State of New South Wales v Reed

Judgment 1These are proceedings brought by the State of New South Wales under the Crimes (Serious Sex Offenders) Act 2006. That Act confers power upon the Court, in certain circumstances, to make an order for the extended supervision of a sex offender for a period of up to five years after the conclusion of his or her sentence of imprisonment. 2The Act requires the Court to conduct a preliminary hearing into the application within 28 days after the commencement of proceedings. The preliminary hearing in the present case was conducted and determined by me on 23 June 2011: see State of New South Wales v Reed (Preliminary) [2001] NSWSC 625. 3During the course of the day on which the preliminary hearing was conducted, I received notice in chambers from the Court's Public Information Officer that a request had been made on behalf of the media for access to the written submissions relied upon by the State. Although informally made, the request was treated as an application by a non-party for access to material held by the Court. 4The defendant opposed the application and sought an opportunity to provide written submissions as to why it should not be acceded to. When the proceedings were next in court on 17 August 2011, I informed the parties that I did not propose to grant leave to the media to inspect the written submissions. These are my reasons for that decision. 5The principle of open justice reflects a recognition that the administration of justice is enhanced by being laid open to public scrutiny. The freedom of journalists to attend court and report upon proceedings is an important aid to the integrity of that principle, but is of doubtful benefit if proceedings are conducted in such a way as to make it difficult for an observer to follow the course of the argument. 6It often happens in proceedings in this Court that, in the efficient use of court time, written submissions are provided in advance or handed up during argument and spoken to only briefly in open Court. Vigilance must be exercised to ensure that such efficiencies do not come at the expense of open justice. For that reason, the use of a written submission or other document in court is often determinative of the question whether it should be made available to a journalist upon request. Without access to such material, it will often be difficult for journalists to gain a proper understanding of the issues in the proceedings so as to be able to publish a fair and accurate report. The public interest in facilitating a fair and accurate report of proceedings in court is well recognised: see John Fairfax Publications Pty Limited v Ryde Local Court (2005) NSWLR 512 at 523.9 and the authorities there cited. 7It does not follow, however, that the public (including any journalist) has a right to inspect any document used in open court. That is because, as explained by Spigelman CJ in John Fairfax Publications Pty Limited v Ryde Local Court (2005) NSWLR 512 at 521.2, the principle of open justice is just that, a principle and not a right. The Chief Justice noted in that case that any such positive right must be created by or under statute: cf s 6 of the Court Security Act 2005, which creates a statutory right (specifically extending to journalists) to enter and remain in an area of court premises that is open to the public, subject to certain qualifications. 8Although there is no right at common law for a non-party to inspect a document used in open court, this Court nonetheless has power to grant access to such documents in an appropriate case. The circumstances in which access will ordinarily be granted to material held by the Court are addressed in Practice Note SC Gen 2. Clause 6 of the Practice Note notes that access to material in any proceedings is restricted to parties, except with the leave of the Court. Clause 7 provides: Access to material in any proceedings is restricted to parties, except with the leave of the Court. 9As noted on behalf of the defendant, the Practice Note is not a Rule of Court, but provides "authoritative guidance" as to how the Court's discretion to grant leave to inspect a document will ordinarily be exercised: see HIH Insurance Limited (in liquidation) v General Re Insurance Australia Limited [2006] NSWSC 128 at [13] per Hoeben J. 10The document to which access has been sought in the present case is the written outline of submissions relied upon by the State of New South Wales in support of the orders sought at the preliminary hearing. The written submissions were used in open court and accordingly fall within the class of documents to which access would normally be granted to a non-party in accordance with clause 7 of the Practice Note. However, as expressly noted in the Practice Note, even where material has been read in open court or is included in pleadings, there may be good reason for refusing access (see clause 16 of the Practice Note). 11As already noted, the present application was made through the Court's Public Information Office (attached to the chambers of the Chief Justice). The defendant complained that the applicant had not provided any reason for the grant of access. For my part, I would have thought that an application made on behalf of the media for access to a document used in open court would not ordinarily need to articulate the reason for making the request. The principle of open justice and the duty of journalists to report on the proceedings fairly and accurately afford adequate reason, in my view, for such a request. Whether it should be granted in any particular case, however, is of course a matter for the judge nominated to determine the application. 12My primary reason for refusing the application in the present case derives from the nature of the inquiry required to be undertaken at the preliminary hearing mandated by section 7 of the Crimes (Serious Sex Offenders) Act 2006. The section requires the Court, in effect, to determine whether an evidentiary burden would be satisfied on the hypothesis of proof of a vast array of material that in fact remains untested in the proceedings. Section 9 of the Act prescribes a list of matters to which mandatory regard is to be paid in determining the final application. Section 6 provides that the application must be supported by documentation that addresses each of those matters. 13In that context, section 7 acts (in part) as a filtering process, requiring the Court to determine whether it is satisfied "that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order". The future conduct of the proceedings is mandated by the outcome of the preliminary hearing. If, following the preliminary hearing, the court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the court must make certain orders for the appointment of experts to conduct psychiatric or psychological examinations of the defendant and to report the results of those examinations to the court: see s 7(4) of the Act. If the court is not satisfied in the terms of s 7(4), the court must dismiss the application: see s 7(5) of the Act. 14Importantly, it is no part of the Court's task under section 7 to test or assess the likely reliability of the allegations in question. The determination is made without any testing of those allegations and on the hypothetical assumption that they would be proved. 15As is usually the case, the supporting documentation in the present case contained a great deal of information from a large variety of sources. In that context, as I noted in my judgment on the preliminary hearing, my task was greatly facilitated by the written submissions provided on behalf of the State and the defendant's response to that document. The written submissions provided a comprehensive but succinct summary of the matters alleged in the supporting documentation. On behalf of Mr Reed it was indicated, without making any admission or concession as to the appropriateness of the final relief sought by the State, that he accepted that the submissions accurately summarised allegations made in the supporting documentation and, further, that he accepted that those allegations would, if proved, justify the making of an extended supervision order. 16The risk of prejudice to Mr Reed of providing such submissions to a non-party is manifest. Much of the material summarised in the submissions was second or even third-hand hearsay. It included a great deal of confidential medical information and a great deal of sensitive personal information not only in relation to Mr Reed but also in relation to others. I formed the view that the potential prejudice to Mr Reed of providing that material to the media was a proper reason to decline the request. 17Separately, in declining the access application, I had regard to the objects of the Crimes (Serious Sex Offenders) Act . Section 3 of the Act provides: 3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation. 18I have previously remarked in determining applications under the Act that the twin objects of ensuring the safety and protection of the community (which is the primary object) and of encouraging serious sex offenders to undertake rehabilitation are not binary. Plainly, the rehabilitation of offenders is conducive to the safety of the community. In my view, there is a substantial risk in the present case that the object of encouraging Mr Reed to undertake rehabilitation will be undermined if he is exposed to sensationalised reporting of this case. My apprehensions in that respect have been borne out by the reporting that in fact occurred when I published my reasons for decision after conducting the preliminary hearing. An article published on 24 June 2011 in the Sydney Morning Herald stated: "Yesterday a New South Wales Supreme Court Judge agreed to the State's urgent request that Mr Reed be put on extended supervision for up to five years more after his sentence expires in September". 19That statement contained a number of errors or otherwise misleading assertions. First, there was no urgency in the State's application other than that which arose as a consequence of the statute, which visits a draconian timetable upon both the State and the Court for the determination of such applications. In particular, section 6(2) of the Act provides that a n application may not be made until the last 6 months of the offender's current custody or supervision. 20Secondly, at the preliminary hearing, the Court did not "agree to the State's request that Mr Reed be put on extended supervision for up to five years". The only orders made on 23 June 2011 were for the appointment of the two psychiatrists. The question of extended supervision remains to be determined. 21A separate article appeared on the Sydney Morning Herald website under the headline "Clamp down on sex fiend". A further article was published under the headline "Worried Judge extends tough supervision of sex offender". Each of those headlines entails the same misconception as to the nature of the preliminary hearing and the orders made. 22Whilst the press is of course at liberty to report on the proceedings, inaccurate or sensational reporting is in my view inimical to the objects of the Act. The rehabilitation of sex offenders is a difficult and complex problem. I doubt whether the rehabilitation of sex offenders is ever enhanced by intense media scrutiny, which carries the risk of driving individual offenders out of society and, importantly, away from the resources, support and supervision they need to achieve lasting rehabilitation. 23For those reasons, I formed the view that there was good reason to refuse access to an outline of written submissions which summarised a vast amount of untested material and which was produced for the specific purpose of assisting the Court to determine the preliminary issue required to be determined under section 7 of the Act.