State of New South Wales v Holschier (No 4) [2019] NSWSC 393

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Holschier (No 4) [2019] NSWSC 393 Hearing dates: In chambers on the papers Date of orders: 09 April 2019 Decision date: 09 April 2019 Jurisdiction: Common Law Before: Campbell J Decision: See [14] below Catchwords: MEDIA AND COMMUNICATIONS – Open justice – access to court files – application for access – restricting access does not prevent accurate reporting in an open court Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), s 21A Category: Consequential orders (other than Costs) Parties: State of New South Wales (Plaintiff) John Raymond Holschier (Defendant) Representation: Counsel: S. McGee (Plaintiff) M. Avenell (Defendant)

Solicitors: Crown Solicitor (Plaintiff) Legal Aid Commission (Defendant) File Number(s): 2018/366776

Judgment 1. I handed down judgment in this matter on 1 April 2019 refusing the State of New South Wales's application for a further extended supervision order of one year's duration against Mr Holschier for reasons I then gave. 2. On the same day, Mr Joshua Hanrahan, a journalist with The Daily Mail Australia applied for leave to inspect and copy all available documents including affidavits and written submissions for the purpose of preparing a fair and accurate report for publication in The Daily Mail Australia. 3. When Hoeben CJ at CL made an interim supervision order on 7 December 2018, as seems to be standard in these matters, his Honour made an order as sought in the summons filed on 28 November 2018 in the following terms: Access to the Court's file in respect of any document shall not be granted to a non-party without leave of a judge of the court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them the opportunity to be heard in relation to the application for access. In my opinion this order has not merged in the order I made dismissing the application. 1. In obedience to the order, after Mr Hanrahan's application was referred to me I caused my associate to give notice of the application to the legal representatives of the parties and to provide them with the opportunity to make written submissions about the application if they wished. Written submissions were received from Ms S McGee, counsel for the plaintiff, on 3 April 2019 together with a note from Ms M Avenell, counsel for the defendant, joining in, or adopting, Ms McGee's submissions. 2. Through the court's media manager Mr Hanrahan was invited to make submissions in opposition to the submissions of the parties, if he wished. I was informed that he did not wish to make any submissions. 3. The parties relied essentially on four points. First, the evidence contains detailed information of a highly sensitive and personal nature about the defendant, his relationships with others including his children who are not yet 18 years of age. The information also extends to confidential information discussed with psychiatrists and psychologist for the purpose of receiving treatment for his psychiatric illness. The information contained in the evidence extends beyond those matters which the Court considered relevant as referred to in the reasons for judgment. Disclosure of the detail of the information may have a negative effect upon Mr Holschier's engagement with treatment providers in relation to his disease. 4. Secondly, restricting access does not prevent the media from delivering "accurate and fulsome reporting" of the proceedings which took place in open court, initially before Hoeben CJ at CL on 7 December 2018 and then the final hearing before me on 5 March 2019. 5. Thirdly, refusal of the present application in its general form does not prevent a subsequent application particularising the type of information sought for the purpose of reporting. 6. And, fourthly, the victim impact statement tendered pursuant to s 21A of the Crimes (High Risk Offenders) Act 2006 (NSW) is to be kept confidential because the person who made the statement does not consent to its disclosure: s 21A(6). 7. The parties argued, in the alternative, that if the Court was not persuaded to refuse access, the matter should be adjourned to enable the parties to review the material to make specific objections to access on privacy grounds especially involving the privacy of persons referred to in the evidence who are not parties to the proceedings. It was also submitted that if access to particular material was to be granted the parties would assist the Court by attending to appropriate redactions before access is exercised. 8. I acknowledge that the open justice principle does not confer a right upon any person to have access to all material lead in open court. At the same time, the news media serve an important role in facilitating the practical application of the open justice principle by observing court proceedings, providing a fair and accurate report of them for the information of the general public, and by commenting upon the outcome of court proceedings in an appropriate way. 9. It is true that any journalist present in court during the hearings would have been at liberty to publish a fair and accurate report of them. But this observation only goes so far. Proceedings brought under the Act are conducted by reference to evidence lead largely in documentary form. Typically, this material runs to a number of lever-arch folders. The key documents upon which the parties rely, which may be included in a separate court book to assist the judge, fill a volume of some hundreds of pages. No one sitting at the back of the court, journalist or community member, would have any idea about the contents of those documents as it is not the practice that they are read aloud or even orally summarised. Submissions are substantially made in writing, albeit supplemented by oral argument at the hearing. 10. While I am sympathetic to the right to privacy of non-parties, I am not persuaded that there should be a blanket ban on all evidence lead in the proceedings restricting the news media, and therefore the public, only to the reasons for judgment. Subject to appropriate redactions to protect the privacy, as I have said, of non-parties, I would have thought the journalist should be allowed access, certainly to key documents, such as the reports of the court-appointed experts, the transcript of their oral evidence, the risk assessment and risk management reports prepared by senior professionals within Corrections New South Wales and other expert reports read in the proceedings. This body of material generally summarises the available primary documentation in any event, at least so far as it is relevant. 11. Given the request for more time by counsel, I propose to request the Court's media manager to invite Mr Hanrahan, if he can, to specify the documents he wishes to inspect in greater detail than "all available documents". 12. I am anxious that the process of deciding on access should not become unduly protracted or complicated. 13. A copy these reasons may be published to the parties and to Mr Hanrahan. 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: 09 April 2019