Kay’s solicitor told Justice Sarah McNaughton the rapist was “depressed” and “living like a hermit” because the Herald was challenging a suppression order that had protected his name since 2020.
“People fall off track and get back on track, and it could take decades for them to rehabilitate,” his solicitor, Jordan Portokalli, told the court in July.
“Rapist dog” had been scrawled on Kay’s car, and neighbours had left notes saying “the north shore rapist lives in apartment X” the last time he resurfaced in the press.
“When people find out about [Kay’s] past, particularly the sexual offences, this type of vigilantism clearly occurs,” Portokalli said.
Kay complained to the court that the attack on his car made him feel “intimidated, targeted, threatened and unsafe”.
He also complained he lived in fear of being recognised while out in public.
“I exchange greetings with some of my neighbours in my apartment building, and I have formed some work friendships,” Kay said in a court document.
“To my knowledge, none of these people know about my past. If they found out, I doubt they would want to speak to me, and I believe that I would definitely lose [my] job, as I have done previously.”
The Herald’s barrister, Matthew Lewis, and executive counsel Larina Alick said Kay’s fears were unsupported and not enough to justify keeping his name secret, and he had never been attacked in public.
“His photograph has been published since 1997,” Lewis said, calling the suppression “futile”.
The public, Lewis said in a document, should be armed with “sufficient information about a notorious high-risk sex offender to better protect themselves”.
A survivor of Kay’s attacks had urged the court to “expose [Kay] for his crimes”, in part because he had “continued to exhibit predatory behaviours” since his release from prison.
Justice McNaughton on Tuesday sided with the Herald and revoked the suppression order.
“[Kay’s] offending has occurred, in all cases, in public, and in almost all cases after the defendant has followed a woman for a period of time,” McNaughton said in her judgment.
“It could be seen that it may well be in the public interest for members of the public [especially females] to know about the defendant’s past crimes and [the state’s] third ESO application to assist in protecting themselves, or to immediately report concerning behaviour before it escalates to something more serious.”
The judge also found Kay’s claims of self-harm or attacks from others had not been supported by the evidence.
“The evidence rises no further than to indicate that there have, in the past, been some unpleasant online threats, and damage to his vehicle, with the word ‘RAPIST’ marked on it,” she wrote.
Repeat offending revealed
The removal of the suppression order allows Kay’s full crimes and missteps by the authorities supervising him to be revealed.
Since his parole in 2015, the state of NSW has taken out a series of ESOs designed to keep a close eye on Kay.
Beginning in 2017, the ESOs forced electronic monitoring bracelets and a schedule of approved movements on Kay. The rapist asked for his name to be suppressed, but this was opposed by the media and the court refused that year.
An electronic tracking tag was removed in 2018, and just weeks later, Kay grabbed and kissed a teenage girl in Woolworths.
‘His departure from his schedule of movements would have been obvious to those monitoring him electronically.’
A NSW judge after Kay attacked a woman in Sydney
The girl recoiled, disgusted and afraid because she knew from media reports that the elderly man who assaulted her was a serial rapist.
Authorities then discovered Kay had been hiring a sex worker and bringing her alone to his home, in breach of his ESO. He spent four months in prison and was released.
A second ESO was slapped on Kay in 2020 – but it came with two crucial changes.
First, the state of NSW watered it down. Authorities would no longer force Kay to provide a schedule of his movements to supervisors.
Kay would be monitored but could go where he pleased.
Second, Justice Stephen Rothman suppressed Kay’s name after concluding negative press was preventing him from reintegrating into society.
‘She was traumatised’
In July this year, Kay complained to Justice McNaughton, through his lawyers, that “my crimes from 20 years ago are being brought up again”.
“And two years ago,” McNaughton replied.
The judge was referencing Kay’s most serious attack since his release from prison – he had stalked a young woman through Sydney’s CBD for two hours in January 2022.
Kay then followed her home into her apartment building and indecently assaulted her as she screamed.
The crime was briefly reported in the media, but crucial details remained secret because of the 2020 suppression order.
The public could not be told that the state of NSW had not required Kay to follow a schedule of movements since 2020, so he was able to go where he pleased without setting off alarms.
That schedule could have been a “significant restraint” upon Kay as he stalked the woman around the CBD.
“His departure from his schedule of movements would have been obvious to those monitoring him electronically,” Justice Stephen Campbell said during one of the ESO hearings earlier this year.
“More generally, electronic monitoring and scheduling are complementary; each is more protective of the community when the other is also in force.”
Further, the suppression order meant the public could not be told Kay was already back in the community, having been out of custody since September 2023.
He was not put back on a movement schedule until July 2024.
State of NSW backflips on schedule
In April this year, the state of NSW applied for a third ESO against Kay. This time, they asked for both the ankle monitor and a reintroduction of the schedule of movements.
The state has not admitted that allowing Kay to move free of a schedule was a mistake, but it appears the state no longer believes he can be trusted to move freely.
Kay tried to keep his name out of the courts yet again, but he lost after the Herald’s intervention.
McNaughton published her reasons for unmasking Kay on Tuesday.
Support is available from the National Sexual Assault, Domestic Family Violence Counselling Service at 1800RESPECT (1800 737 732).
