hand the interests in open justice, and I do take that seriously. But we've got to find a compromise somewhere. You are right as a matter of principle, there should be a minimal delay. I think two working days is too much. You see, they could bring in a verdict at 6 o'clock on a Friday night, that's the problem, and your clients may well reasonably want to publish it that night or the next day. MALTZ: On your Honour's reasoning, there's nothing in your Honour's reasoning which denies that if somebody wants to bring a fresh application-- HIS HONOUR: Then they need to do it with some promptness. MALTZ: --we don't need to be there. HIS HONOUR: Mr Jordan, I see the force of that. Mr Maltz says look my reasoning to make the order so far keeps you safe till the verdict, and really 48 hours is just not justified. You need to have something in place. His point is look, you by the sounds of it - and we know that because you've been here making the application so it's not quite not agitated at all. It has been agitated this afternoon, so you've been here arguing it. But it is a fresh - it's not a fresh application, I suppose. It's an application which needs to be further agitated, but I think there needs to be more of a tightness in the time. JORDAN: As I said or intimated earlier your Honour, I'm reasonably comfortable with the proposition that it need not be two working days. HIS HONOUR: What is your submission? JORDAN: It would be a reasonable balance struck if it was just the one working day and the difficulty is your Honour, if for example a verdict was brought in on a Friday-- HIS HONOUR: Sorry, I just interrupt you there, Mr Jordan, your client and Mr Dhanji's client are related, even if we assume that your client is not in court at the verdict and that obviously would be extraordinary but she may well be incapacitated, we don't know. Let's assume that she's not there to take it and is otherwise preoccupied. Your client is her son so that he would need to alert someone. He has solicitors and senior counsel acting for him so that it could well be that some arrangement could be made between the solicitors for some agency arrangement whereby the solicitors for Mr Dhanji's client, Mr Gibson could-- JORDAN: Your Honour, to be fair they are the same solicitors. HIS HONOUR: Thank you for reminding me. JORDAN: No problem at all. Your Honour, I don't really think I can say anything more about it. I've made the point and I've taken it as far as I can. HIS HONOUR: The order which I make is an order prohibiting the publication of exhibits A and-- MALTZ: My instructions are that these are stills of the video, they don't convey the dynamic concerns that were agitated today about-- HIS HONOUR: See your point, but I'm going to order non-publication of the stills of the incident. I will not make it blanket exhibit B, I will limit it to and I'd ask Mr Dhanji just to identify the photographs which show the action. MALTZ: And they ask for a related order that the media is to be given access to the permitted the stills. HIS HONOUR: Yes, I'll do that. There's no reason I shouldn't do that, Mr Dhanji? DHANJI: I would submit your Honour, behind the first tab pp 23, 24, 25, 26, 27 and 28, behind the next tab pages - sorry, photographs 21, 22, 23, 24, 25 and 26. HIS HONOUR: Do you want to be heard on that? MALTZ: I'll leave it in your Honour's hands. HIS HONOUR: I will give them access to all the exhibits so far. There is the police photograph marked 21 by Mr Sweeney, that was the bike, and photograph 20 marked by Mr Bocos. HIS HONOUR: Let me make the orders and then if you take exception to them I will revise them. 1. I make a non-publication order prohibiting the publication of exhibit A in these proceedings and prohibiting the publication of the following items in exhibit B: behind the first tab coloured yellow, photographs 23, 24, 25, 26, 27 and 28; and behind the second tab coloured orange, photographs 21, 22, 23, 24, 25, and 26. That order applies anywhere in the Commonwealth of Australia and it operates until two hours has elapsed from the delivery of verdicts in this trial. HIS HONOUR: Everyone will have to be on their toes if there is a hung jury, but that is another thing and when I say, on their toes, just aware of what is happening. Do you want those numbers again? First tab 23, 24, 25, 26, 27, 28 and the second tab 21, 22, 23, 24, 25, 26. 1. I make an order granting access to any media organisations to the balance of exhibit B to exhibits C, D, 1 and 2 and exhibits E and F, which are the two interviews. MALTZ: The one last thing is-- HIS HONOUR: My associate will type this order out, I'll sign it and she'll make it available to all of you. MALTZ: One last order that would mean that there is no need for my side to come to court in the event that there's no-- HIS HONOUR: What's the form of the order? MALTZ: The form of the order is that in the event that the non-publication order lapses, that the media be given access to exhibits A, B and 4. 1. In the event the non-publication order lapses because two hours has expired since the delivery of verdicts without any further order, I grant access to any media organisation to exhibit A and to those items in exhibit B which were the subject of the non-publication order. DHANJI: I apologise, can I just ask, assuming your Honour has so found, would your Honour indicate that your Honour regards it as necessary for achieving the purpose for which the order has been made, that it apply outside New South Wales s 11(3). HIS HONOUR: I've looked at that and I add this to my reasons for judgment, not the order. 1. I am satisfied by Mr Dhanji's submission that I should make the order apply anywhere in the Commonwealth of Australia. The reason is that I accept his submission that if published in other parts of the Commonwealth it is likely to become available on the internet and therefore widely accessible within New South Wales. That would defeat the order. It is therefore necessary for achieving the purpose for which I made the order, for the prohibition to extend to anywhere in the Commonwealth. DHANJI: Finally, if the record could show in respect to any of your Honour's determinations and the matter in which your Honour has done and particular in determining Mr Jordan's application to finality that it is now 7.15. HIS HONOUR: Thank you very much you are quite right, it is now 7.15, in fact it is 7.18. One other question, my reasons. 1. I direct that my reasons be transcribed and made available to me. HIS HONOUR: Does anyone need them sooner rather than later? They'll come to me in a week or so. I don't know, it's part of the trial, we're getting a daily. So it will probably be emailed to me tomorrow when I'm interstate and I'll revise them over the weekend and early part of next week. MALTZ: I'm not instructed to press for anything else. HIS HONOUR: Anything else? DHANJI: No, thank you, your Honour. HIS HONOUR: It's an occupational hazard for my associate to some extent, as it is for the other court staff, but we had a Sheriff's officer here for some time. The Court officer has been here for nearly three and a half hours beyond the time he would expect to be here. There is a monitor listening to these proceedings who is well beyond the time he or she expected to be on duty. I don't know what inconvenience I have caused to those people. But it has been important to determine this issue so far as the administration of justice is concerned. I am very grateful for the fact they have remained without choice but on duty and enabled me to complete this task. I will now adjourn. ********** 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: 21 July 2016