Stinson (a pseudonym) v Nationwide News Pty Ltd

1. [1]

   MACFARLAN JA: I agree with Button J.

2. [2]

   BUTTON J:

Introduction

1. [3]

   The position of the first respondent, the Crown, was to resist the orders sought, largely but not completely. The submission of the second and third respondents, Nationwide News Pty Ltd and Daily Mail Australia Pty Ltd (collectively, the media respondents) was that leave should be refused with regard to all orders proposed by the applicant.

2. [4]

   Mr Mattias Stinson was also permitted to be represented at the hearing in this Court, but he did not make submissions beyond those for the applicant.

3. [5]

   In general but not entire accordance with the position of the Crown, I would grant leave to appeal, make certain “housekeeping” orders, and, except with regard to one matter, dismiss the appeal.

Background

1. [6]

   The following matters were either undisputed or established to my satisfaction on the evidence placed before us.

2. [7]

   In early 2022, the applicant was charged with the sexual assault of a 13-year-old boy and the detention of a female child for advantage. Those offences were alleged to have been committed in October 1980.

3. [8]

   The applicant was refused bail for a time. Eventually, he was granted bail by Chen J, after a hearing in the Supreme Court Bails List. As is orthodox, various documents were tendered on the hearing of the bail application, including the court attendance notices (CANs), a number of statements of facts prepared by the police, a Crown case statement (CCS) prepared by the Crown, and the criminal record and bail report (the latter including court outcomes not limited to convictions or sentences) pertaining to the applicant. (I interpolate that none of the documents in question was placed before this Court on the application, so I have relied largely upon their descriptions in the primary judgment.)

4. [9]

   The criminal record of the applicant shows that he has previously been convicted of a number of offences. They include two acts of indecency, an offence of maliciously inflicting actual bodily harm with intent, and also the offence of murder. On the evidence placed before this Court, the murder was committed in July 1986 against an 18-year-old male, after the deceased had rejected the sexual advances of the applicant. At the time, the applicant was in his late 20s. In 1987, he was sentenced to imprisonment for life (in those days, such a sentence raised the probability of eventual release).

5. [10]

   Separately, the CCS regarding the current allegations, when read with other evidence placed before this Court, asserts that a person who was a child at the time is a witness to the offending alleged to have occurred in 1980.

6. [11]

   It is also common ground that the applicant is related to Mr Mattias Stinson, an Australian sportsman who was very well-known in the past; having said that, he retired many years ago from professional sport, and is surely less famous than he used to be. There was affidavit evidence from him that he would be deeply distressed if the allegations against the applicant were made public, and furthermore that the current charitable and other activities of Mr Mattias Stinson may be expected to be adversely affected by any such publicity.

7. [12]

   Finally, to make clear the intertwined issues that arise in this application, Mr Mattias Stinson and the witness who was a child at the time of the events to be described are one and the same person.

8. [13]

   Chen J refused to make any orders suppressing the matter or prohibiting publication, except for an interim order pending resolution of a foreshadowed application to this Court. His Honour also declined to make any orders restricting access to the court file.

9. [14]

   The final aspect of this thumbnail sketch is that it seems that an order suppressing the matter in some way remains extant in the Local Court, where one presumes an initial unsuccessful bail application was made, and from which we were told that the matter has now been committed for trial in the District Court, which proceedings may be expected to take place in the first half of 2023.

Submissions

1. [15]

   Despite the way that amended grounds of appeal were drawn, it was accepted for the applicant that an application for leave to appeal such as this calls for the fresh consideration of the appropriateness of the orders sought by this Court, not the identification of error in the primary judgment: see Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125. No party made submissions to the contrary.

2. [16]

   It was clarified for the applicant that the relief sought in this Court encompassed refusing access to the media respondents to the court file, including seemingly that of the Local Court; suppression of dissemination of information about the current allegations along with aspects of the criminal record of the applicant; and non-publication orders to similar effect. Those orders would encompass a number of police facts documents (relating both to the current charges and certain prior convictions, all of them tendered on the bail application), the CCS, the charge certificates prepared for committal, the criminal record, and the bail report.

3. [17]

   On the other hand, a foreshadowed application to suppress the names of persons who provided character evidence in support of the bail application before Chen J was not pressed. Nor were there any orders sought about the CANs, which set out the current charges, their particulars, and the relevant offence-creating provisions.

4. [18]

   It was accepted that, to the extent that Mr Mattias Stinson is a person who is proposed to be a witness, and who was a child at the time of the events about which evidence is to be given, s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) (the CCP Act) would apply. It was also accepted that that section makes direct or indirect identification of that person a criminal offence, without any need for an order to the same effect from this Court. Having said that, the parameters of that section were said to be unclear and untested, with the result, it was submitted, that a prophylactic order should be made by us for abundant caution.

5. [19]

   Separately, as I understood the submission, Mr Mattias Stinson is not only a person to whom s 15A of the CCP Act applies. Section 8(1)(d) of the Suppression Act also applies to him, as a witness in criminal proceedings of a sexual nature. It was said that publication of the details of the allegation against the applicant should be prohibited, in order to avoid causing “undue distress or embarrassment” to that witness. And it was said that, in the circumstances of this case, the public interest in open justice to which s 6 of the Suppression Act gives primacy had been outweighed.

6. [20]

   A separate submission was that the administration of justice requires wholesale suppression of the new allegations against, and the previous convictions of, the applicant, in the interests of a fair trial, pursuant to s 8(1)(a) of the Suppression Act. Various concerns were raised, including about witnesses being tainted in their recollections, and jurors being prejudiced, by publicity about the applicant.

7. [21]

   The fallback position for the applicant was that, at the least, even though it was certainly canvassed at the bail hearing in open court, the previous murder conviction of the applicant should be suppressed, in the interests of justice.

8. [22]

   The Crown submitted that the vast majority of the orders sought on behalf of the applicant were unnecessary, and not to be justified by the considerations to be found in the Suppression Act. There were two exceptions to that: the Crown accepted that this Court could be satisfied that the previous convictions for indecent assaults and for murder should not be publicised by the media respondents.

9. [23]

   Counsel who appeared for both media respondents made the following submissions in resistance to the entirety of the orders.

10. [24]

    In written submissions, counsel submitted that the principle of open justice, especially in the exercise of the criminal jurisdiction of the Supreme Court, weighs heavily in favour of granting access to the file and promulgation. He submitted that fair and accurate reporting, as well as standard jury directions when the proceedings go to trial, would ameliorate any risk of prejudice generally.

11. [25]

    In oral submissions, the findings of the primary judge about presumptions of access to the file were embraced.

12. [26]

    Further support for access and promulgation was said to come from the period of delay between these proceedings and the substantive proceedings, which have been estimated by one source to occur in late 2023.

13. [27]

    Affidavit evidence read before this Court by the second respondent was said to support a submission that any suppression of the prior conviction for murder would be fruitless in any event, given that there were quite a few reports accessible on the Internet about that very topic. And the point was made that futile orders can hardly pass the demanding test of necessity to be found in s 8 of the Suppression Act.

14. [28]

    With respect to the submission of the applicant regarding undue distress and embarrassment to Mr Mattias Stinson, counsel in written and oral submissions relied upon the work that s 15A of the CCP Act would automatically do to constrain reporting that would connect Mr Mattias Stinson to the current criminal proceedings.

15. [29]

    Three key arguments in favour of promulgation and in resistance to the submissions based upon the feelings of Mr Mattias Stinson were made orally, as follows. First, the Suppression Act is not concerned with reputations of persons. Secondly, the belief of Mr Mattias Stinson that he will suffer undue distress and embarrassment was plainly insufficient to warrant any orders sought. Thirdly, as the results of Internet searches contained in the connections to the affidavit evidence demonstrate, the connection between the applicant and Mr Mattias Stinson is already well-known and readily accessible in the public domain.

Determination

1. [30]

   As I have said, in my opinion the vast bulk of the orders sought should not be made.

2. [31]

   Turning first to the question of access to the file, there is a broad discretion in that regard, as demonstrated by the decisions of John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465, John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324, State of NSW v Bowdidge (No 2) [2020] NSWSC 159 (Hamill J), and R v Dawson [2022] NSWSC 555 (Harrison J). And access to the file is a separate question from whether the material on it should be suppressed or subject to a non-publication order, not least because one expects there will come a time when any such latter orders would come to an end.

3. [32]

   In my opinion, although I have come to the view that there should be a suppression order with regard to one matter, that is no reason why the media respondents should not have complete access to the file. I believe that they can readily be trusted not to publish information, unless or until they are permitted to do so, that they may obtain from the file.

4. [33]

   Separately, as I understand it all of the documents on the file were either tendered in open court or reflect what happened in open court. That in itself is a powerful reason for permitting the media respondents to have access to them.

5. [34]

   It follows that I would impose no restriction on the second or third respondents having access to the file, and by that term I include any file of any court relating to the current criminal proceedings against the applicant.

6. [35]

   Turning now to questions of suppression or non-publication: as for the current allegation against the applicant, I respectfully think that there is a circularity of reasoning in it being suggested that police facts or the CCS, no doubt based upon the statements of proposed witnesses, could somehow taint the evidence of those witnesses if publicised. In similar vein, bearing in mind that one would expect the Crown case at trial to be very largely in conformity with those documents, there is no basis to think that reporting about them now could damage the impartiality of the jury.

7. [36]

   As for distress or embarrassment generally to Mr Mattias Stinson, it is common for family members to be distressed, embarrassed, infuriated, affronted, or experience countless other negative emotions, when someone close to them is accused of very grave crimes. But that is no reason to restrict the alleged facts of matters in which there is a powerful public interest. Nor is fame, wealth, celebrity, damage to business or other activities, or any other attribute of a family member of a person accused of a serious crime a good reason for doing so, except perhaps in most unusual circumstances.

8. [37]

   In short, the feelings and opinions of Mr Mattias Stinson expressed in his affidavit provide no general basis for suppressing or ordering the non-publication of any of the allegations against the applicant. They certainly do not render such measures necessary.

9. [38]

   Separately, it is true that s 8(1)(d) of the Suppression Act explicitly speaks of the protection from “undue distress or embarrassment” of a person who is a witness in criminal proceedings for sexual offences, and that Mr Mattias Stinson falls within that category. But I am well satisfied that the primacy of the public administration of criminal justice outweighs any distress or embarrassment that might accrue to Mr Mattias Stinson arising from the fact that he is to be a witness about events that allegedly occurred over forty years ago. I cannot accept that the appropriate order is wholesale suppression of what is alleged against the applicant, on the basis that Mr Mattias Stinson is said to recall some indirect circumstantial evidence in relation to the allegation. Again, the test of necessity is not passed on this basis.

10. [39]

    Separately, s 15A of the CCP Act operates of its own force to inculpate persons or organisations who breach it. It is unnecessary and wrong for this Court to make an order that seeks to duplicate it or overlap it: see Nationwide News Pty Ltd v JS and SD [2022] NSWSC 774. It is also inapposite for this Court to provide some kind of advisory opinion about the parameters of a criminal offence when an appeal against conviction for that offence is not before it. As counsel for the media respondents submitted, it is simply incumbent upon his clients (and any other natural or corporate person) to ensure that they comply with the prohibition in that section, on pain of prosecution and punishment.

11. [40]

    So far, I have explained why I would permit access to both media respondents to the court file in its entirety, including as necessary any document on the Local Court file; not suppress the recent allegations against the applicant to any degree, for any reason; and simply permit s 15A of the CCP Act to operate of its own force.

12. [41]

    Nor, subject to one exception, would I make any order about the criminal record of the applicant. That is because, speaking generally, the objective fact is that the bail application occurred in open court; members of the public should almost always be permitted to understand what happens in open court; it is commonplace that interlocutory criminal proceedings such as bail applications well before trial can raise adverse material about accused persons; and there are a panoply of measures that trial judges can take to ensure that juries are impartial tribunals of fact.

13. [42]

    Even so, the exception that I believe is “necessary to prevent prejudice to the proper administration of justice”, even taking into account the primacy of the public interest in open justice, is as follows. I believe that the murder conviction of the applicant should not be the subject of renewed publicity now, in the months leading up to the trial next year. I say that for the following reasons.

14. [43]

    First, whilst the affidavit evidence filed for the media respondents shows that the murder conviction and its underlying facts do appear on the Internet if one searches for information about the applicant, they do not do so in overwhelming quantity. Some of the details require quite a bit of digital investigation. In other words, I do not believe that the order I propose is useless in the context of material already available in any event.

15. [44]

    Secondly, murder is an offence that excites, on the one hand, great public interest; on the other hand, by its nature it also excites severe condemnation, if not revulsion. Child sexual assault has the same attributes. In other words, neither the new allegation nor the past conviction under discussion is free from emotional reaction on the part of members of the community. Nor are they free from the risk of prejudice on the part of jurors.

16. [45]

    Thirdly, it is significant that the evidence before us is that the murder was committed in 1986 against an 18-year-old male, to whom the applicant had made a sexual advance. Any person learning of it, and knowing of the current allegations, will draw an almost inevitable connection between the murder and the current charge of child sexual assault against a 13-year-old boy in 1980, with concomitant serious alleged offending against a girl of 12 years of age. In other words, it is not just the fact that the applicant has been convicted of murder; it is also the fact that it was committed in a context of sexual attraction to a male teenager, within six years of the current allegations.

17. [46]

    Fourthly, it is true that trial judges are armed with an arsenal of measures before and during a criminal trial to ensure that juries are neither inappropriately informed nor prejudiced, with the result that the tribunal of fact is a “clean slate” upon which the evidence is written. But as the practicalities of the administration of criminal justice demonstrate, those measures are not always successful in ensuring that individual jury members are free from prejudice or misbehaviour. And in any event, even jurors themselves, acting entirely conscientiously, by definition cannot be aware of the effect that pre-trial publicity may have upon their minds unconsciously. In short: the criminal justice system does not claim to be perfect in being capable of avoiding jury prejudice.

18. [47]

    Fifthly, it is an article of faith in the continuation of the institution of trial by jury that jury members obey the directions of trial judges about what they should and should not do, and how they should and should not approach things: see generally the oft-quoted judgment of McHugh J in Gilbert v The Queen (2000) 201 CLR 414 at 425 at [31]; [2000] HCA 15. But such faith is not absolute: to give one example, if it were, s 137 of the Evidence Act 1995 (NSW), and its predecessor in the common law rules of evidence, would not have existed for over a century: see R v Christie [1914] AC 545, and Police v Dunstall (2015) 256 CLR 403 at 417 at [26]; [2015] HCA 26. The closely related test for admission or exclusion of tendency and coincidence evidence, constantly applied in criminal courts, is another example of the pre-supposition in the rules of evidence that, as a result of the prejudicial effect of certain kinds of material, directions to juries by trial judges will not always be efficacious.

19. [48]

    Sixthly and finally, one expects there to be significant publicity about this matter generated by the media respondents, and perhaps others. Combined with the reasonable proximity of the trial, I think that the statutory test of necessity for excluding the murder conviction and its underpinning facts from promulgation has been established.

20. [49]

    To be clear: I am not of the same view with regard to the previous convictions for indecent assault of the applicant. They do not have the same adverse force as a conviction for murder. And they would surely have been an important consideration in the decision of Chen J to grant bail. I do not believe that the applicant has established that it is necessary that they be restricted, on any basis.

21. [50]

    Finally, without making further formal suppression orders, this judgment itself must not be the subject of promulgation. If it were, not only would my approach to aspects of the criminal record of the applicant be rendered futile, but also s 15A of the CCP Act would be breached. I shall also ensure that it is not placed unrestrictedly on NSW Caselaw until any trial by jury is concluded.

Proposed orders

1. [51]

   For the foregoing reasons, I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      The interim orders made by this Court on 8 September 2022 are dissolved.

   3. (3)

      Any order of the Local Court restricting access to the court file, or suppressing any matter, or ordering non-publication of any matter, is dissolved.

   4. (4)

      The second and third respondents may have access to any relevant file in the Local Court, in the Supreme Court, and in this Court.

   5. (5)

      The fact that the applicant has previously been convicted of the offence of murder, and any of the underlying facts of that offence, are suppressed, and there must be no publication regarding the conviction or its underlying facts.

   6. (6)

      Order 5 above applies throughout the Commonwealth of Australia.

   7. (7)

      Order 5 above comes to an end at the conclusion of any trial by jury of the current allegations against the applicant, or earlier if it becomes clear that no trial by jury is to be conducted of those allegations.

   8. (8)

      Appeal otherwise dismissed.

2. [52]

   WILSON J: I also agree with Button J.