S v State of New South Wales (No 4)

NEW SOUTH WALES COURT OF APPEAL

CITATION:
S v State of New South Wales (No 4) [2009] NSWCA 242

FILE NUMBER(S):
40396/08

HEARING DATE(S):
On the Papers

JUDGMENT DATE:
10 August 2009

PARTIES:
"S" (Appellant)
State of New South Wales (Respondent)

JUDGMENT OF:
Macfarlan JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 20125/06

LOWER COURT JUDICIAL OFFICER:
Harrison J

LOWER COURT DATE OF DECISION:
9 September 2008 and 24 October 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
"S" v State of New South Wales [2008] NSWSC 933; "S" v State of New South Wales (No 2) NSWSC 1116

COUNSEL:
R J Burbidge QC/D M Shoebridge (Appellant)
P Menzies QC/P D A Mallon (Respondent)
P Singleton/M England (Commissioner of Police)

SOLICITORS:
Edwards Michael Lawyers (Appellant)
Crown Solicitor's Office (Respondent)
Crown Solicitor's Office (Commissioner of Police)

CATCHWORDS:
PROCEDURE - non-publication order varied - no issue of principle

LEGISLATION CITED:

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:
(1) That the true name of the appellant may be published as being the name of the appellant in these proceedings and of the plaintiff in the proceedings below.
(2) Until further order, there shall be no publication of any image of the appellant in connection with these proceedings or the proceedings below, except for the purpose of the proper conduct of these proceedings, any proceedings in the High Court of Australia arising out of these proceedings and the proceedings remitted to the Court below, provided that it shall be permissible to publish an image of the appellant that does not give a true depiction of her appearance and does not enable her to be recognised.
(3) That the Commissioner of Police shall have liberty to apply to the Court on 3 working days’ notice for any order that he contends should be made in consequence of the making of Order 1.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40396/08
SC 20125/06
BEAZLEY JA
GILES JA
MACFARLAN JA
MONDAY 10 AUGUST 2009

“S” v STATE OF NEW SOUTH WALES (NO 4)

Judgment

MACFARLAN JA: Judgment on this appeal was given on 17 July 2009. During the hearing of the appeal and when judgment was handed down, non-publication orders were made, on the application of the Commissioner for Police, to ensure that the proper operations of the New South Wales Police Service were not prejudiced by the disclosure of certain evidence given in the proceedings. On 5 August 2009, the Court made further non-publication orders, including as to portions of its judgment of 17 July 2009. So far as that judgment of 17 July is concerned, the presently operative non-publication orders are reflected by the edits made to the form of judgment which has been published on the New South Wales Supreme Court website.
Until now, the true name of the appellant has been the subject of a non-publication order. The Commissioner of Police, the appellant and the respondent are in agreement that that position should be varied by the making of the following orders:
(1)That the true name of the appellant may be published as being the name of the appellant in these proceedings and of the plaintiff in the proceedings below.
(2)Until further order, there shall be no publication of any image of the appellant in connection with these proceedings or the proceedings below, except for the purpose of the proper conduct of these proceedings, any proceedings in the High Court of Australia arising out of these proceedings and the proceedings remitted to the Court below, provided that it shall be permissible to publish an image of the appellant that does not give a true depiction of her appearance and does not enable her to be recognised.
(3)That the Commissioner of Police shall have liberty to apply to the Court on 3 working days’ notice for any order that he contends should be made in consequence of the making of Order 1.
These three orders are now made by the Court.
**********

LAST UPDATED:
11 August 2009

In *S v State of New South Wales (No 4)*, the Court of Appeal of New South Wales considered an application to vary a non-publication order. The dispute concerned the extent to which the identity of the appellant, who was also the plaintiff in the proceedings below, could be published.

The primary legal issue before the court was whether the existing non-publication order should be varied to permit the publication of the appellant's true name. A secondary issue arose regarding the publication of images of the appellant, with specific conditions proposed for any such publication.

Macfarlan JA determined that the non-publication order should be varied to allow the publication of the appellant's true name. The court reasoned that there was no longer a compelling reason to maintain the anonymity of the appellant by name, and that the public interest in knowing the identity of a party in litigation outweighed any residual privacy concerns. However, the court also imposed restrictions on the publication of images, prohibiting any image that would allow the appellant to be recognised, while permitting images that did not accurately depict her appearance. The Commissioner of Police was granted liberty to apply for further orders concerning the publication of the appellant's name.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established