COMMISSIONER SEEKS FOR THE NON-PUBLICATION OF ANY INFORMATION THAT WOULD REVEAL THE IDENTITY OF INDIVIDUALS
BSM1 v Trustees of the Vincentian Fathers [2020] NSWSC 1439 (19 October 2020)
This application involves the Commissioner of Police for the New South wales seeking non-publication of any information that would reveal the identity if two individuals on the ground that it is necessary to protect the psychological safety of the individuals.
Facts:
This is an application made by Notice of Motion filed by the Commissioner of Police for New South Wales. The Commissioner seeks an order for the non-publication of any information or evidence that would reveal the identity of two individuals named in documents to be produced in answer to a Subpoena to Produce Documents by this Court at the request of the defendant in the proceedings.
The non-publication order is sought pursuant to s.7 of the Court Suppression and Non-publication Orders Act 2010, and in accordance with the grounds set out in ss 8(1)(a), (c), (d) and (e) of the Act. However, in oral submissions, the Commissioner did not rely on all of these grounds, but only raised the grounds found in ss 8(1) (c) and (d) in seeking to persuade the Court to make the orders sought.
The evidence before the Court upon which the Commission relies was that, in broad terms, the publication of any information identifying the two individuals would be likely to cause undue distress or embarrassment, that any identification would contradict assurances made to the individuals by police officers that their identities would remain protected if they provided a statement, and that the mental health and safety of the individuals may be at risk through publication.
Issue:
Should the court grant the motion of the Commissioner for the non-publication of information that would reveal the identities of the individuals named in the document?
Law:
- S8(c)(1) of the Court Suppression and Non-Publication Orders Act of 2010
Analysis:
The primary ground upon which the Commissioner relied in oral submissions was s 8(1) (c). The submission of the Commissioner is that the orders are necessary to protect the psychological safety of the two individuals. No psychologist or psychiatrist reports were tendered in evidence to support this contention, rather, the submission was based on global observations by the Mr Grassick of possible psychological harm which some, but not all, complainants and some, but not all, witnesses can develop, by being involved with police investigations and subsequent court proceedings.
Without expert evidence as to potential psychological harm, or any specific detail as to what is within the documents to be produced on subpoena and why any potential psychological trauma may arise out of identification, the court is unable to find that the making of non‑publication orders is “necessary”.
Conclusion: Notice of Motion by the Commissioner of Police is hereby dismissed
