A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym)

[2020] NSWSC 1713

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym) [2020] NSWSC 1713

Hearing dates:

5, 10 November 2020

Date of orders:

2 December 2020

Decision date:

02 December 2020

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) In Proceedings 2020/294356, the amended summons filed in Court on 14 October 2020 is dismissed subject to:

(a) the interim orders I made on 14 October 2020, in relation to these Supreme Court proceedings and the criminal proceedings involving the Plaintiff, are extended until 9 December 2020 or further order of the Court.

(2) In Proceedings 2020/297599, the summons filed on 16 October 2020 is dismissed.

(3) I make an order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting the publication of any information tending to reveal the identity of the Second, Third and Fourth Defendants in Proceedings 2020/297599 in connection with these Supreme Court proceedings.

Catchwords:

CRIMINAL PROCEDURE — Suppression and non-publication orders — Appeals pursuant to s 14 of the Court Suppression and Non-publication Orders Act 2010 (NSW) heard together — Leave to appeal — Grounds — Safety ground under s 8(1)(c) — Whether orders necessary to protect the safety of any person — Calculus of risk approach —— Meaning of "any person" — Meaning of "necessary" — Meaning of "safety" — Risk of self-harm arising from aggravation of pre-existing psychiatric illnesses due to media reporting — Relevance of alternative actions that might be taken in response to risk — Relevance of fairness and accuracy in media reporting

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 9, 13, 14

Crimes Act 1900 (NSW), ss 61J, 578A

Cases Cited:

AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46

D1 v P1 [2012] NSWCA 314

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125

Hamzy v R [2013] NSWCCA 156

Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4

John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465

John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) 61 NSWLR 344; [2004] NSWCA 324

Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10

Liu v Fairfax Media Publications Ltd [2018] NSWCCA 159

R v AB (No 1) (2018) 97 NSWLR 1015; [2018] NSWCCA 113

Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Category:

Principal judgment

Parties:

Proceedings 2020/294356
A Lawyer (a pseudonym) (Plaintiff)
Director of Public Prosecutions NSW (Defendant)
Nationwide News Pty Limited (First Intervener)
Fairfax Media Publications Pty Ltd (Second Intervener)

Proceedings 2020/297599
Nationwide News Pty Limited (First Plaintiff)
Fairfax Media Publications Pty Ltd (Second Plaintiff)
A Lawyer (a pseudonym) (First Defendant)
A law firm (a pseudonym) (Second Defendant)
DA (a pseudonym) (Third Defendant)
JC (a pseudonym) (Fourth Defendant)
Director of Public Prosecutions NSW (Fifth Defendant)

Representation:

Counsel:
Proceedings 2020/294356
L Fernandez (Plaintiff)
D Kell SC with E Jones (Defendant)
M Lewis (Interveners)

Proceedings 2020/297599
M Lewis (Plaintiffs)
D Marr (Second, Third and Fourth Defendant)
D Kell SC with E Jones (Fifth Defendant)

Solicitors:
Proceedings 2020/294356
Gregory Goold Solicitors (Plaintiff)
Office of the Director of Public Prosecutions NSW (Defendant)
First Intervener (self-represented)
Second Intervener (self-represented)

Proceedings 2020/297599
First Plaintiff (self-represented)
Second Plaintiff (self-represented)
Second, Third and Fourth Defendants (self-represented)
Office of the Director of Public Prosecutions NSW (Fifth Defendant)

File Number(s):

2020/294356; 2020/297599

Publication restriction:

Pursuant to orders of Magistrate Keady on 9 October 2020, [166] of this judgment and further orders of the Court on 17 December 2020, there is to be no publication of any information tending to reveal the identity of the Second, Third and Fourth Defendants in Proceedings 2020/297599, in connection with these Supreme Court proceedings and the criminal proceedings being prosecuted against the Plaintiff in Proceedings 2020/294356 (the First Defendant in Proceedings 2020/297599), until the conclusion of those criminal proceedings.

Pursuant to orders of the Court made on 17 December 2020, there is to be no publication of any medical evidence filed or given by or in respect of each of the mother of the Plaintiff in Proceedings 2020/294356 (the First Defendant in Proceedings 2020/297599) and the Third Defendant in Proceedings 2020/297599, or information about that medical evidence.

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

09 October 2020

Before:

Keady LCM

File Number(s):

2020/00166400

Judgment

1. By amended summons filed in Court on 14 October 2020, the plaintiff in Proceedings 2020/294356 (“the appellant”) seeks leave to appeal from the decision of Magistrate Keady of the Local Court in declining to make orders protecting the appellant’s identity under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”) in respect of criminal proceedings being pursued against him. Pursuant to interim orders I made on 14 October 2020 extending temporary orders made by the learned Magistrate, the appellant is identified only by means of the pseudonym “A Lawyer” pending the determination of this appeal.

2. By summons filed on 16 October 2020, in Proceedings 2020/297599, Nationwide News Pty Limited and Fairfax Media Publications Pty Ltd (“the media parties”) seek leave to appeal against the decision of Magistrate Keady in making an order prohibiting the publication of information tending to reveal the identity of persons whom I will identify as “DA” and “JC” (and the name of a law firm) in connection with the criminal proceedings being prosecuted against the appellant.

3. Under s 9(2)(d) of the Act, a news media organisation is entitled to appear and be heard by the Court in such appeals.

4. The appeals were heard together (I will refer to them together as the “Supreme Court proceedings”). Mr Fernandez appeared for the appellant, Mr Kell SC with Ms Jones appeared for the Director of Public Prosecutions NSW, Mr Lewis appeared for the media parties and Mr Marr appeared for DA, JC and the law firm.

5. To the extent that the issues overlap, I will consider the appeals jointly but otherwise deal with each appeal separately.

Background

6. On 4 June 2020, the appellant was charged with an offence under s 61J(1) of the Crimes Act 1900 (NSW). It is alleged that on 19 December 2019, he committed an aggravated sexual assault at his place of work, being the law firm the subject of the non-publication order. He was an employed solicitor working in the law firm, practising mainly in criminal law.

7. The circumstances of aggravation are alleged to be the reckless infliction of actual bodily harm.

8. DA and JC are the partners/principals of the law firm in question.

9. At this stage, the criminal proceedings remain in the Local Court at the committal stage.

10. On 9 October 2020, Magistrate Keady made an order under s 7 prohibiting publication of any information tending to reveal the identity of DA and JC and the name of their law firm in connection with the criminal proceedings but dismissed the appellant’s application for a suppression or non-publication order in the proceedings in respect of his identity.

The nature of the appeals

11. As set out in s 14(5) of the Act, an appeal is to be by way of a rehearing and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the lower court decision may be given on the appeal.

12. In Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim,[1] Bathurst CJ held that an appeal under s 14 of the Act is a hearing de novo. It thus falls within the second category of appeal referred to in Lacey v Attorney-General (Qld). [2] The Court hears the matter afresh and may hear it on fresh material and may overturn the decision appealed from regardless of error.

    1. (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [6] (Whealy JA agreeing).

    2. (2011) 242 CLR 573; [2011] HCA 10 at [57].

13. In Ibrahim at [23]–[24], Basten JA expressed some concern about the consequences of the appeal under s 14 of the Act being a hearing de novo but observed that problems which could arise can be controlled by the imposition of conditions on leave to appeal. Bathurst CJ acknowledged Basten JA’s observations and added:

“[7] … Although the question of leave will depend upon each particular case, it is likely that in cases involving a reconsideration of an order on fresh or different evidence leave will commonly be refused and the appellant left to exercise his or her right of review.”

14. The right of review is a reference to s 13 of the Act. The court that made an order may review the order on the court’s own initiative or on the application of a person who is entitled to apply for the review.

15. Neither the appellant nor the media parties have sought review. This is an appeal pursuant to s 14(5) of the Act. It is thus a hearing de novo, which is subject to the need to obtain leave to appeal.

16. The appellant does not identify error in the decision of the learned Magistrate but rather seeks leave on a number of grounds, including that the appeal has merit and that it would be in the interests of justice that leave be granted.

17. The media parties seek leave on a number of grounds, primarily being that the Magistrate erred in a number of respects.

18. The applications were pursued before the Magistrate on a number of differing grounds but, in this Court, both the appellant and JC and DA rely only on s 8(1)(c) of the Act as a basis for any non-publication orders. It is conveniently described as “the safety ground”.

19. Section 8 of the Act sets out the grounds for making an order as follows:

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds -

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 Part 3 of the Crimes Act 1900),

(e) 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.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

(3) Despite subsection (1)(d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

The appellant’s appeal

20. The appellant relies on the evidence before the learned Magistrate, as well as fresh evidence, including new medical evidence and further affidavits, including:

1. an affidavit of the appellant dated 13 October 2020;

2. an affidavit of the appellant’s mother dated 13 October 2020; and

3. an affidavit of the solicitor for the appellant, Julie Nguyen, dated 27 October 2020.

21. The sole ground on which the appellant relies is that the order is necessary to protect the safety of a person. “The person” is not the appellant. It is his mother.

22. In his first affidavit dated 9 September 2020, the appellant expresses considerable concern about his ability to continue to perform his work in the criminal law field if his identity is published (that is, if he is named as the person the subject of the charges), particularly having regard to what he perceives as the likely response and attitude of members of the profession and the judiciary, as well as how the charges against him will impact upon his clients and potential clients.

23. He also provides details as to his relationship with the law firm and DA and JC and other solicitors in the practice, as well as his expectation that any publicity about the charges against him will have a serious detrimental effect on the law firm and other persons working in the law firm.

24. Whilst this material was relied upon in the Court below, it can only be background material on this hearing, having regard to the limited ground on which the appellant maintains a right to the non-publication order.

25. The appellant also details his relationship and association with the complainant. I understand that that evidence was said to be relevant to the submission made in the Court below that a non-publication order would be necessary to ensure compliance with s 578A of the Crimes Act.

26. The proposition that identification of the appellant may lead to non-compliance with s 578A(2) was not pressed in this Court. It is not necessary to consider it further except to say that s 578A of the Crimes Act continues to apply independently of any order that might be made under s 7 of the Act.

27. It is the appellant’s affidavit of 13 October 2020 (prepared for the purposes of these proceedings) that is directly relevant, as the appellant deposes to his understanding and belief as to his mother’s history of trauma and possible response to publicity about him.

28. The appellant submits that “any person” when used in s 8(1)(c) of the Act extends not just to the accused and witnesses but other persons such as his mother. He submits further that the reference to the safety of any person includes psychological safety.

29. He submits that, having regard to the expert medical evidence and other lay evidence, his mother will have a further exacerbation of [redacted].

30. In those circumstances, it is said that the order is necessary to protect her safety.

31. The media parties have a right to be heard. They and the Crown oppose any non-publication orders, although the Crown submits that its role is more to assist the Court.

32. They say that leave to appeal should not be granted as the appellant has not demonstrated any error on the part of the Magistrate and, in any event, the fact that the appellant is now pursuing a substantially different argument tends to militate against the granting of leave. [3]

    3. D1 v P1 [2012] NSWCA 314 at [44] (Bathurst CJ, McColl JA and McClellan CJ at CL agreeing); Ibrahim at [7].

33. Further, the media parties say:

1. Much of the appellant’s mother’s mental health problems are unconnected and would be unconnected with any reporting of her son’s identity in relation to the charges.

2. The evidence does not rise to the level that would warrant the Court making such orders, that is, the circumstances are not sufficiently exceptional. The risk to the safety of the appellant’s mother would not be at such a level that it would warrant the making of an order.

3. There are other ways in which the appellant’s mother might mitigate against the risk of an aggravation of her mental condition, such as by obtaining appropriate treatment.

4. The order is not necessary as I could not be satisfied that it would be effective to achieve that which the appellant seeks, being preventing his mother finding out about the nature and details of the charges and the resultant exacerbation of her mental health condition.

The media parties’ appeal

34. DA was the employer of the appellant. He is a principal of the law firm.

35. He says that a non-publication order is necessary to protect his safety. There is no dispute that he is a person who could be the subject of an order under s 7 of the Act. An order was made in his favour in the Local Court.

36. The central point made by both the Crown and the media parties is that I would not be satisfied that any orders are necessary for the safety of DA.

37. They submit that, on the calculus of risk approach that I must take, the risk to the safety of DA is not of such gravity and likelihood that, without the order sought, the risk to his safety would be above the level that might be regarded as acceptable.

38. Although they do not seek to challenge the severity or significance of DA’s psychological state, they point to other means of protecting his safety, such as proper treatment and medication.

39. Further, they say that there is a real doubt as to whether any orders would be effective to protect DA’s safety.

40. The media parties emphasise the importance of open justice and the coherence of the law. They say that the Court should not determine the matter on the basis that the reporting will not be fair and accurate and dispute any suggestion that the limited reporting to date has not been fair and accurate.

41. The central point emphasised on behalf of DA in opposition to the appeal is that the medical evidence is so strong and the consequences for DA of any publicity so severe (in terms of his mental health) that an order is necessary to protect his safety.

42. He submits that absent such orders as were made in the Local Court being maintained, there is a risk that he might have suicidal ideation. He says that his mental health is so fragile that the risk is not merely of some form of exacerbation of a depressive state but of self-harm.

43. This proposition is based both on the lay evidence and the expert opinion of Dr Stephen Allnutt, obtained for the purposes of these proceedings.

The principles to be applied

44. It is a fundamental principle of our system that the administration of justice takes place in open court and that clear and accurate reporting of persons involved in the proceedings or even in some way associated with the proceedings merely as witnesses would not normally be restricted.

45. In John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors,[4] Spigelman CJ observed:

“[19] It is also well established that the exceptions to the principle of open justice are few and strictly defined. It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional constraints.

[20] The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings.

[21] From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional.” (Citations omitted.)

4. (2004) 61 NSWLR 344; [2004] NSWCA 324 at [19]–[21] (Handley JA and Campbell AJA agreeing).

46. I do not regard the comments of Spigelman CJ as imposing some form of “special circumstances” or “exceptional circumstances” test in the construction and proper application of s 8 of the Act. His Honour was merely observing that, having regard to the principle of open justice, the circumstances in which restrictions might be imposed would generally be regarded as exceptional.

47. Section 6 of the Act requires the Court to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. In considering s 8, I would have regard to that primary objective, but I must apply the provision according to its text, context and purpose.

48. As observed in Rinehart v Welker,[5] the principle of legality favours the construction of the Act which has the least adverse impact upon the open justice principle and common law freedom of speech and where constructional choices are open, so as to minimise its intrusion upon that principle. [6]

    5. (2011) 93 NSWLR 311; [2011] NSWCA 403 at [26] (Bathurst CJ and McColl JA).

    6. Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [5], [27] (French CJ); Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 (Kirby P).

46. One issue of construction has been resolved in more recent times in AB (A Pseudonym) v R (No 3). [7] As the Court identified, there are two possible approaches to the interpretation of s 8(1)(c) of the Act, being, on one hand, the “calculus of risk” approach and, on the other, the “probable harm” approach.

    7. (2019) 97 NSWLR 1046; [2019] NSWCCA 46.

47. The calculus of risk approach requires that the Court consider the nature, imminence and degree of likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary, even if the risk does not rise beyond a mere possibility.

48. The probable harm approach requires an appellant to prove that in the absence of such an order it would be more probable than not that a relevant person would suffer harm.

49. As the Court held: [8]

“[58] … The evident purpose of s 8(1)(c) is to provide a mechanism to protect the safety of persons who would otherwise be endangered by publication of proceedings in accordance with the principles of open justice. This purpose is more effectively advanced by the calculus of risk approach which is, therefore, to be preferred: s 33 of the Interpretation Act 1987 (NSW). As Nettle J said in AB (A Pseudonym) v CD (A Pseudonym) at [15]:

‘The criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person.  And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence.  To take but one, prosaic example, no one today rationally doubts that the wearing of seat belts while travelling in a motor car is necessary to protect the safety of drivers and passengers.  At the same time, it is certainly not the case that, but for wearing a seat belt, it is more probable than not that an occupant of a moving motor car will suffer harm.  That is not to suggest that just any risk of harm will suffice.  To repeat, the provision is not concerned with trivialities.  But what it is intended to convey is that, because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of ‘necessary to protect the safety of any person’ that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.’”

8. AB (A Pseudonym) v R (No 3) at [58] (Hoeben CJ at CL, Price and Adamson JJ).

53. It follows that the calculus of risk approach applies and the parties seeking non-publication orders are not required to prove that, absent such orders, it is more probable than not that a person will suffer harm.

54. Further, another constructional issue that might have arisen relates to any limits on the meaning of “safety” in s 8(1)(c) of the Act. That issue was resolved in AB (A Pseudonym) v R (No 3) at [59] as follows:

“[59] … There is nothing in the statutory wording of the section to indicate that it is intended to be limited to physical safety. The wording is apt to include psychological safety, including aggravation of a pre-existing mental condition as well as the risk of physical harm, by suicide or other self-harm, consequent on the worsening of a psychiatric condition.”

55. Mere embarrassment, discomfort, reputational damage or even financial loss are not sufficient (subject to the limited exception in s 8(1)(d) of the Act) to justify a departure from the principle of open justice but the development or aggravation of a psychological condition may fall within the meaning of “safety”, in the sense of the order being necessary to protect against such harm.

56. Of course, publicity about criminal proceedings may cause harm to individuals in many different ways but, as was observed by Kirby P in Raybos (at 60), a price must be paid for the open administration of the criminal justice system.

57. These matters are concerned with the possible development of severe psychological problems consequent on the publication of identity.

58. Another constructional issue relates to the meaning of “necessary” in s 8(1)(c) of the Act.

59. In Ibrahim at [46], Basten JA observed that the meaning of necessary depends on the context in which it is used. It identifies a standard as to which the Court must be satisfied before making an order.

60. The term “necessary” should not be given a restricted meaning. It must be interpreted and applied in context. [9]

    9. Hamzy v R [2013] NSWCCA 156 at [60] (Harrison J).

61. In Hamzy at [60], Harrison J considered that the context would include the possibility of an irrational and illogical response by other persons to the revelation of information about an applicant in a way that could compromise the safety of the applicant.

62. Balancing of the competing interests should not always be undertaken on the basis of an assumption that a response to publication of a person’s identity will necessarily be reasoned and dispassionate. In Hamzy, the Court was concerned with the risk to the safety of a person from other persons.

63. The same principles should apply when assessing the risk of self-harm. That is, in assessing the risk of self-harm consequent on a psychological state, I would not necessarily proceed on the assumption that the responses of the appellant’s mother and DA to any publicity would be reasoned and rational.

64. The Court is considering mental health issues. It would be somewhat counter-intuitive to assume that attempts at self-harm might be undertaken by a person acting rationally and dispassionately.

65. This point may have some significance in this matter, as there is some emphasis by the media parties and the Crown on the proposition that an order should not be made because there are other alternatives open to DA and the appellant’s mother such as obtaining treatment and taking medication.

66. I am not sure that it can always be assumed that a person contemplating self-harm will necessarily firstly consider the alternative of consulting a psychiatrist (either again or for the first time) or ensure that his or her medication is being properly administered.

67. Another point raised by the parties is whether I should consider the issues on the basis that reporting would be fair and accurate.

68. The media parties submit that I should proceed on the assumption that any reporting would be fair and accurate, thereby dispelling any concerns particularly that DA might have as to the nature of any reporting about him.

69. There were two aspects of the reporting about DA which were the subject of argument.

70. Firstly, DA submitted that the earlier reporting about the charges was neither fair nor accurate. I am not sure that is so. It may be that there could have been additional reporting, but the report which was the subject of most concern included a quotation of something actually said when the criminal proceedings came before the Court.

71. Secondly, DA submitted that, having regard to the earlier reporting, I would consider the risk of unfair and inaccurate reporting about DA in the future. Reference was again made to the Court’s approach in AB (A Pseudonym) v R (No 3).

72. I do not consider that the evidence supports those propositions. I do not assume that future reporting is likely to be unfair or inaccurate.

73. The media parties submit that I should accept that they will not be attributing any responsibility to DA or seeking to blame him in any way, but that is not really the point.

74. The lifting of a non-publication order is not limited in effect to the media companies which are currently parties in these proceedings. Again, that is not to say that any other media outlets will engage in unfair or inaccurate reporting but I should not make a decision based on an assurance on behalf of two media companies that they will only be reporting certain things in a certain way.

75. Further, the more extensive reporting of DA, his background, circumstances, achievements and marital conflict has limited relevance. It does not seem to me that a consideration of how the media has generally reported on DA, both good and bad, impacts upon the essential question which is whether the order is necessary for the protection of the safety of DA.

Determination

The appellant’s appeal

76. In respect of his communications with his mother in relation to the charges against him, the appellant says in his affidavit of 13 October 2020:

“I am a criminal lawyer and I represent clients charged with serious violence and other serious offences. I do not tell my mother the details of these cases because she would be unable to cope with the distress of the details, especially anything to do with serious violence.

One of the things that has helped my mother’s psychological condition is that I have been successful in life, in becoming a lawyer and in working as a criminal lawyer. This has helped my mum a lot and she has great pride in me.

I spoke to my mum in around the end of September this year. I told my mum that I have been alleged to have sexually assaulted someone. I have not told her any further details about the allegations. Before that I didn’t want to tell my mum anything at all about my charge. In September I was preparing for my application for a non-publication order and thought that was the time I needed to tell her.”

77. The appellant’s mother’s background is plagued with trauma. After marrying in Iraq in 1990 by way of an arranged marriage, she and her husband fled Iraq during the Gulf War and lived in a refugee camp in Turkey for a year. Her husband turned out to be a very violent person and, in the refugee camp and after coming to Australia, he repeatedly bashed, raped and physically and mentally abused her. In 2007, she was stabbed 15 times by him.

78. In the sentencing judgment in respect of the husband’s offending, the attack was described as a “prolonged and ferocious attack”. [redacted]

79. The appellant relies particularly on the following part of his mother’s affidavit:

“I am very proud of my son. It is his achievements that have largely helped me to regain my confidence, self-esteem and my trust in men.

[redacted] These are the only words I can use which would describe the effect on me. I am so worried.

This has been a nightmare. The publication of this matter will be unmanageable for me.

[redacted].”

80. He submits that unless such an order is made, there is a significant risk that she will suffer real psychological harm [redacted].

81. I accept that the appellant believes that, if his mother finds out the details of the charges against him, her mental health might deteriorate. [redacted]

82. On the evidence of the appellant’s mother, the public identification of her son as having been “charged over something sexual that happened at work” [redacted].

83. Whilst I accept that their concerns are genuine, a person’s belief that a psychological condition may be exacerbated would of itself generally be insufficient for the purposes of establishing that an order is necessary to protect the safety of that person. As stated in John Fairfax & Sons Ltd v Police Tribunal (NSW),[10] mere belief that an order is necessary is insufficient.

    10. (1986) 5 NSWLR 465 at 477 (McHugh JA, Glass JA agreeing).

84. When considering the safety ground in the context of a risk of self-harm, there needs to be some expert evidence that enables the Court to assess the likelihood and gravity of the risk.

85. The appellant’s mother’s general practitioner, [redacted] provided a number of reports and gave oral evidence. She refers to a consultation on 15 September 2020 as a result of the mother’s flare up [redacted]. She said that she was doing well until recent family issues affecting her son arose.

86. Dr [redacted] says further that, if there is widespread publicity about her son, this will definitely cause a flare up and aggravation of her mental health condition. The negative effect of social media on her will increase the risk of exacerbation of [redacted]. The widespread publicity will damage her and her family’s image.

87. In cross-examination, Dr [redacted] agreed that there are two matters impacting on the appellant’s mother’s mental health, being [redacted] her concern arising from her awareness that her son has been charged with the offence of aggravated sexual assault.

88. [redacted]

89. [redacted]

90. [redacted]

91. Dr George prepared two reports dated 27 October 2020 and 3 November 2020.

92. He was not available for cross-examination. Although the media parties objected to some parts of the reports, I admitted the reports. I considered that the objections were more relevant to weight than admissibility.

93. [redacted]

94. [redacted]

95. “Safety”, when used in s 8(1)(c) of the Act, may include the psychological safety of a person but it does not follow that acceptance of the possibility of an aggravation of pre-existing psychiatric conditions of itself results in an order being necessary.

96. I must adopt the calculus of risk approach, whilst taking into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

97. It is not sufficient for a person to merely identify that he or she will develop or will aggravate a psychological condition. The safety of the person must be considered in the context of all of the circumstances, including the nature and severity of that psychological condition and the severity of any possible aggravation.

98. In my view, on a proper application of the calculus of risk approach, the appellant is not entitled to the order sought.

99. Firstly, it is difficult to form a clear view about the extent to which any publicity might aggravate the appellant’s mother’s psychological state.

100. [redacted]

101. The medical evidence does not support the proposition that she has developed any new psychiatric condition as a result of the limited information being provided by her son. Rather, her psychological condition has worsened over the past two years. The contribution that knowledge of her son’s problems or increased publicity about the charges might make is unclear.

102. [redacted]. That concern will continue irrespective of a non-publication order.

103. Further, there is some inconsistency in the evidence as to what might cause such an exacerbation. Her son expresses concern about his mother finding out the details of the charges as if the only way in which she might find out is through media reporting. She expresses concern about her son’s name appearing in the papers.

104. [redacted]

105. At its highest, receipt of further information about the charges against her son and the identification of her son in the public domain may further exacerbate those already exacerbated conditions but the gravity of that possible exacerbation is uncertain.

106. Secondly, I would only find that an order was necessary if I am satisfied that it may be effective. By this, I do not mean whether the order would be effective in keeping the appellant’s name out of the papers but, rather, whether the order would be effective in protecting the safety of his mother, that is, in preventing an exacerbation of her psychological condition.

107. In this regard, the assumption behind the appellant’s application is that, with a non-publication order in place, she would not find out anything more than he has told her about the charge against him. The non-publication order is said to be necessary to prevent her finding out more about the charges and then experiencing an exacerbation of her condition.

108. This is in circumstances in which the appellant has accepted that he would be telling his clients about the charges and, of course, there would be many others who would be in receipt of such information.

109. I am asked to accept that it is only through media reporting that the appellant’s mother might find out more about the charges against her son and it is only as a result of publicity in the media that she might suffer an aggravation of her psychological condition. There must be a real doubt about that proposition.

110. I thus do not accept that the making of an order is necessary to protect her safety.

111. I accept that the appellant’s mother’s psychological state could be further exacerbated but I am not satisfied that the possibility of that further exacerbation would be of such gravity and prejudice to her safety that the risk would range above the level that might reasonably be regarded as acceptable, having regard to the competing interest in open justice.

Leave to appeal

112. The appellant has not identified error on the part of Magistrate Keady but leave to appeal may be granted when it is in the interests of justice to do so. I accept that the appellant was not able to obtain a psychiatric opinion prior to the hearing of the application in the Local Court. The appellant sought to rely on a psychiatric opinion and other medical evidence on the hearing of the summons in this Court. Whist I have regard to the admonition of the Chief Justice in Ibrahim at [7], it seems to me that the new evidence relied on by the appellant was critical to a proper evaluation of the ground relied on and it would be in the interests of justice that the appeal be determined on its merits.

113. In all the circumstances, I would grant leave to appeal but dismiss the appeal.

The media parties’ appeal

114. DA’s history and profile are perhaps unique in Australia. He has come from a background of extreme violence and trauma and arrived in Australia as a refugee, educated himself, become a leader in the community and established his own law firm.

115. Along the way, he has received considerable accolade, acclaim and recognition. Importantly, he has used this position to promote important causes such as the dangers of drugs. He points to some of the existing and limited reporting in respect of the criminal proceedings as being unfair and inaccurate and indicative of the type of reporting that may arise, absent a non-publication order.

116. I emphasise that none of those matters could provide a basis for the non-publication order. They represent the factual background to the application, which is based on his psychological safety.

117. He submits that, having regard to his background, position and current psychological state, the lifting of the non-publication order made by the Magistrate will likely cause significant psychological harm to him.

118. The media parties do not rely on any additional evidence for the purposes of a hearing de novo, other than extracts of newspaper reporting, which are said to found a submission that the reporting is likely to be fair and accurate.

119. DA and JC rely on the evidence before the Magistrate and also the report of Dr Stephen Allnutt dated 27 October 2020. Dr Allnutt gave oral evidence.

120. DA continued to rely on his affidavit of 21 September 2020, which sets out his history and achievements, as well as his psychiatric history and his feelings on becoming aware of the charges against the appellant. He says:

“The thought that my name or the name of my firm will be published in connection with these proceedings is of great concern for me. It causes me a lot of anxiety and stress. The nature of the allegations will cause me great shame. It is affecting my health. It is causing my mental health to quickly decline. I am fearful of my mental health declining further – particularly given how low I felt the last time I was unwell. I was acutely suicidal. It took me months to get well and to things back on track.

I have recently experienced the following symptoms:

a. I have had difficulties sleeping.

b. I am taking medication to help me with my symptoms.

c. The medication makes me sleep a lot and it is difficult to wake.

d. I feel a real lot of anxiety. I struggle to cope with the anxiety.

e. I cook but can’t eat the food I cook.

f. I get diahorrea because I am so anxious.

g. I am concerned about the future.

h. I am concerned about my child.

I feel great shame. I have not done anything wrong. I was not a part of what they were doing with drugs or sex. I feel this will impact my standing in the community and [affect] the way that I contribute to the community. I do not want to be associated with what occurred because I do not tolerate that culture and those actions. I am so concerned about my mother hearing about any connection of these allegations to me. There is no such shame in her family. This causes me great distress. The shame is so great, that I am considering [leaving] Australia if my name is published.”

121. After referring to his concerns about the probability of the adverse impact that the publicity would have on his firm, he says:

“All of these things, combined and individually, are matters that I worry about. I sometimes cannot manage my worry. I am not sleeping well. I am very scared of falling into a bad situation that I have previously experienced with my mental health. All of these stressors make me feel like I am slipping in that direction. I am scared to return to that state. I worked diligently and so hard on getting better. I was not even back at work full-time at the time that the incident is alleged to have occurred. I was not socialising with staff/employees at that time. I had no idea of the conduct that was either occurring/alleged to have been occurring.”

122. The media parties emphasise that, at least based on DA’s affidavit, his predominant concern or fear seems to be that his mental health would deteriorate because he will be accused of wrongdoing or that there will be inaccurate or unfair reporting. It is said that the psychiatric opinion expressed by Dr Allnutt is based on incorrect assumptions or history.

123. The media parties state that they do not wish to attribute any blame to DA in connection with the allegations against the appellant. They say that they merely wish to publish a fair and accurate report of the proceedings in accordance with established principles. That might involve referring to him being a partner or as a possible witness. The media parties say that it is not their intention to suggest DA was in any way involved in the commission of the offences or that he is alleged of any other wrongdoing.

124. The media parties called to their aid the observations of Wilson J in Liu v Fairfax Media Publications Ltd. [11] In that matter, her Honour said that she could see no scope for financial or reputational harm being caused to the person, being a witness, or his company by accurate and informed reporting of the trial. Accurate reporting would also have the effect of correcting the record, as well as making it clear that the applicant in that case was not criminally involved in the events the subject to the trial. I accept that the media parties intend to report fairly and accurately but I do not consider that fact necessarily tips the balance against a non-publication order. This is because it rather ignores the prospect of self-harm in response to even accurate reporting.

     11. [2018] NSWCCA 159 at [41] (Hoeben CJ at CL and Price J agreeing).

125. In my view, Dr Allnutt’s evidence is critical to the outcome. Dr Allnutt conducted a clinical evaluation of DA through audio-visual connection on 25 October 2020. It is not necessary that I again refer to DA’s background. Suffice to say that DA has been suffering from depression and PTSD for a long time. He was first diagnosed in 2000. He has seen multiple mental health professionals. He has had psychiatric treatment at various times and seen numerous psychologists.

126. He sought psychological treatment in 2013 on the death of his brother. He had seen other psychologists in 2003 and 2007 and later, in 2018 and 2019, in respect of the symptoms of PTSD. He was voluntarily admitted to Blacktown Hospital in 2018 in the context of a marital conflict with his ex-wife.

127. There were issues relating to his daughter. He became suicidal and went to Blacktown Hospital where he remained for a period of four days. On discharge, he was followed up by the Sutherland Hospital Mental Health services for about four months.

128. There was a further episode when the Police came to investigate allegations of domestic violence (that he was not involved in). There was an incident with a Police Officer pulling out a gun. He again was admitted to Royal Prince Alfred Hospital (“RPA”).

129. His last psychological treatment was in August 2020. He had last taken anti-depressant medication in June 2020. He stopped taking the medication because it affected his sleep and work performance.

130. Significantly, since the age of nine, he has engaged in multiple suicide attempts. When examined by Dr Allnutt, he denied any current active suicidal thoughts or plans but said it was an option he may consider if the non-publication order were lifted and he were unable to leave Australia due to COVID-19.

131. Dr Allnutt diagnosed DA with chronic PTSD with associated depression. DA is significantly preoccupied with his current circumstances. He is reclusive and not working. He framed his current situation in terms of re-experiencing being accused and punished for something he did not do (akin to experiences he had as a child). His propensity to respond to stress with increased anxiety and aggravation of depression and PTSD is entrenched. Dr Allnutt says:

“[There] is a history of prior suicidal ideation and attempts. He is significantly distressed by his circumstances and the impact that publicity would have on his reputation.

It would be reasonable to conclude that given his public profile, and the value that he places on his reputation, the ensuing publicity that would likely follow the lifting of the non-publication order, would have particularly onerous effect, would likely exacerbate/trigger a deterioration in his mental state and increase the risk of suicidal behaviour, particularly given his history of prior suicide attempts and suicidality.”

132. Dr Allnutt gave oral evidence. The focus of cross-examination was on the development of DA’s psychiatric symptoms, his suicidal ideation and his achievements, which have, of course, mitigated his psychiatric state somewhat. Dr Allnutt agreed that DA had suggested that he could not go back to work until he cleared his name because of his embarrassment arising from the charge and its relationship with his firm. He was particularly concerned about any suggestion of a culture of drugs, bearing in mind his own public opposition to drugs.

133. He felt he was unable to continue working and attending schools and teaching children about not using drugs in the circumstances because of the shame he feels.

134. Dr Allnutt accepted that the notion of shame or self-shame is a central aspect of his concerns. However, he rejected the proposition that DA’s need to clear his name and self-shame were the stressors aggravating his mental health. He said that DA’s need to clear his name is probably a behavioural attempt to deal with the stress caused by the matters affecting his mental health. He said the shame may go away if DA’s name is cleared but may not necessarily go away because it is potentially out there. There remain a number of factors at play. The sense of self-shame has stopped him working, despite the non-publication orders.

135. Dr Allnutt was also asked about how any form of treatment could assist DA’s PTSD and related depressive disorder. He said that with such a condition, a combination of cognitive behavioural therapy and anti-depressant medication would assist.

136. He recommended ongoing psychological treatment over a period of 6 to 12 months. He envisaged two weekly visits. He agreed that psychological counselling would assist DA in managing his mental health. He said he was hopeful that such treatment would be of assistance but, on the other hand, the lifting of a non-publication order would be a perpetuating factor and would make him more resistant to treatment.

137. He said that did not mean that DA could not be treated but merely that it would become more resistant. He might need to recommend more intense treatment if the non-publication order is lifted.

138. When asked about what may happen if the non-publication order is lifted, Dr Allnutt said that it could result in involuntary admission to a psychiatric hospital. He agreed that was a potential consequence. He then said:

“A. Yes or it could result in suicide. The reason for the admission to a psychiatric hospital would be for an increase in suicidality. That's the concern in this case.

Q. I will come to the concern. Does the prescription of antidepressant medication, is that a way of as it were managing his condition and attempting to address that concern if it were to happen?

A. It may or may not address the concern. It is likely to ‑ my concern ‑ I mean the concern from a clinical perspective would be that if the non‑publication order is lifted the medication may not have any effect because it's a significant perpetuating stressor.”

139. He was asked about DA’s referral to RPA Community Mental Health to follow-up and monitor his mental health state. He said that referral was made on 28 October 2020. It was made because he was concerned about DA’s suicidality.

140. He was concerned that over the longer term, given the stress that DA was under and his history of suicidality, DA would require ongoing psychiatric oversight. Dr Allnutt said:

“He had a diagnosable psychiatric condition that is associated with increased suicide risk. He had a prior history of suicidal behaviour and he was making vague threats. Certainly threats that ‑ while the threats were related to anything‑ a response to the non‑publication order being lifted, they were nonetheless threats, and he was in quite an emotional state when I saw him and those factors combined led me to make that referral because on balance I thought that's what was required.”

141. When asked whether, as at 28 October 2020, the RPA Community Mental Health would have been providing assistance to DA, Dr Allnutt said that as far as he knew, DA had not engaged with them.

142. The fact that DA has not engaged with the community mental health team is not a factor that militates against any order, unless it might be suggested that his non-engagement should be viewed as casting doubt on the severity of his condition. This was not suggested by anyone. Rather, the failure to engage thus far increases the possibility of a non-reasoned response to the publicity which he fears.

143. In AB (A Pseudonym) v R (No 3) at [111], the Court rejected the submission that an order was not necessary to protect the person’s psychological safety as the person had not sought treatment for his depression and had not sued for defamation. The Court rejected the proposition that the applicant had a duty to mitigate. It tended to distract from the real question.

144. As was said by Meagher JA in R v AB (No 1),[12] s 8(1)(c) of the Act:

“[D]irects attention to whether the continuation of the suppression order would be likely to prevent or minimise any existing risk and to whether there are alternative actions that might be taken in response to that risk, which would otherwise achieve the same outcome.”

12. (2018) 97 NSWLR 1015; [2018] NSWCCA 113 at [42].

145. It has not been established that the suicide risk that has been identified by expert evidence in this case would likely be reduced because DA could avail himself of anti-depressant medication and treatment should the non-publication order be lifted. The evidence does not support the proposition that treatment, if taken up by DA, would achieve the same outcome.

146. As I have emphasised, I should not proceed on the assumption that a person suffering from the severe type of psychiatric conditions of which DA suffers will respond to an additional stressor in a reasoned and rational way, that is, by immediately seeking treatment rather than recoursing to self-harm.

147. Nor do I consider the submission about the coherence of law and the remedies available to a person aggrieved by unfair and inaccurate reporting particularly compelling.

148. Whilst I am not sure whether precisely the same submission was made in AB (A Pseudonym) v R (No 3), the Court (at [113]) did reject the suggestion that the potential to pursue defamation proceedings could make an order under s 8 of the Act unnecessary.

149. DA’s perception is not the subject of challenge. He feels a real sense of shame. He considers that his reputation has been damaged and that he is likely to suffer significant loss. He has stopped work and his psychological condition is such that he cannot return to work at this time.

150. The only expert medical opinion is to the effect that if the non-publication order is lifted, DA may need urgent admission to a psychiatric hospital and there is a real suicide risk. Dr Allnutt rejected the proposition that in some way these risks were lessened by suggestions that no blame would be attributed to DA and there would be no criticism of him. As he said, there is such a thing as “guilt by association” and it is DA’s perception that needs to be considered.

151. DA fears diminishing of reputation. He fears that his hard-won gains have been destroyed. His campaign against drugs is affected. None of these matters would of themselves be sufficient to support a non-publication order under s 8(1)(c) of the Act.

152. However, these are stressors that impact upon DA’s pre-existing and significantly vulnerable psychological state. DA has established through his psychiatric evidence that there is a real risk of self-harm should the non-publication order be lifted. The risk is at such a level that Dr Allnutt would anticipate immediate admission to a psychiatric facility and the need for constant monitoring in those circumstances.

153. The causes and origin of a psychiatric illness are often subjective. DA’s likely or possible response to the lifting of a non-publication order may not be reasonable or rational but that is not the determining factor.

154. I accept that the events that have occurred involving the appellant have aggravated or caused a re-emergence of DA’s longstanding psychological conditions. I also accept that there is a significant risk that the lifting of the non-publication order would further aggravate his condition such that there would be a very real risk of self-harm. DA has a history of suicide attempts, although not in recent times.

155. I accept the evidence of Dr Allnutt on this issue. The evidence establishes a direct link between the lifting of the order and the very real suicide risk.

156. Whilst I also accept that the lifting of the interim non-publication order in favour of the appellant may lead to an increased risk of persons ascertaining the relationship between DA, the law firm and the appellant, that does not render the order under s 7 of the Act less necessary for the protection of the safety of DA.

157. Whilst acknowledging that a primary objective of the administration of justice is to safeguard the public interest in open justice, I should make an order under s 7 of the Act if I am satisfied that it is necessary to protect the safety of DA.

158. In the circumstances I have set out, I am so satisfied.

159. I also accept that, as a practical matter, the non-publication order must continue in favour of JC and the law firm. On the evidence, I do not know how any order could protect the safety of DA if the order does not extend to his partner and the name of the law firm.

160. As such, even if leave is granted, the media parties would not be entitled to the orders they seek in their appeal.

Leave to appeal

161. As I said earlier in this judgment, the media parties submitted that there were a number of errors in the learned Magistrate’s decision.

162. I do not consider it necessary to make any findings about all of those alleged errors, except to say that I am not sure that the decision is replete with error. Having said that, I accept that the finding of the learned Magistrate that public identification and linkage with the criminal proceedings are likely to cause serious harm to DA’s mental health was made without any expert medical evidence to support that finding. It was more based on the belief of DA. The learned Magistrate erred in that regard.

163. I would thus grant leave to appeal but dismiss the appeal.

Conclusion

164. In Proceedings 2020/294356, the amended summons filed in Court on 14 October 2020 is dismissed subject to the following:

1. the interim orders I made on 14 October 2020, in relation to these Supreme Court proceedings and the criminal proceedings involving the Plaintiff, are extended until 9 December 2020 or further order of the Court to enable the parties to consider any application to suppress parts of this judgment and any further appeal.

165. In Proceedings 2020/297599, the summons filed on 16 October 2020 is dismissed, such that orders 2, 3 and 5 made by Magistrate Keady on 9 October 2020 remain in place.

166. I make an order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting the publication of any information tending to reveal the identity of the Second, Third and Fourth Defendants in Proceedings 2020/297599 in connection with these Supreme Court proceedings. This order is made on the ground that it is necessary to protect the safety of a person within the meaning of s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW). The order is to apply throughout the Commonwealth of Australia and until the conclusion of the criminal proceedings being prosecuted against the Plaintiff in Proceedings 2020/294356 (the First Defendant in Proceedings 2020/297599).

167. Access to this judgment will be restricted pending any further application or orders that might be made over the next 7 days.

168. I grant leave to the parties to apply to have either matter re-listed on two days’ notice on any issue arising from this judgment, including costs. I direct that the parties consider whether any further orders are necessary in respect of any parts of this judgment, including any information relating to the mental health and treatment of persons involved.

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Endnotes

Amendments

23 December 2020 - Judgment redacted in part pursuant to agreement of the parties, following further hearing on 17 December 2020.

Decision last updated: 23 December 2020