Attorney General of NSW v Huckstadt (No 2)

On 18 April 2017 I made an interim order pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act) on the application of the defendant, which prohibited the publication of evidence given or to be given in the proceedings or the fact that the defendant may be subject to conditional release. The original interim order has been subsequently extended to 5pm on 15 May 2017 to give the parties an opportunity to put on written submissions on the question whether a non-publication order ought be made under s 7 of the Act.

In his submissions handed up on 18 April 2017, the defendant applied for the following orders:

This matter is not listed for the final hearing of the plaintiff’s application for an extension order under Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Forensic Provisions Act) until 11 July 2017. On 18 April 2017 I declined the defendant’s application for an interim non-publication order under s 10 of the Act which would continue until the final hearing of the matter since, where an interim order is made, the application is to be determined as a matter of urgency. I made an interim order for a shorter period and directed that evidence and submissions be filed in support of the application for an order under the Act so that the application could be considered as soon as possible.

In the written submissions filed on 1 May 2017 the defendant applied for the following orders, which I take, in the absence of a notice of motion, to have superseded the previous application:

I was prepared to deal with the application on the basis of the orders sought in the submissions. However, the appropriate procedural course, which should generally be followed, is for an applicant for an order under the Act to file and serve a notice of motion. If the original formulation of the orders is sought to be amended, an amended notice of motion should be filed and served.

All references to statutory provisions in these reasons are to the Act, unless otherwise indicated.

The interim order was made “without determining the merits of the application”: s 10(1). The purpose of these reasons is to determine the defendant’s application for an order under s 7 of the Act.

The defendant’s application for an order under s 7 of the Act arises in the context of these proceedings which involve the plaintiff’s application that his status as a forensic patient be extended. A summary of the background to the proceedings is to be found in my reasons for granting an interim extension of his status: Attorney General for New South Wales v Huckstadt [2017] NSWSC 441 at [5]-[8].

It is sufficient, for present purposes, to note that in 2010 the defendant was committed for trial for a number of sexual offences. As he was found unfit to be tried, the matter proceeded as a special hearing before Payne DCJ in December 2011 pursuant to s 19 of the Forensic Provisions Act. Her Honour held that, on the limited evidence available, the defendant had committed five of the counts on the indictment in the period between 1 January 2006 and 25 January 2007: three offences of sexual intercourse with a female child between 14 and 16 years contrary to s 66C(3) of the Crimes Act 1900 (NSW); and two offences of indecent assault under s 61M(1) of the Crimes Act (the index offences). Pursuant to s 23 of the Forensic Provisions Act, Payne DCJ indicated that, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the index offences, the Court would have imposed a sentence of imprisonment. On 14 June 2012 Payne DCJ nominated limiting terms, the last of which expired on 26 April 2017. Her Honour referred the defendant to the Mental Health Review Tribunal (the Tribunal) pursuant to s 24(1)(a) of the Forensic Provisions Act and ordered, pursuant to s 24(1)(b), that the defendant be detained in such place as the Tribunal directed. Accordingly, the defendant became a forensic patient by reason of the operation of s 42 of the Forensic Provisions Act. By reason of the interim extension order which I made on 19 April 2017, the defendant remains a forensic patient.

Section 6 of the Act requires the court, in deciding whether to make a suppression order or non-publication order, to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

Section 7 provides that a court has power, when making a suppression order or non-publication order, to restrict the publication of information tending to reveal the identity of a party or witness or associate and information concerning evidence given in the proceedings.

Section 8 of the Act sets out the grounds for making a suppression order or non-publication order in the following terms:

Section 10 of the Act provides:

Section 12 of the Act provides:

Section 68 of the Mental Health Act 2007 (NSW), which is entitled “Principles for care and treatment”, opens with the following words:

What follows these prefatory words is a list of principles, which includes the following:

Chapter 6 of the Mental Health Act deals with the Tribunal. Part 2 of Chapter 6, contains provisions, including ss 149, 151 and 162, which govern the procedure of the Tribunal. Section 149 of the Mental Health Act relevantly provides that Part 2 applies to proceedings in the Tribunal.

Section 151 of the Mental Health Act provides:

Section 162 of the Mental Health Act provides:

Section 189 of the Mental Health Act, which is contained within Chapter 9, headed “Miscellaneous”, restricts disclosure of information in the following terms:

Section 21(1) of the Forensic Provisions Act provides:

Part 5 of the Forensic Provisions Act deals with forensic and correctional patients. The objects of Part 5 are set out in s 40, which provides as follows:

Section 54A of the Forensic Provisions Act, which is also contained in Part 5, provides that a person’s status as a forensic patient may be extended in accordance with Sch 1, which confers power on this Court to make an order for such extension (cl 1).

At the time of the special hearing in December 2011 (as to which see the background facts in my earlier judgment referred to above), s 291 of the Criminal Procedure Act relevantly provided:

The defendant also referred in his submissions to s 101 of the Guardianship Act, which provides:

The defendant seeks an order under the Act on the grounds in s 8(1)(a) and (e). In support of his application, the defendant relies on his facts and matters set out in the following summary.

The defendant became a forensic patient within the meaning of the Forensic Provisions Act as a result of findings made, and a limiting term specified, at a special hearing on 14 June 2012. As referred to above, I extended his status as a forensic patient by an interim extension order made on 19 April 2017 under Sch 1 of the Forensic Provisions Act. A guardianship order, appointing the Public Guardian, was made in respect of the defendant on 16 January 2017.

As a forensic patient, the defendant is subject to the Tribunal’s jurisdiction under Part 5 of the Forensic Provisions Act. He remains a forensic patient until the expiry of any interim or final extension order made in respect of him.

It was submitted on behalf of the defendant that the material concerning his criminal history, condition and treatment is not yet in the public domain but has the potential to be made public because of the present proceedings under Sch 1 of the Forensic Provisions Act. The defendant submitted that this circumstance distinguished his case from cases where non-publication orders were declined because the material the subject of the application was already in the public domain, either because of media coverage and judgments of this Court (State of NSW v Kay [2017] NSWSC 274) or because it had already been canvassed in open court (Matthews v R (No. 2) [2013] NSWCCA 194).

The defendant stressed the confidential nature of proceedings before the Tribunal and the statutory provisions which are designed to protect the privacy of persons who appear before it and in respect of whose treatment and control the Tribunal makes orders. The defendant referred to s 101 of the Guardianship Act, which is set out above.

The defendant also referred to judgments of this Court in AA v State of NSW [2013] NSWSC 1038 (Garling J) and State of NSW v Burns [2014] NSWSC 1014 (Beech-Jones J) in which non-publication orders had been made under the Act in circumstances which the defendant contended were analogous to his own.

The defendant submitted that the effect of a non-publication order would be to continue the existing protections already afforded to the defendant, whereas a refusal to make such an order would “render them obsolete” and “nugatory”. The defendant submitted:

The relevant public interests, which the defendant submitted outweighed the interest in open justice, were said to be the public interest in protecting “people whose vulnerability has been recognised through a variety of legal mechanisms” and “preserving protections already existing in favour of the defendant”. In support of this submission, the defendant referred to ss 68 and 162 of the Mental Health Act and s 101 of the Guardianship Act which are referred to above.

The defendant also submitted that this Court, when deciding whether to make an order under s 7 of the Act, ought be informed by the restrictions imposed by s 162 of the Mental Health Act, which also bound the defendant and prevented him from publishing information about himself. He submitted that, although this Court has exclusive jurisdiction to extend a person’s forensic status after the expiry of a limiting term, the Tribunal had an active role to play in determining whether the person remains in custody; what treatment is appropriate; and other matters relevant to the person’s life and liberty.

The defendant contended that the objects in s 40 of the Forensic Provisions Act and the care principles in s 68 of the Mental Health Act ought be taken into account in deciding whether to make an order under s 7 of the Act.

As I have largely adopted the plaintiff’s submissions in the reasons set out below, I do not propose to summarise them.

Before turning to the grounds relied on by the defendant, I propose to address a preliminary issue: the operation of s 162 of the Mental Health Act. The plaintiff has raised this question on the basis that an order prohibiting the publication of the defendant’s name or identifying information may be redundant if non-publication or anonymisation of such information is already required by s 162 of the Mental Health Act.

For the reasons given in Attorney-General of NSW v Doolan [2015] NSWSC 1773, which concerned an application for an extension order under Sch 1 of the Forensic Provisions Act, I do not consider s 162 to require anonymisation of the defendant’s name since s 162 does not apply to such proceedings. Section 149 expressly confines the provisions in Part 2 of the Mental Health Act to proceedings in the Tribunal. It would, in my view, subvert the statutory language to make s 162 applicable beyond its express scope.

The meaning of the express words is consistent with the context in which s 162 appears in the Mental Health Act. Section 162 does not distinguish between the Tribunal's two civil and forensic divisions, and thus applies to all Tribunal proceedings. Tribunal hearings touch on a broad range of a patient's personal circumstances. The rules of evidence do not apply to either area of the Tribunal's work (s 151(2)). Because there may be a significant focus in Tribunal proceedings on a patient's personal circumstances, it is understandable that Parliament has seen fit, by enacting s 162 of the Mental Health Act, to require anonymisation of the patient's name.

The meaning of “a person” in s 162 is also significant, since s 162, in terms, prohibits a "person" from publishing the name, or identifying information, to which the Tribunal proceedings relate. Section 21 of the Interpretation Act 1987 (NSW) defines the word "person" as including "an individual, a corporation, and a body corporate or politic." In Kizon v Palmer (1997) 72 FCR 409 at 430-431 the Full Federal Court (Lindgren J, Jenkinson and Kiefel JJ agreeing) construed the federal equivalent of s 21 and said:

Of present relevance, the Court also noted, at 430, that

Kizon v Palmer was applied in Osborne v R (2014) 283 FLR 97; [2014] NSWCCA 17, in which the Court of Criminal Appeal was required to construe s 135A of the National Health Act 1953 (Cth) which prohibited a person from "divulging or communicating to any person" certain information about a person's Medicare history. Basten JA (Hidden J and RS Hulme AJ agreeing) said at [8]:

After referring to numerous authorities, including Kizon v Palmer, Basten JA said at [13]:

His Honour also said, at [22], that it was not possible to construe the word ‘person’ to cover a ‘court’ in the ordinary sense of the word, where no such intention is expressed.

A similar approach has been taken in relation to other legislation. For example in Voitenko t/as Access Party Hire v Zurich Australian Insurance Limited [2016] NSWSC 324 Hall J held at [93], by reference to Osborne v R that the word "person" in s 40(1) of the Surveillance Devices Act 2007 (NSW) does not include a court. In Heath (a Pseudonym) v The Queen (2014) 45 VR 154; [2014] VSCA 319 the Victorian Court of Appeal relied on Kizon v Palmer to hold that the reference to a "person" in s 182 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic), which prohibits a person from publishing any evidence given in the Victorian Supreme Court in high risk offender applications, does not include a court: [34]-[41].

Kizon v Palmer was also applied in Sevdalis v Director of Professional Services Review (2016) 241 FCR 266; [2016] FCA 32. The applicant, a medical practitioner, sought review of a decision of the Professional Services Review Committee constituted under the Health Insurance Act 1973 (Cth) that found that he had engaged in inappropriate practice. Section 106ZR of the Health Insurance Act prohibited "a person" from disclosing to another person any deliberations of the committee or any information or evidence given to the committee in the course of its deliberations, with certain exceptions. The Federal Court held, applying Kizon v Palmer, that a "person" did not include a court and that, accordingly, the court could refer in its reasons for decision to the documents that had been before the committee. It also held that there had been no contravention of s 106ZR when the documents were disclosed to the court for the purpose of the judicial review proceedings. I note, however, that the court accepted that the underlying purpose of the prohibition in s 106ZR would be frustrated by the proceedings in the Federal Court if disclosure of the material before the committee was not the subject of a prohibition order (at [13]). To preserve the intended protection given by s 106ZR, it was found to be necessary for the court's reasons to avoid disclosure of any parts of the documents which could identify patients or their medical conditions or personal details of the doctor. Justice Mortimer found that adopting this course would affect neither “the intelligibility of the Court's reasons to the public, or to the parties", nor the outcome of the proceeding.

In summary, s 162 of the Mental Health Act does not apply to proceedings in this Court under Sch 1 of the Forensic Provisions Act as the ordinary meaning of "person" does not include a court. While s 162 of the Mental Health Act does not bind the Court, it continues to apply to any "person" despite proceedings under Sch 1 of the Forensic Provisions Act. Accordingly, the question of non-publication in the context of the present proceedings falls to be considered under the Act.

As referred to above, the defendant relied on the grounds in s 8(1)(a) of the Act (the order is necessary to prevent prejudice to the proper administration of justice) and s 8(1)(e) of the Act (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) in support of his application under s 7 of the Act. The defendant’s submissions relied on the same matters in respect of both grounds. I propose to consider the grounds in turn, although there is some overlap.

The requirement that the order be “necessary” for the stated purpose will not be satisfied merely because the order appears to be “convenient, reasonable or sensible”: Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [31]. In Hogan v Australian Crime Commission, at footnote (29), the High Court expressly approved Fullerton J’s statement to the same effect in the context of the Act which was approved by the Court of Appeal (Hodgson JA, Hislop and Latham JJ concurring) in Attorney-General for New South Wales v Nationwide News Pty Ltd (2007) 73 NSWLR 635; [2007] NSWCCA 307 at [34]. It is plain from the language of a 8(1)(a) that this Court, when considering whether to make an order under s 7 of the Act on that ground, is not engaging in a balancing exercise.

The principal difficulty for the defendant in obtaining an order on the grounds of necessity is that he submitted, in substance, that this Court should extend the statutory regime which applies in the Tribunal to proceedings in this Court under Sch 1 of the Forensic Provisions Act. This submission disregards the express wording of the Mental Health Act, the Forensic Provisions Act and the Act. There is no provision in the Forensic Provisions Act or the Mental Health Act which prohibits or otherwise restricts the publication of the name of, or material relating to, a forensic patient, in respect of whom court proceedings are commenced under Sch 1 of the Forensic Provisions Act. The statutory provisions which restrict publication apply in their terms only to proceedings before the Tribunal.

If Parliament had intended to restrict the disclosure of information relating to forensic patients in proceedings in this Court generally, it would have done so expressly. That Parliament has chosen not to do so leads to the conclusion that this Court’s discretion under the Act is to be applied having regard to the circumstances of the particular application rather than by general implications said to arise from legislative provisions.

It is, in my view, noteworthy that there is little to distinguish the present applicant from others in respect of whom the plaintiff seeks an extension of the person’s status as a forensic patient. The plaintiff became a forensic patient by reason of the imposition of a limiting term: ss 24 and 42 of the Forensic Provisions Act. He is subject to a guardianship order under the Guardianship Act, which is not an uncommon consequence of mental unfitness (which led to the special hearing at the conclusion of which the limiting term was imposed).

Applications for non-publication orders have been refused on the grounds of futility because the information, disclosure of which is sought to be restrained, is already in the public domain. Plainly, an order which will be futile cannot be “necessary”. It does not, however, follow that because the information relating to the defendant’s circumstances will only be made public by reason of proceedings brought by the Attorney General under Sch 1 of the Act, the disclosure of the information ought, on that basis, be prevented or restricted, much less that an order is “necessary” within the meaning of s 8(1)(a) or (e) of the Act. I note that the special hearing, which took place before Payne DCJ in 2012, was held in open court. A non-publication order was made in respect of the names (or presumably any identifying features) of victims, because of their age at the time of the offences and the nature of the offences (to reflect the statutory restrictions on publication in s 578A of the Crimes Act 1900 (NSW) and s 15A of the Child (Criminal Proceedings) Act 1987 (NSW)).

The material before me does not disclose the reason for the non-publication order of the defendant’s name at the special hearing but it can be assumed that one, and possibly the sole, reason for the order to be made in respect of the defendant’s name was to protect the identity of the victims. Although a special hearing is generally conducted in open court, s 291 of the Criminal Procedure Act would have obliged Payne DCJ to close the court for the complainant’s evidence unless an application was made by the defendant under s 291 and her Honour was satisfied of the matters in s 291(3). Although these matters do not have the effect that a non-publication order will be futile, I am not satisfied that it would not be futile, particularly as Tribunal hearings can be open to the public: s 151(3) of the Mental Health Act.

The cases relied on by the defendant do not assist him since they turned on particular features which are not relied on here. In AA v State of NSW, the defendant tendered, in support of his application for a non-publication order under s 7 of the Act, newspaper articles which Garling J described as being “couched in alarmist terms or couched in terms calculated to attract prurient interest and irrational discussion”: [6]. His Honour’s reasons for granting an interim order under s 10 of the Act appear from the following passage:

In State of NSW v Burns, Beech-Jones J gave reasons for the making of a non-publication order in the following terms:

I note that the defendant did not rely on s 8(1)(c) of the Act, which is the ground that “the order is necessary to protect the safety of any person”. Accordingly, the prospect of reprisals (as to which there is no evidence), which was the basis for the order in State of NSW v Burns does not need to be considered in the present case.

I do not consider the defendant to have established any basis on which I could be satisfied that the order is necessary to prevent prejudice to the proper administration of justice.

Unlike the ground in s 8(1)(a), the ground in s 8(1)(e) requires a balancing exercise between the public interest in open justice and the countervailing public interest or interests relied on by the applicant. As referred to above, the defendant has identified two relevant countervailing matters of public interest: first, the protection of vulnerable persons; and, secondly, the preservation of existing protections against disclosure.

The application based on the s 8(1)(e) ground is subject to the same difficulty identified above with respect to the s 8(1)(a) ground. The public interest in the protection of “vulnerable” persons and the rights which accrue to them on that basis, is pre-eminently a matter for Parliament. By making express provision for non-disclosure in circumstances which do not extend to proceedings in this Court, Parliament has, in my view, made its intention clear. In these circumstances, it is not for this Court to make a general adjustment to rights which would apply irrespective of the circumstances of the individual case, on the assumption that Parliament would have achieved that result had it thought of it.

I am not satisfied that it is otherwise necessary in the public interest for the order to be made or that the matters of public interest identified by the defendant significantly outweigh the public interest in open justice. In my view there is a significant public interest in the community knowing, or being able to learn, how this Court manages persons such as the defendant whose limiting term has expired.

I am not satisfied that an order should be made under s 7 of the Act on either of the grounds relied on by the defendant. As the interim order I made under s 10 of the Act, without determining the merits of the application, expired at 5pm on 15 May 2017, it is not necessary to revoke the interim order.