R v Simmons (No 5) (Non-Publication Orders)

According to Wikipedia, “Mr Big” is a police procedure and investigative technique first developed by the Royal Canadian Mounted Police in British Columbia in the early 1990’s for the purpose of investigating cold case homicides: http://en.wikipedia.org/wiki/Mr._Big_%28police_procedure%29. It is also referred to as “the Canadian technique” and the “scenario technique”.

Various police forces around Australia have used the technique: L Struesser, “Mr Big comes to Australia”, Bond University Publications, [2008] The National Legal Eagle 14(1).

The technique was used in June 2002 by Victoria Police to entrap a man (Shane Hill) into a confession to murder. Victorian Police also used it in 3 other cases in the early 2000’s. Those four Victorian cases were subject to an appeal to the High Court: Tofilau v The Queen [2007] HCA 39; 231 CLR 396.

There are other examples of the use of the technique. For example the technique was deployed successfully in a case called R v Cowan [2013] QSC 337. That case, involving the abduction and murder of a little boy, attracted extensive publicity in the print and electronic media.

In New South Wales a variation of the technique was successfully used in Donai v R [2011] NSWCCA 9 and R v Abrahams [2013] NSWSC 952.

The technique was also employed between September 2012 and January 2013 in the investigation into the disappearance of Andrew Russell. Mr Russell was a resident of Bathurst who was, on the prosecution case, last seen alive on 2 June 2009. The case was initially treated as a missing persons investigation. By 2012 it was treated as a cold case homicide. Investigators targeted the accused man (Tony Simmons) by employing the “Canadian” or “Mr Big” style of covert investigation. Admissions were made in the course of that investigation and I have made a ruling in the trial that those admissions are admissible against Mr Simmons: R v Simmons; R v Moore (No 2) [2015] NSWSC 143. Mr Simmons is now on trial for the murder of Mr Russell.

The NSW Commissioner of Police (“the Commissioner”) seeks non-publication orders in relation to the investigative technique used in this case as well as suppression, non-publication and pseudonym orders to protect the identities of the undercover officers who carried out the covert investigation. The orders are sought pursuant to the Law Enforcement & National Security (Assumed Identities) Act 2010 (NSW) (“LENS Act”) and the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“Suppression Act”).

The application was brought by notice of motion dated 16 February 2015 which was the first day of the trial of Mr Simmons and his (then) co-accused Mr Moore. There were a series of pre-trial applications and the trial itself (which is being conducted by judge alone) commenced on 25 March 2015 and is continuing.

Neither the Crown nor the defence in the trial have taken any position in relation to the application by the Commissioner of Police although Mr Young of Senior Counsel did share some helpful observations and insights into its merit. No media organisation or other interested party has played a role and so the application has to be considered in the absence of a “contradictor”.

On 16 February 2015 the Commissioner, ably represented by Mr Bhalla instructed by the NSW Crown Solicitor, read an open affidavit, a confidential affidavit and number of confidential exhibits. Written submissions were made in support of the 24 specific orders sought by the notice of motion. On 16 February 2015, I granted leave to file the notice of motion in Court and ordered that the motion be returnable immediately. I made orders that 11 witnesses nominated in the notice of motion be referred to by their assumed names in the course of the hearing of the notice of motion. Having considered the evidence and submissions, I made the following orders:

See R v Simmons; R v Moore [2015] NSWSC 73 at [6].

The purpose of those orders, made pursuant to the LENS Act and the Court Suppression Act, was to protect the identity and safety of the witnesses. My reasons are disclosed in the brief ex tempore judgment published on 16 February 2015.

At that stage, I did not resolve the question of the Commissioner’s application for non-publication orders in relation to the methodology and details of the investigation. Rather, as a practical solution, I ordered that there be no publication of any of the evidence led or submissions made on the voir dire until the end of the trial or until further order. It was anticipated that the trial would be by jury and the purpose of the order was to protect the integrity of that process although it also had the effect of protecting the interests of the Commissioner.

I have since handed down three judgments in the trial: R v Simmons; R v Moore (No 2) [2015] NSWSC 143, R v Simmons; R v Moore (No 3) [2015] NSWSC 189; R v Simmons; R v Moore (No 4) [2015] NSWSC 259. To protect the Commissioner’s position, I ordered that there be no publication of those judgments until the end of the trial or until further order. Once an order was made for a trial by judge alone in R v Simmons (No 4), the parties in the trial proceedings agreed that there was no need for the non-publication orders over the judgments and evidence adduced on the voir dire to continue. Accordingly, the Commissioner’s legal representatives were notified and invited to make submissions in relation to the matter.

Further submissions and evidence were received on Friday 20 March and Tuesday 24 March 2015. A further confidential affidavit was read. The Commissioner indicated that there was no application for any restriction on the publication of the judgment known as R v Simmons (No 3). I received a copy of the judgments know as R v Simmons (No 2) and R v Simmons (No 4) with certain passages highlighted in yellow. These indicated the passages that the Commissioner sought to be redacted if the judgment was to be published on legal web-sites or otherwise. The Commissioner pressed for an order that there be no publication in relation to undercover police operation and sought the opportunity to provide further evidence. I indicated that I would redact or modify the judgments so that the assumed names of the undercover police officers were anonymised and make redactions in relation to some quite specific details of the investigation that were referred to in the judgment.

On 24 March 2015 I made interim orders pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) in the following terms (T 504):

The non-publications orders with respect to the judgments have been varied on four occasions, once on the application of the Director of Public Prosecutions, twice on the application of barristers in chambers at the Public Defenders’ Office and once on the application of the Crown Solicitor’s Office. Those variations were made to enable the parties in four different cases to have access to the judgment for use in the proceedings.

On Friday 27 March 2015 the Commissioner read a further confidential affidavit. Exhibited to that affidavit were three confidential exhibits. This included copies of the judgments in Simmons (No 2) and Simmons (No 4) highlighted in yellow. The highlighted indicated those portions of the judgment that the Commissioner sought to be redacted from any version published on legal websites such as Caselaw NSW, Judicial Information Research System (JIRS), Jade Barnet, Butterworths unreported cases and the like. This was in the same form as the highlighted judgments with which I had previously been provided.

In the course of the argument I raised the possible use of the restricted judgment section of JIRS. After taking instructions, Mr Bhalla indicated that there would be no submission against an exception for publication in that place. However, the Commissioner maintained his opposition to the judgment being published on legal web-sites other than in the redacted form.

It is unnecessary, and perhaps undesirable, to set out in detail the material contained in the confidential affidavits. In short, the Commissioner’s position is that the technique is a matter that should remain confidential in the public interests. To allow publication of the nature and specific application of the technique would be to disclose operational secrets and methodology of the New South Wales Police Force.

At first blush, this is a surprising submission in view of the extensive publicity surrounding some of the cases in which the technique has been employed over the last 10 to 15 years. Indeed in Tofilau v The Queen, Gleeson CJ said at [5]:

In view of the successful use of the technique in a number of cases that are reported on court and legal websites around Australia, it seems that the Chief Justice’s observations were devoid of his Honour’s usual prescience. Given the number of cases where the technique has been successfully deployed, it appears that the readership of the Commonwealth Law Reports does not extend to a number of people suspected of having been involved in cold case homicides.

The starting point in considering an application seeking orders such as the closure of the Court to the public and suppression or non-publication of evidence, arguments and judgments, is the requirement for the courts to be open and accessible to the public and to the media: see JJ Spigelman, “Seen to be Done: The Principle of Open Justice – Part 1”, 74 ALJ 290 at 292-295. The principle of open justice is recognised under the International Covenant on Civil and Political Rights. Article 14 relevantly provides:

It also finds expression in s 6 of the Court Suppression Act:

In Commissioner of Police v Nationwide News [2007] NSWCA 366; 70 NSWLR 643 Basten JA explained:

However, his Honour went on to point out:

In recognition of the importance of open justice, the common law developed a strict test for when a party applied for closure of a court or for suppression or non-publication of evidence. That was a test of “necessity”. In Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 Hunt J said:

The test of necessity is also at the centre of each of the grounds upon which the powers under the Court Suppression Act may be exercised. Section 8 provides:

In the present case, the Commissioner relies on paragraphs (a), (c) and (e). The ground upon which I made the orders at the outset of the trial was that the order was necessary to protect the safety of the undercover officers. The orders were also based on the provisions of the LENS Act.

The Court Suppression Act distinguishes between “suppression” orders and “non-publication” orders. Those terms are defined in s 3:

The Commissioner does not seek a suppression order in relation to the judgments known as R v Simmons (No 2) and R v Simmons (No 4) or the evidence concerning the police operation. The order sought under the notice of motion is in the following terms:

The Commissioner asks that the order apply throughout the Commonwealth of Australia and until further order of the Court: see ss 11-12 Court Suppression Act.

The Commissioner accepts that there might be an exception to the non-publication order to permit publication of the judgment as a restricted judgment by JIRS and more general publication of a redacted version of the judgment. The version that would be published as a JIRS restricted judgment is a slightly modified version of the judgment as originally published in that it anonymises the undercover officers and redacts the use of some code words that are central to the technique. The version that would be published on other legal web-sites is heavily redacted.

In Commissioner of Police v Nationwide News Basten JA explained at [85] that an application of this kind “involves the application of ill-defined and imprecise conflicting principles, on the basis of speculation as to future consequences”. However, as I have said, Basten JA went on to explain that the underlying principle of transparency has its limits. Ultimately, an evaluative judgment must be made.

The meaning of “necessary” (as it is used in the Court Suppression Act) was considered in Fairfax Digital v Ibrahim [2012] NSWCCA 125. Bathurst CJ said at [8]:

Basten JA at [45] said:

The material before me shows that [REDACTED]. The material gives rise to an inference that [REDACTED].

In assessing the question of whether orders in the nature of suppression or non-publication are necessary, one has to take into account not only the risk that an investigation will fail or be suspended if a suspect becomes aware that the people with whom he is dealing are undercover police officers. A more urgent concern is the safety of those police officers. It is not difficult to imagine a situation where a person suspected of having committed a homicide and whose desire is to become a member of a criminal organisation, might respond in an extreme and violent way to the suspicion or knowledge that the person they are dealing with is a police officer investigating them for a crime carrying life imprisonment.

For those reasons, I have decided to make orders under the provisions of the Court Suppression and Non-Publication Orders Act 2010 (NSW). The grounds upon which I consider the orders should be made are set out in s 8(1)(a), (c) and (e):

Having reached that conclusion, it is necessary to consider the content of those orders. Since the publication of the judgments in relation to which this application is largely directed, I have received no less than 4 requests from lawyers seeking to use the judgments in other cases. The Commissioner did not object to exceptions being made in those cases and to orders excluding those lawyers and their opponents were made. There is a significant difference between making orders stopping the mass media publication of the technique and the suppression, non-publication or redaction of a judge’s reasons for decision. The nature of the orders available under the Court Suppression and Non-Publication Orders Act are flexible and allow for “such exceptions and conditions as the court thinks fit and specifies in the order”: s 9(4).

Having read the judgments in the form urged by the Commissioner, I reached the opinion that the rationale of the decisions is difficult to comprehend in the absence of the factual material upon which it is based. By way of example, if Simmons (No 4) was being used in support of a similar application, the lack of detail concerning the nature and extent of the prejudicial material involved in this case would make the reasons for decision very difficult to understand, let alone to apply. This might be contrasted with the situation in D1 v P1 (No 2) [2012] NSWCA 440 where Bathurst CJ was satisfied that the critical matters of principle remained intelligible after significant redaction (see [7]).

I struggled with the Commissioner’s submission that restriction on publication on legal web-sites is “necessary”. As has been observed directly and implicitly throughout this judgment, the nature of the technique employed in this case has been published on Australian legal web-sites and in law reports and journals on a number of occasions. It has been subject to mass media attention and has its own Wikipedia entry. The problems that arose following [REDACTED] had to do with publication in the print and electronic media. There is nothing to suggest that the problems were caused by the publication on the [REDACTED], Austlii or other legal websites. As interesting as some may consider them to be, the law reports and legal websites are not commonly read by members of the criminal milieu. This is shown by the events that have transpired following the High Court’s decision in Tofilou v The Queen.

However, I was ultimately persuaded by a number of Mr Bhalla’s submissions. I accept that the detail provided in the R v Simmons (No 2) is unusual and that the specific scenarios described in the judgment [REDACTED]. I accept that the capacity of technology today is far advanced and that the advent of smart ‘phones and other devices increase the capacity of material being re-published broadly and quickly. While I do not share Mr Bhalla’s concern that the judgments may “go viral”, I accept the premise behind that submission. Fashioning orders to prevent “links” between web-sites and public and private users is difficult, if not impossible. He made a good point concerning “push” notifications and the possibility of publication on overseas legal blogs, Facebook and the Twitter. I accept from Mr Bhalla that two other Judges of this Court have suppressed (or restricted publication) of similar material and that the use of the technique in this state, or at least the detail of that use, has not previously been published, in such detail.

Finally, I accept that the limited publication as a JIRS restricted judgment means that the judgment will be available to practitioners and judicial officers for the use in legal proceedings. The redacted version published on other legal web-sites will carry a notation that the fuller version is available through JIRS.

To ensure that the orders for closure of the court and the suppression and non-publication orders are readily comprehensible and located in one place, I will revoke and re-state my earlier orders and make the final orders to which this judgment relates. The orders are these: