AB (A Pseudonym) v R (No 3) - [2019] NSWCCA 46

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46
Hearing dates: 20 February 2019
Decision date: 08 March 2019
Before: Hoeben CJ at CL at [1];
Price J at [1];
Adamson J at [1]
Decision:
(1) Grant leave to appeal against the decision of Williams SC DCJ on 23 January 2019 to refuse to make a non-publication order in respect of the applicant’s identity.

(2) Allow the appeal.

(3) Order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW):

(a) that the applicant be referred to by the pseudonym AB.

(b) that publication of any information:

(i) tending to reveal the identity of AB, a party to these proceedings, in connection with these proceedings or in connection with the evidence given in these proceedings or in connection with information about evidence given in these proceedings; or

(ii) tending to reveal the identity of AB's spouse or children in connection with these proceedings or in connection with the evidence given in these proceedings or in
connection with information about evidence given in these proceedings;

be prohibited.

(4) Order (3) shall apply:

(a) to all media including but not limited to print, radio, television, internet and social media;

(b) anywhere in the Commonwealth;

(c) until 20 years from the date of this order.
(5) Order (3) is made on the ground under s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the order is necessary to protect the safety of any person, namely, AB and AB’s spouse and children.
Catchwords:
CRIMINAL PROCEDURE – suppression and non-publication orders – appeal against decision not to make non-publication order – leave granted on grounds that court below materially misconstrued s 8(1)(c) of Court Suppression and Non-Publication Orders Act 2010 (NSW) by adopting probable harm test – calculus of risk approach adopted
CRIMINAL PROCEDURE – suppression and non-publication orders – rehearing under s 14(5) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) – evidence of risk of physical harm to the applicant – evidence of significant psychological harm to applicant and applicant’s family – order necessary to protect the safety of the applicant – circumstances of misreporting by media and threats to applicant – orders made
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15D
Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 10, 12, 13, 14
Crimes (Sentencing Procedure) Act 1999 (NSW), s 12, Pt 3, Div 2
Evidence Act 1995 (NSW), s 64
Federal Court Act 1976 (Cth), s 50
Interpretation Act 1987 (NSW), s 33
Cases Cited: AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6
AB (A Pseudonym) v The Queen [2018] HCATrans 134 (25 July 2018)
Barlow v R [2008] NSWCCA 96; (2008) 184 A Crim R 187
D1 v P1 [2012] NSWCA 314
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78.
Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hamzy v R [2013] NSWCCA 156
Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21
John Fairfax Publications Pty Limited v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
R v AB (No 1) [2018] NSWCCA 113
R v AB (No 2) [2018] NSWCCA 148
R v Wilhelm [2010] NSWSC 378
Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65
Rinehart v Welker (2016) 93 NSWLR 311; [2011] NSWCA 403
Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36
Stills v State of New South Wales [2019] NSWCA 4
Category: Principal judgment
Parties: AB (Applicant)
Regina
Representation:
Counsel:
P Barrett/B Baker (Crown)
V Heath (Applicant)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Brendon Dunstan Solicitor (Applicant)

File Number(s): 2015/281608
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23 January 2019

Before:

Williams SC DCJ

File Number(s):

2015/281608

Judgment

THE COURT: The applicant, AB, seeks leave pursuant to s 14(1) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act) to appeal against the decision of Williams SC DCJ on 23 January 2019 not to make a non-publication order in respect of AB’s name or anything that might identify him in connection with particular criminal proceedings.
All references in these reasons to legislation are references to the Act unless otherwise indicated.
In order to appreciate the nature of the application, it is necessary to summarise what has led to it.

The factual background

The criminal proceedings

The arrest and charging of the applicant

On 25 September 2015 the applicant was arrested and charged with sexual offences alleged to have occurred between 1980 and 1985 when he was aged between 17 and 24 against two female complainants who were between 7 and 9 years younger than he was. His arrest attracted some short-lived publicity which revealed the applicant’s address. For a few weeks after this publicity, vehicles driven by persons unknown to the applicant arrived at his farm. This disturbance soon abated.

The effect of the Children (Criminal Proceedings) Act 1987 (NSW)

Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) relevantly prohibits the publication or broadcast of the name of a person in a way that connects the person with criminal proceedings if the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed (s 15A(1)(a)). The word “child” is defined as someone who is under the age of 18 years. Section 15A(5) of the Children (Criminal Proceedings) Act makes it clear that not only the person’s name is protected from publication or broadcast but also any information, picture or other material that identifies the person or is likely to lead to his or her identification. A person may consent to the publication of his or her name if over the age of 16 years at the time of publication: s 15D of the Children (Criminal Proceedings) Act.
The effect of the Children (Criminal Proceedings) Act is that the names of the complainants could not be published or broadcast without their consent and the name of the applicant could not be published or broadcast without his consent in connection with those offences which were committed when he was under the age of 18 years (counts 4, 5 and 6 on the indictment and a Form 1 offence). Publication or broadcast in breach of the Children (Criminal Proceedings) Act is a criminal offence.

The sentencing of the applicant

On 30 January 2017 North DCJ was taken to have made an order which purported to prohibit the publication of the names of the complainants or the applicant. Later, on 1 December 2017, his Honour clarified that no order had been made under the Act.
On 4 April 2017 the applicant formally entered pleas of guilty to 8 counts on an indictment and asked for a Form 1 offence to be taken into account. On 7 April 2017 a sentence hearing took place before North DCJ at which agreed facts were tendered. The agreed facts indicated that the offences had occurred in the context of a closed church community (known as The Truth Church) to which the applicant’s parents and the parents of the complainants belonged. The applicant had been left to play unsupervised with the complainants in circumstances where the applicant had received no sexual education.
The sentencing judgment was delivered on 2 June 2017. In the reasons, the sentencing judge noted the Crown’s acknowledgment that the applicant was “simply another child in terms of context and circumstances, as opposed to mathematical age, engaged in a church community and the Wellington community”. His Honour found that the offences involved neither violence nor threats. The sentencing judge accepted that throughout the time of the offending “the offender remained naïve and sexually immature” and that throughout his youth and into his early adulthood he was living with his elderly parents on an isolated property which was not connected to electricity and where there was no television. The applicant’s parents took him to their church meetings which was how he came into contact with the complainants. The sentencing judge described the applicant’s background and the circumstances in which the offences occurred as being “most unusual”. His Honour found:

“Although much older than the two complainants [the applicant] was mentally ill equipped to cope with the situation he found himself in when attending The Truth church and other meetings with the complainants.”

A discount of 20% was allowed for the plea of guilty. His Honour gave weight to the applicant’s prior good character which entitled him to leniency and said:

“His lack of criminal record and his hard work have meant that since these offences were committed he has led an exemplary life.”

The sentencing judge accepted that the applicant was “now genuinely remorseful”. The applicant was not cross-examined on his affidavit in which he offered a direct and sincere apology to the complainants.
His Honour noted that the applicant was married and had two children. At the time of sentence the applicant was 55 and lived on a rural property with his wife and raised cattle which he sold at auction through Elders Rural Services Australia Pty Ltd (Elders), stock and station agents. He had worked hard on the land in difficult and variable weather conditions. The sentencing judge accepted the unchallenged evidence of Ms Howell, a psychologist, that the applicant was suffering from a major depressive illness as a result of his preoccupation with “these unresolved matters” which had caused insomnia. His Honour also noted, as part of the consideration of subjective circumstances, that the applicant suffered from high cholesterol and other health conditions.
Although the Crown submitted that a full-time custodial sentence ought be imposed it accepted that it was open to the Court to suspend the sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentencing judge imposed fixed term sentences of imprisonment for each of the 8 counts and ordered that the execution of the sentence be suspended. The applicant was released on a good behaviour bond for the term of the sentence.
There was no Crown appeal against the sentences imposed. Neither the sentence hearing nor the sentence itself attracted any publicity at the time, or for the period of almost six months later.

The publicity after the sentence and its consequences

On 19 November 2017 Annabel Hennessy, a reporter for the Daily Telegraph, a tabloid newspaper published on-line and in a print version in New South Wales, posted messages on social media foreshadowing the publication of an article on 20 November 2017. Ms Hennessy’s Twitter account was followed by Bravehearts, an advocacy group for survivors of sexual abuse which itself has more than 70,000 followers on Twitter.
On 20 November 2017 Ms Hennessy published an article which purported to report on the sentence imposed on the applicant for the crimes he had committed. The article bore little, if any, resemblance to the facts set out above. The headline read: “Victims fight court secrecy. HIDE AND FREAK. EXCLUSIVE: Judge spares predator jail because of insomnia and ‘high cholesterol’.” The applicant was described as a “predator” and “a sex monster”. Ms Hennessy wrote that he had “raped girls as young as nine at his church”, implying not only that the applicant was in some position of authority at the church but that there was a very substantial age difference between him and the complainants. It was also reported (incorrectly) that the sentencing judge had made a suppression order to protect the applicant’s name from disclosure. North DCJ subsequently confirmed on 1 December 2017 that he had not made an order under the Act and that, in so far as there was an existing prohibition on the publication of the name of the applicant or the complainants, that arose from the Children (Criminal Proceedings) Act.
For the following week, the Daily Telegraph continued to publish articles relating to the applicant both in its on-line and printed format. Its misreporting of the proceedings had the effect of inciting community outrage against the applicant, the sentencing judge and the administration of justice. The Daily Telegraph’s message to its readers was that the applicant continued to pose an urgent and present danger to children which the law had entirely failed to address, much less prevent. It insinuated that the only explanation for the suspended sentence was that there was a conspiracy or some act of corruption that had interfered with the course of justice. Its reporting prompted the Attorney-General and the Leader of the Opposition to make public statements, which were apparently based on the media reports that were critical of the sentencing decision and the non-publication order which was then understood to be in force. There was no indication in the content of these public statements that their makers were aware of the approach the Crown had taken in the sentencing hearing, the agreed facts and other evidence or the reasons in North DCJ’s sentencing judgment.
Despite the operation of s 15A of the Children (Criminal Proceedings) Act and the order which was thought to have been made by North DCJ on 30 January 2017, the articles identified the applicant by publishing his actual initials, his age, his occupation, social circumstances and locale, as well as a partially pixelated photograph that had been copied from his daughter’s Facebook page. These matters were sufficient to identify the applicant to anyone who knew him.
The articles gave rise to substantial media and social media interest in local and national newspapers, local television, local and national radio, online news sites, blogs, Twitter, Facebook and other “special interest” sites. The community response to these reports was, in the main, vitriolic. Many comments, which constituted little more than ill-informed abuse, were made by people who felt entitled to express their views on a basis which paid no attention to the facts, which had not in any event been accurately reported. The posts contained threats of murder and were generally abusive towards both the applicant and the sentencing judge. One included a photograph of a noose, which can be taken to intimate that the applicant ought kill himself. One such post said, “vigilantes need to visit him on his farm”.
By letter dated 21 November 2017, Elders, with whom the applicant had done business for his entire working life to that point, cancelled his trading account and refused to act for him at the sale scheduled for 1 December 2017 or to fulfil his then current order for farm supplies and had determined not to answer any questions the applicant might pose about this action.
By about 23 November 2017, at least two persons had published the applicant’s name, address and photograph on Facebook. This would have been sufficient for anyone who did not already know the applicant to identify and locate him.
Approximately five days after the initial publication on 20 November 2017, an on-line petition was started against the applicant. Within a few days 5,000 signatures were collected. Readers were permitted to comment as well as indicate their support for the petition. Many of the comments involved threats of violence, including murder, against the applicant. There was discussion about how the applicant could be killed. The overall gist of such comments was that, for improper reasons, the sentencing judge had not imposed an adequate sentence on the applicant, that the legal system had failed to address the continuing danger posed by the applicant and that, as a consequence, members of the community would be justified in taking the law into their own hands.
Not long after the publicity began, the applicant received threats of physical harm by telephone and in person. He was ostracised from his church and his community. Because Elders refused to sell the applicant’s cattle at auction they could only be sold privately and at generally lower prices. Although the applicant, who continued to live a relatively secluded life, did not read the articles in print or on the internet or use social media, he was soon made aware of the effect that they were having on others. He learned of the way in which he was being portrayed and the threats which were being made against him. The applicant’s mental and physical health and, to a lesser extent that of his wife, were immediately affected.
On 25 November 2017 the back wheel of the applicant’s car came loose when it was being driven by the applicant’s daughter (the wheel incident). At the time the applicant did not associate the wheel incident with the storm of publicity since he inferred that it had occurred as a consequence of work which had been done on the tyre when a puncture had been repaired on 9 November 2017. The evidence in relation to the possible cause of the wheel incident on 25 November 2017 will be addressed in the summary of the evidence before the Court below.

The background to the present application

The first application for a non-publication order

The applicant’s notice of motion for a non-publication order filed on 7 December 2017

As a consequence of the publicity, the applicant applied for an order under the Act that his name (or any other matter which could lead to his identification) not be published. The application was heard by North DCJ on 8 and 12 December 2017. The transcript reveals that the Crown did not oppose the making of orders under the Act to prevent publication of the applicant’s name, although it did oppose orders to suppress the names of the complainants (as they had consented under s 15D of the Children (Criminal Proceedings) Act to their names being revealed).
The Crown did not take issue with any of the factual matters raised by the applicant in support of the application.

The decision of North DCJ on 12 December 2017

On 12 December 2017, North DCJ made an order “for the non-publication and suppression of the name of the offender in these proceedings or any other party related to or otherwise associated with the offender or any information tending to reveal the identity of the offender … pursuant to s 8 [of the Act]” and an order that “the applicant not be related to or otherwise be associated with the pseudonym [the applicant’s initials].”

The publicity following the first non-publication order

On 13 December 2017, the Daily Telegraph published a further article which criticised the court for making a non-publication order. The headline read: “Dubbo paedophile’s identity kept secret while his victims came forward”. The article said:

“The latest bizarre court decision in the case of a sex monster spared jail for reasons including his high cholesterol and sleeping problems is that his victims can be identified – but he still can’t be named and shamed.”

The journalist omitted to report that the only reason that the complainants could be named was because they had consented pursuant to s 15D of the Children (Criminal Proceedings) Act to the disclosure of their names. Nor was the fact that the Crown had not opposed the order referred to. No fair report of the reasons for the imposition of the suspended sentence, or the Crown’s concurrence with it as an available sentencing option, was published. A YouTube video appeared with a photograph of North DCJ. Obscene comments were posted, including the following, which was by no means atypical: “rape the pedo and judge with a barbed wire dildo up their arse”.

The appeal against the first non-publication order

On 20 December 2017, the Crown, notwithstanding that it had not opposed the making of a non-publication order, sought leave to appeal against it. The Crown appeal was heard by this Court on 6 April 2018. The applicant did not oppose a grant of leave because of a formal defect in North DCJ’s order.
At the hearing of the appeal, the Crown did not dispute the evidence led or facts found by North DCJ. Nor did the Crown dispute that the wheel incident had occurred as a result of a third party loosening or removing the wheel nuts of the applicant’s vehicle or that this endangered the applicant and others, including his family members, who might be, or have been, driving the vehicle.

The proposed amendment to s 8(d) of the Act

On 22 May 2018 (while this Court’s decision on the appeal from North DCJ’s decision was still reserved) the Attorney-General issued a media release which announced a proposed amendment to the Act to add the words “unless there are exceptional circumstances” to the end of s 8(1)(d) which, at that time, provided:

(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 an act of indecency)

The amendment, which commenced on 21 June 2018, relevantly added the following to s 8:

(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.

Further publicity

Ray Hadley, a radio commentator, and others, spoke about the case on air. Their stations published articles online. The disparity between the broadcast and published comments on the one hand and the truth on the other remained. The online article referred, incorrectly, to the applicant as “the head of a religious cult when he began attacking the then eight and ten year olds” and said that the judge had “ruled that the applicant’s name be kept secret [true] while the victims can be named [false].” As referred to above, the victims could be named because they had consented to disclosure of their names, an avenue available to them under s 15D of the Children (Criminal Proceedings) Act.
On 23 May 2018, in breach of the non-publication made by North DCJ on 12 December 2017, Mr Hadley concluded his radio program with the exhortation: “name the filthy low grub at every opportunity”.

The decision of the Court on appeal

On 6 June 2018, this Court upheld the Crown appeal and set aside the non-publication order: R v AB (No 1) [2018] NSWCCA 113. The order of the Court of Appeal was stayed for a period of 14 days to permit the applicant to make a fresh application to the District Court or to seek special leave to appeal to the High Court. Meagher JA confirmed at a hearing on 15 June 2018 that the applicant was at liberty to make a fresh application to the District Court under the Act and could do so under s 8(1)(c) on the basis of psychological harm, if so advised.
The decision in R v AB (No 1) was the subject of comment in the following post on social media:

“Update on the peadophile [sic] I carry on about. Today the Appeal Court agreed his name should be unsuppressed. But of course there is a two week “stay” so the most protected; admitted guilty; sexual abuser in the history of our state can try to appeal being identified yet again. Waiting with bated breath until June 20.”

On 20 July 2018 this Court (Meagher JA, Rothman and Garling JJ) relevantly stayed the orders made on 6 June 2018 until 30 July 2018 or earlier determination of the stay application in the High Court: R v AB (No 2) [2018] NSWCCA 148. The application for special leave to appeal to the High Court did not proceed as the Crown accepted, at the hearing of the applicant’s motion for a stay in the High Court on 25 July 2018, that the applicant was entitled to make (and, indeed, had already made) a further application for a non-publication order under the Act. The Crown expressly conceded, as noted by Gageler J in his reasons given ex tempore, that “it is open to the applicant to lead further evidence, including as to the wheel incident, to seek to establish the risk of both physical and psychological harm to the applicant and his family”: AB (A Pseudonym) v The Queen [2018] HCATrans 134 (25 July 2018).

The second application for a non-publication order

By notice of motion filed on 4 July 2018 the applicant made a further application in the District Court for a non-publication order under the Act on the basis of evidence which was materially different from, and supplemented, the evidence he had adduced in support of the first application.
The following day, 5 July 2018, the following post was linked to an article published in the Daily Telegraph:

“The admitted guilty predator continually utilises the system to protect himself (today again trying to appeal against releasing his name) . . .The community backlash against him will be much worse than if he had simply let the system work as it should last year.”

On 23 July 2018 Berman DCJ made an interim non-publication order pending determination of AB’s further application in the District Court.
The applicant’s notice of motion was heard by Williams DCJ on 21, 22 and 23 January 2019. On 23 January 2019 Williams DCJ, following reasons given ex tempore, refused the application for a non-publication order. This order remains stayed pending determination of this leave application.
In summary, a non-publication order in respect of the applicant’s name and identity has been in force, either as an order or as the consequence of a stay, since the non-publication order was made by North DCJ on 12 December 2017.

The present application

The application for leave to appeal against the refusal of the non-publication order

It is against the refusal by the Court below of his application for a non-publication order that the applicant seeks leave to appeal to this Court. The jurisdiction arises under s 14 of the Act which is set out below.
The applicant has relied on five grounds for the grant of leave, the first of which replicates the first ground of appeal: that the Court below “materially misconstrued s 8(1)(c) of the Act”. Because we consider, for the reasons given below, that this ground of appeal has been made out, we are satisfied that leave ought be granted. In these circumstances it is not necessary to address the other bases on which the leave application rested.
The applicant’s application alleges errors of law ([1]-[5]) and errors of fact ([6]-[15]). In the circumstances referred to above, we do not consider that it is necessary to address each of these alleged errors. We propose to give reasons for our view that the Court below misconstrued s 8(1)(c) of the Act, before turning to the application which, under s 14(5), is for this Court to determine on the basis of the evidence before us as a hearing de novo: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [6] (Bathurst CJ, Whealy JA agreeing); [21]-[27] (Basten JA) and D1 v P1 [2012] NSWCA 314 at [43] (Bathurst CJ, McColl JA and McClellan CJ at CL agreeing).

The legislative framework

A court is to take into account, when deciding whether to make an order under the Act, that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 6. The court’s power to make orders, which is conferred by s 7 of the Act, entitles the court to make orders prohibiting or restricting the publication or other disclosure of information tending to reveal the identity of a party to, or witness in, court proceedings and of information that comprises evidence, or information about evidence, given in proceedings before the court. The grounds for making an order are set out in s 8. Although the application in the Court below was sought on the ground in s 8(1)(c), the section is reproduced in full below, because of its importance to the disposition of this application, 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 of 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.

Interim orders, which do not require any determination of the merits of the application, may be made under s 10. Under s 12, an order under the Act endures for the period specified in the order. The court has an obligation to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made. Orders under the Act are subject to review: s 13.
Section 14, under which this application is brought, relevantly provides:

14   Appeals
(1)    With leave of the appellate court, an appeal lies against:
(a)     a decision of a court (the original court) to make or not to make a suppression order or non-publication order, or

. . .
(2)    The appellate court for an appeal under this section is the court to which appeals lie against final judgments or orders of the original court or, if there is no such court, the Supreme Court.
. . .
(4)    On an appeal under this section, the appellate court may confirm, vary or revoke the order or decision subject to the appeal and may make any order or decision under this Act that could have been made in the first instance.
(5)    An appeal under this section is to be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.
. . .

The reasons of the Court below for refusing the non-publication order

The Court below, after summarising the evidence, turned to the relevant principles governing an application on the ground that the order is necessary to protect the safety of any person: s 8(1)(c).
The evidence of risk to safety of a person or persons which was before the Court below can be conveniently grouped into three categories:

evidence from Ms Howell, a psychologist, as to the mental states of the applicant and his wife and the risk of psychological harm to them if no non-publication order were made;

expert evidence from Professor Cunneen, an expert in criminology, as to the relationship between printed and on-line media sources, such as newspapers and social media, and actual harassment or violence of persons identified in such media; and

the wheel incident evidence, that the wheel nuts on the rear tyre of the applicant’s vehicle had been tampered with in November 2017 after the publicity which commenced in 20 November 2017 which led to the wheel becoming detached on 25 November 2017.

After setting out the facts, his Honour said:

“[26] There was some debate as to the relevant burden of proof. Mr Robinson submitted that there was a division of opinion at appellant level as to what was required by s 8(1)(c) and he urged the Court to consider a calculus of risks such that a merely possible risk of severe harm would suffice.
[27] However, in my view Meagher JA, at [30] and Rothman J at [77], of R v AB [(No 1)] made it clear that the satisfaction of the burden of proof on the balance of probabilities involves subparagraph (e) which makes express a weighing process. That is, as Rothman J said, even if a non-disclosure order were reasonably required to protect the safety of some person when balanced against the primary objective of open justice the Court may determine not to issue a non-disclosure order.
[28] As Meagher JA said at [42]:
‘[Subsection (c)] directs attention to the likely position concerning the safety of those persons in the event that the existing order is revoked. Matters relevant to that inquiry include whether there would be a risk (continuing or arising) to the safety of those persons, and the likelihood and seriousness of its possible consequences. It also directs 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.’

[29]   The Crown's reply submissions this morning addressed the principal points made by Mr Robinson on behalf of the applicant. I accept that the utility of making a non-publication order is a relevant consideration in determining whether it is necessary to make an order.
[30] As to the evidence of Ms Howell, to which I have referred, her evidence is, as the Crown points out, focused on distress and psychological condition which is a matter which may be covered under subsection (d) but is not the subject of an application under s 8(1)(c).
[31]    As to Professor Cunneen's views, the evidence given by him was that there was a risk, which was not a fanciful risk, of a potential for violence to follow social media posts. He agreed that the examples that he had given in his report of what might be thought to be vigilante actions could not be definitively linked to such media posts.
[32]   I accept the Crown's submission that Professor Cunneen's evidence does not establish a real risk of vigilante actions to the applicant or any person arising from a recurrence of any social media activity or publicity about him. To put it another way the applicant has not discharged the onus of proving that it is more probable than not that social media posts would cause a real risk to the safety of the applicant or any other person.”
[Emphasis added.]

His Honour addressed the wheel incident at [33]-[35]. This analysis will be considered separately below. His Honour expressed his conclusions for dismissing the application as follows:

“[36] As the Crown acknowledges, there had been some incorrect and inflammatory material published in the media and on social media. However there is no basis for concluding that any of that material is likely to lead to actual harm to the applicant or any other person. In short, my view is not dissimilar to that reached by the Court of Criminal Appeal in R v AB [(No 1)], notwithstanding the additional evidence which has been led on this Application. There remains no evidence of any action clearly directed to causing any harm or injury to the applicant, nor of any threats of harm made to his wife or children. This is so notwithstanding that the information as to his identity has remained freely available. I have therefore, notwithstanding the significantly expanded amount of evidence, come to the same view as that reached by Meagher JA; namely, that I am not satisfied that there is a real risk of physical harm to the applicant or his family which presently exists and would be minimised or avoided by a non-publication order.
[37] I am not satisfied that any further publication of information identifying the applicant would be likely to produce any different response from that which may have occurred in late 2017. I have not, in the course of these ex tempore remarks delivered at the conclusion of submissions, dealt with every point taken in the voluminous written submissions, but I have dealt with the essential matters which led to the conclusion that the applicant has failed to establish a case under s 8(1)(c) and the motion will be dismissed.”

We do not accept that the summary in [27] above accurately states the findings of the Court in R v AB (No 1). However, as the present application was put on the basis of s 8(1)(c) alone, it is not necessary to address other possible grounds.

Consideration

The alleged error in failing to apply s 8(1)(c)

As set out above, the ground under s 8(1)(c) is made out if the order is “necessary to protect the safety of any person”. Basten JA’s analysis of the word “necessary” in the context of s 8 in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim at [46] (Bathurst CJ agreeing at [8], Whealy JA agreeing) relevantly states the correct approach to be taken. His Honour said:

“The meaning of ‘necessary’ depends on the context in which it is used. Ins 8(1), it is used in relation to an order of the court, or, in practical terms, aproposed order, because it identifies a standard as to which the court must besatisfied before making an order. In each paragraph of that provision, the word “necessary” is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In par (a), the purpose of the order will be ‘to prevent prejudice to the proper administration of justice’. That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree: the proposed order may diminish a risk of prejudice or it may obviate the risk entirely. All of these variables may affect what is considered ‘necessary’ in particular circumstances.”

The authorities have considered two possible approaches to the interpretation of s 8(1)(c), the so-called “calculus of risk” approach and the “probable harm” approach. The calculus of risk approach requires the court to 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. The second postulated interpretation, the probable harm approach, requires an applicant to prove that, in the absence of an order, it would be more probable than not that the relevant person would suffer harm. The calculus of risk approach has been specifically adopted in AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6 at [14] (Nettle J); Hamzy v R [2013] NSWCCA 156 at [60] (Harrison J) and Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36 at [16]-[17] (Besanko J). The question of which approach was the correct one did not need to be decided in D1 v P1 at [55] (Bathurst CJ, McColl JA and McClellan CJ at CL agreeing).
The differences between the two approaches can be illustrated by the following example. The probable harm approach would require an applicant to prove that death threats made to him or her would be likely to be carried out. Under the calculus of risk approach the nature of the harm (death) would carry weight in the calculus of risk which would have the effect that it would not be necessary for the court to be satisfied that it was probable that the threats would be carried out. The fact that the possible harm was so serious would lead to the court’s being satisfied under s 8(1)(c) that an order was necessary in circumstances where it could not be said to be probable that the threats would be carried out.

We regard the statement extracted from Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim at [46] as consistent with the calculus of risk approach. We do not consider the second approach to be consistent with the words of s 8(1)(c). 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.”

In the present case, the Court below purported to adopt the probable harm approach and required the applicant to prove that the social media posts would probably cause a real risk to safety as the highlighted passage in [32] of its reasons set out above indicates. It is implicit in his Honour’s reasons that he focussed on physical safety. At [30], the Court below characterised the evidence adduced by the applicant from Ms Howell as focussing on “distress and psychological condition”, which his Honour found was not the subject of an application under s 8(1)(c). It is plain from this paragraph of the reasons that his Honour failed to take account of the largely uncontroverted evidence adduced as to the risks of physical and mental injury including the possibility of the applicant’s death (through suicide) or catastrophic harm (by attempted suicide) from aggravation of the applicant’s mental condition. His Honour also discounted the evidence that not making the order would seriously affect the applicant’s wife’s mental condition. The Court below was in error in not taking this evidence into account under s 8(1)(c). 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.
In the present case the risk to the applicant’s psychological safety had a real potential to affect his physical safety. The evidence that the publicity had given rise to suicidal ideation and caused the applicant to make plans for his own death was sufficient to require the Court below to consider whether the ground under s 8(1)(c) was made out. His Honour failed to do so. This matter alone is sufficient to warrant a grant of leave and oblige this Court to embark on a rehearing of the application to determine for itself whether a non-publication order ought be made.

Determining the application as on a rehearing

In order to determine the application as on a rehearing under s 14(5), it is necessary to summarise the evidence. It is convenient to do so by reference to the three categories set out above.

Evidence of the psychological condition of the applicant and his wife

The applicant submitted that the effect of the publicity on his and his wife’s mental health was established by the evidence of Ms Howell, who examined the applicant and, on occasions, his wife.

Ms Howell’s report of 6 April 2017

The first such examination took place on 14 March 2017 for the purposes of the sentencing hearing which was listed for 7 April 2017. Of the applicant’s presentation on 14 March 2017, Ms Howell said in her report of 6 April 2017:

“I did not observe any evidence of overt psychopathology that affected his capacity to participate in the assessment process. [The applicant’s] speech, thought content and affect appeared appropriate and his mood state normal. He was alert and oriented to time and place. Currently, [the applicant] is experiencing heightened feelings of anxiety and depression which appear situational and suggest he is experiencing a depressive disorder. There were no psychotic features evident in his presentation and he expressed no suicidal thoughts during interview.”

At the conclusion of her report Ms Howell noted that, although she considered that the applicant would meet the diagnostic criteria for a major depressive disorder, he denied thoughts of suicide.

Ms Howell’s evidence at the sentence hearing on 7 April 2017

In the sentence hearing, Ms Howell gave evidence that her assessment of the applicant’s depression was that it was “situational”. She opined that when “this” [the applicant’s sentencing] was resolved “elements of depression and anxiety will cease to be a big part of his life”.

Ms Howell’s report of 30 November 2017

Following the publicity referred to above, Ms Howell prepared another report on the applicant based on further material which included the affidavits of the applicant and his wife (which were prepared for the application for a non-publication order before North DCJ) and various newspaper articles. Ms Howell also conducted telephone interviews with the applicant and his wife on 30 November 2017. In her report, Ms Howell said:

“As a consequence of the publication of [the applicant’s] name and photograph, threatening telephone calls have been made to his home telephone number and a letter was received from Elders Rural Services Australia Pty informing him that they would no longer act as his stock agent or provide goods and services for his farm.
[The applicant] has a history of anxiety from childhood and earlier this year experienced diminished ability to concentrate, feelings of fatigue, loss of energy, feelings of worthlessness, diminished interest in his usual life activities and depressed mood. He denied thoughts of suicide and did not have a plan to kill himself. At the time, it was my view that [the applicant] met the diagnostic criteria for a major depressive disorder.
Following receipt of the letter from Elders Rural Services Australia Pty [the applicant] experienced suicidal ideation and considered killing himself on his property going so far as to consider how he would kill himself. When he did not return home around his usual time, [the applicant’s wife] and his son began searching for him telling him later they feared he had committed suicide. [The applicant] stated that he seriously considered suicide due to the severe stress and embarrassment the current situation is causing his family and himself.
[The applicant’s wife] spoke of her feelings of fear following a threatening telephone call to their home saying she felt compelled to shield [the applicant] from the telephone call because she was worried about his current mental health and the very real possibility he would commit suicide.
The publication of [the applicant’s] name and photograph has caused a severing of essential connections with his immediate group and has impacted negatively on his identity as a respected farmer and his meaningful role as a father who both contributed and participated in his community.
. . .
Identity is not just what you know, it is also how you know. People are not born with an identity, rather, identity is something that evolves over time. [The applicant] identifies himself as a loving husband and father, a respected farmer and member of The Truth Church. In the past week he has lost his connection with his sense of belonging, his livelihood and meaningful role within his community. He has observed the negative and traumatizing effects on his wife and children through the publication of his name and photograph that has led to a loss of hope and positive sense of future. This has caused significant stress, anxiety, feelings of depression and suicidality for [the applicant].”

Observations made by the applicant’s solicitor on 14 June 2018

In an affidavit sworn on 4 July 2018 in support of the application for the second non-publication order, the applicant’s solicitor, Brendan Dunstan deposed of his observations when meeting with the applicant on 14 June 2018 as follows:

“. . . I observed [the applicant] at one stage to be crying and distressed. [The applicant] said words to me to the effect of ‘I am a mess… I cannot take much more of this pressure… do they want me to kill myself…is that what that [sic] want’. I understood these words to refer to the sense of pressure [the applicant] was feeling at the prospect of the imminent lifting of the December order. From my observations of [the applicant] on 14 June 2018, I believe [the applicant] was genuinely expressing a contemplation of suicide or a concern that he would in the near future contemplate suicide.”

Ms Howell’s report of 4 July 2018

The applicant and his wife engaged in clinical interviews with Ms Howell on 25 June 2018 for the purpose of her providing a report to be served with the applicant’s notice of motion for a second non-publication order. Ms Howell described the applicant’s mental state at the time of the interview as follows:

“[The applicant] has a history of anxiety throughout his childhood and is currently experiencing heightened feelings of anxiety, depression and stress that affect his capacity to concentrate accompanied by feelings of fatigue, worthlessness and a diminished interest in his life. [The applicant] was unaware, at the time he experienced suicidal thoughts, of the effect of his behaviour on [the applicant’s wife], daughter . . . and son. . . . [The applicant] does not have an active plan to kill himself and does not believe he is currently experiencing suicidal ideation. However, he has thought of killing himself on several occasions in the past months.
His feelings of depression, anxiety, stress and on occasion suicidal ideation are linked to the frequent aggressive harassment he and his family have been subjected to and the social ostracism from longtime neighbours who no longer acknowledge or speak to him and who have told him ‘never’ come onto their property again.
[The applicant] and [the applicant’s wife] have experienced frequent abusive and threatening telephone calls and multiple hang up calls. [The applicant’s] children have informed him of erroneous information posted online that includes his age being listed as that of an adult at the time of the offences; being a ‘clergyman’ at the time of the offences; and described as the ‘worst paedophile ever’ by the family of one of the victims.
[The applicant] said he has felt ‘sick’, ‘depressed’ and ‘helpless’ by his wife and children's exposure to the abusive telephone calls and social isolation. [The applicant] understands the behaviour is primarily directed toward himself, however, is unable to protect his family from exposure to the abuse. He stated he feels responsible for the emotional and physical harm they are experiencing. He has not responded to any of the comments made to him directly, or left on his answering machine and posted online.
. . .
It was my view that [the applicant] meets the DSM-V criteria for a Major Depressive Disorder. He has experienced depressed mood for more than two weeks; a loss of interests and pleasure in daily activities; impaired functioning; and experiences daily symptoms including: depressed mood nearly every day as indicated by both subjective report (feels sad and empty) and observation by [the applicant’s wife] (that he is often tearful); fatigue and loss of energy; feelings of worthlessness; diminished ability to think and concentrate; and thoughts of death and suicide.
. . .
[If the publicity recurred] I would hold fears for [the applicant’s] mental health and the physical, emotional and psychological safety of his family. The period of time [the applicant and his wife] have been subjected to various forms of threats and harassment have taken a toll both physically and mentally on them.
. . .
[The applicant and his wife] own a . . . vehicle. When their daughter . . . drove the vehicle into Dubbo it appears an unknown individual loosened a front wheel. When she was driving back to the farm and turned a corner, following a stop sign, the ‘studs’ were stripped and the car sustained a ‘broken’ axle. Both [the applicant and his wife] were extremely concerned about the potential risk of serious physical harm to their daughter. They believe had she been driving on the open road between Dubbo and the farm when the damage occurred she may have been physically harmed or killed.
This incident appears to highlight the risk of serious harm to [the applicant] and to his family, who may be unintentionally at risk of serious harm, through the behavior or actions directed primarily toward [the applicant].
It is my view that an order is necessary to protect the physical, emotional and psychological safety of [the applicant] and through their familial relationship with him, [the applicant’s wife, daughter and son].”

Ms Howell described the applicant’s wife’s mental state at the time of the interview as follows:

“[The applicant’s wife] spoke of her chronic feelings of ‘fear’ in relation to the frequent telephone calls to their home saying she feels compelled to ‘shield’ [the applicant] from the calls because of worry for his current mental health and the very real possibility he could commit suicide. [The applicant’s wife] stated she does not believe she and her children would cope if [the applicant] committed suicide.
. . .
[The applicant’s wife] stated that she ‘fears’ for her own and [the applicant’s] safety as they live alone on an isolated property and are vulnerable to anyone entering the property. [The applicant] and [the applicant’s wife] believe if the order is lifted it will lead to more acts of ‘sabotage’ with people coming onto their property as well as an increase in ‘threats’ of harm online. A number of threats already made have included threats to ‘shoot’ [the applicant].
. . .
[The applicant’s wife] said the effects of frequent and at times increased levels of ‘harassment’ has caused her to feel ‘empty’ and she worries it may ‘never end’. She experiences feelings of ‘anxiety’ and ‘loss’ in relation to her sense of safety within her family home; and the loss of her children who due to the overwhelming level of abuse have moved away from the farm. It is consoling to her that [the applicant’s son and daughter] live together as she believes they have been significantly harmed by the level of negativity and harassment directed towards the family.”

Ms Howell’s evidence in the Court below on 21 January 2019

Ms Howell was asked about when and in what circumstances the applicant had expressed suicidal thoughts to her. She gave evidence that after the publicity (in November 2017) suicide was “very much on [the applicant’s] mind”. She referred to the applicant’s concern for his wife and children and that “these things [the public reaction to the publicity] were making him feel that he was causing harm to his family and that they may be better off if he were not here”.
Ms Howell was also asked about the difference which suicidal ideation made to the diagnosis of major depressive disorder. She referred to an instance where the applicant had spoken to her of “genuine thoughts” of suicide. Although he did not disclose to Ms Howell that he had a “formulated plan in place” she concluded that “he was thinking along those lines at the time”. She described these thoughts as “high risk thinking, high risk behaviour if your thoughts are turning to how you could complete that”.

The applicant’s evidence in the Court below on 21 January 2019

The applicant’s evidence was consistent with what he had told Ms Howell as to the effect of the publicity on his mental state. The cross-examination about his mental state was brief and did not challenge his evidence in chief on that topic, as is apparent from the following exchange:

“Q.   You were concerned, aren’t you, that further publication will further embarrass you and cause you a feeling of shame and distress, is that right?
A.   Yes, but there’s a lot more to it than just that.
Q.   I’m not suggesting that it’s limited to that, but those things are matters of concern to you, aren’t they?
A.   Yes.”
[Emphasis added.]

Evidence of publicity in newspapers and social media and the relationship between the two

Mr Dunstan deposed in his affidavit of 4 July 2018 that he had been instructed that since the first non-publication order was made on 12 December 2017 the frequency and level of publication of the applicant’s identity had reduced and the frequency and level of harassing conduct directed at the applicant and his family had also reduced. He did, however, refer to the following events:

the applicant’s mailbox at the entry to his residence had been destroyed;

the applicant had been ostracised by members of the local community while going about his business in the local area, including at retail outlets;

members of the public have called the applicant a “dirty grub” when they have encountered him; and

the publication of Facebook posts, which referred to the applicant as “a devil” and belonging to a category of “sex creeps”, foreshadowing an intention to recommence a campaign against the applicant if and when the non-publication order is lifted.

The evidence before the Court below also included the Facebook post on 5 July 2018, extracted above, which threatened a worse “community backlash”.

“The admitted guilty predator continually utilises the system to protect himself (today again trying to appeal against releasing his name) . . . The community backlash against him will be much worse than if he had simply let the system work as it should last year.”

In his evidence, Professor Cunneen addressed the potential effect of lifting the non-publication order which had been in place since the first non-publication order was made. He said:

“64. I conclude that the evidence showing (a) the substantial history of online threats against AB, (b) the history of direct physical threats and actions against AB, (c) the link between social media and vigilante responses in other parts of Australia, demonstrates there is a real risk that vigilante-style action against AB and his family may be inspired by media and social media in the event of a suppression order being lifted.
65. Based on the evidence and reasoning presented in this Report, I conclude that if the suppression order is lifted media and social media are likely to further identify AB. There is an identifiable risk that this may result in:
the re-intensification of media and social media commentary on AB;
social media commentary that vilifies AB; and
social media commentary that condones and/or actively encourages actual physical harassment or violent actions against AB and potentially as a consequence his family.”

Professor Cunneen was required for cross-examination at the hearing in the Court below on 21 January 2017. He referred to the connection between “mainstream media”, which incorporates newspapers and other mass circulation publications and broadcasts, and social media. He gave evidence that social media tends to create an environment where one or more isolated individuals may be inclined to take vigilante action as a result of urgings on social media. He contrasted the present situation with the “pre-social media” era when vigilante action tended to be undertaken by organised vigilante groups. He said:

“[T]he environment that is created through the social media post, particularly the environment of the need to take direct action, the need to retaliate in some way against offenders who are not seen to be dealt with adequately by the Courts is widespread in these types of sites and as I've said a number of times now I don't think you can easily draw any simple causation with individual actions and the broader social media demands but what you can do, I think, is see that there is an environment that's created and the difficulty is from a prediction of risk, if you like, is that we're talking about large numbers of people, who we know very little about, and as I've mentioned, you know, they can be a number in the thousands or the tens of thousands and that is where the real possibility of the risk of violence occurring and I mean I don't think we can predict it but I think we can establish that there is a potential risk there.”

The wheel incident

As referred to above, on 25 November 2017, almost a week after the publicity commenced, the applicant’s then 21-year old daughter was driving the applicant’s vehicle in Dubbo shortly before 8am. The vehicle was usually driven by the applicant when he went to Dubbo once or twice a week but was also driven by his wife, and occasionally his daughter. The applicant’s daughter used the vehicle that morning as she intended to collect an item of furniture for her mother after she had finished work that day.
That morning, the applicant’s daughter drove the 40km from their property to Dubbo without incident. The road was sealed and mostly straight. She drove at or around 100kph (the relevant speed limit) for most of the trip. She parked the vehicle in the carpark of a shopping centre in Dubbo and went into the supermarket. The vehicle was unattended for no more than ten minutes. On her return she did not notice anything different about the vehicle. She drove out of the carpark and turned right and then left. At the next intersection she stopped at a stop sign. As she attempted to turn right she tried to change gears and heard a big clunk. She said that the vehicle “jumped and moved about in a strange way” and pulled to the left. She pulled over to the side of the road but could not detect the source of the problem. She tried to put the vehicle in first gear but found that it would not move out of neutral.
The applicant’s daughter called the NRMA, which came to the scene. As the vehicle could not be repaired in situ, it was towed to the local dealership.

Mr Willcockson’s evidence

On 26 November 2017, the applicant phoned Mr Willcockson, a family friend who was also a qualified mechanic and machinery repairer, and asked him to go to the dealership and inspect the vehicle. Mr Willcockson’s uncontroverted evidence was that, in the course of the conversation, the applicant told him that the tyre on the vehicle had recently been refitted and that he assumed that the tyre fitters had not tightened the nuts up properly. Other evidence, which was also uncontroverted, established that the tyre had been refitted on 9 November 2017 following a puncture. Mr Willcockson’s evidence was that he asked the applicant how many kilometres he had driven since the tyre was refitted, to which the applicant answered, “we have been to town around 4 times and out to Wellington once, probably 400 kilometres or more”. Mr Willcockson expressed the view to the applicant in the conversation that the tyre fitter would not be at fault because of the distance travelled since the tyre was refitted.
Mr Willcockson went to the dealership and spoke with Bruce Jones, the manager, who also expressed the view that the distance could not have been travelled if there was any fault in the fitting of the tyre on 9 November 2017. Mr Willcockson’s view was that “the wheel nuts must have been loosened by a third party” and that “it is highly unlikely that the tyre fitters left the wheel nuts loose.” He considered that his conclusion was also supported by the minimal damage to the wheel studs. He said that:

“My view is that a third party has loosed [sic] the wheel nuts on the left and real [sic, rear] wheel of the [applicant’s vehicle] very close to the day of the failure of the wheel. My opinion is that the [applicant’s vehicle] would have only travelled a very short distance if they had been deliberately loosened but not removed.”

In cross-examination, Mr Willcockson was asked about the minimum mileage over which the vehicle could have been driven with the studs either absent or loose. He answered that “it wouldn’t have been very long”. He added, “I doubt that that vehicle would have made [the applicant’s] property going from the tyre company. I would have doubted that he would have made it home”. He confirmed in re-examination that the distance between the applicant’s property and the tyre company was 57km and that if the tyre had not been fitted properly on 9 November 2017, the vehicle “wouldn’t do 400 ks” before failing.

Mr Jones’ evidence

Mr Jones’ evidence was:

“It is my opinion based on approximately 40 years of experience in the industry as a tyre fitter and manager, that for all the wheel nuts on the tyre/wheel assembly of the [applicant’s vehicle] to come loose at the same time after approximately three (3) weeks after the last work was performed on the [applicant’s vehicle] by us, that the wheel nuts would have to have been tampered with by an unknown person.”

Mr Jones opined that the sudden catastrophic failure of the wheel is not consistent with normal slight slackening of the wheel nuts after puncture repair.
Mr Jones said that the person who had repaired the puncture on the tyre of the applicant’s vehicle on 9 November 2017 was called Nathan. Mr Jones said that Nathan no longer worked for his business because, although he was a good worker, there was insufficient work to justify retaining him. Nathan was not called to give evidence.

Mr Granger’s evidence

Mr Granger, a qualified automotive mechanic, gave evidence that the vehicle was delivered to his business in November 2017 after the wheel came loose. When the wheel was removed for examination, Mr Granger saw that the brake drum had moved and bent the brake shoes and backing plate. The wheel itself was damaged beyond repair. The wheel and the whole axle assembly of the left hand rear side had to be replaced. In his affidavit he deposed that it was unusual for all the wheel nuts to come off a wheel at the same time. He based his view on the premise that the vehicle had travelled some 400km before the wheel failed. Mr Granger accepted in cross-examination that it was not possible to predict with any degree of certainty how long it would take loose wheel nuts to cause a wheel to fail.
Mr Granger considered that, even if nuts have not been properly tightened by the tyre fitter, they would usually come off one at a time. In Mr Granger's expert opinion, wheel nuts do not usually come off all at once without human intervention. This would be particularly the case because vehicles such as the applicant’s have relatively long wheel studs. If the wheel nuts were simply progressively loosening (or had not been properly tightened by the tyre fitter) the wheel rim would start to flex and cause wheel wobble or shake noticeably to the driver as the nuts worked their way down the thread.

The evidence of the applicant and his wife

Neither the applicant nor his wife noticed anything wrong or untoward with the vehicle before the incident of 25 November 2017. At the time they were cross-examined in January 2019 neither could recall particular trips they had undertaken in the applicant’s vehicle in the period 9-25 November 2017.

The applicant’s submissions before the Court below

The applicant submitted that there were three possible opportunities for a person or persons unknown to interfere with the vehicle: first, in the short period of time that the vehicle was parked at the shopping centre on 25 November 2017; second, if the applicant or his wife had earlier that week driven the vehicle into Dubbo; or third, while the vehicle was garaged on their property.
The applicant submitted that in either of the first two cases it was possible that the vehicle was recognised as the applicant’s when it was in Dubbo and that the applicant was targeted for attack after having been identified with the proceedings in the media and on social media. In the third case, it was possible that the vehicle was interfered with without the applicant or his wife, who are hard of hearing, being able to hear the dogs barking to indicate the presence of an intruder.
It was submitted on behalf of the applicant, in this Court and the Court below, that tampering with the wheel of a vehicle in any circumstances creates a risk of death or injury to the driver, passengers and other road users or persons near the roadway. This is particularly the case in country areas where speed limits are usually 100kph. Removal or loosening of wheel nuts means the wheel may fail when, as in this instance, the vehicle is turning at an intersection or is cornering, increasing the likelihood of loss of control and collision with another vehicle.
The findings of the Court below on the wheel incident were as follows:

“[33]    As to the incident involving the wheel of the [applicant’s vehicle], the opinions expressed by the witnesses were based on the assumption that the vehicle had travelled 400 kilometres since the tyre was replaced.
[34]    However, there is, as the Crown submits, no evidence of that other than a suggested hearsay conversation sometime after the event. The applicant himself could not recall whether he had travelled into Dubbo in accordance with his usual practice on a number of Thursdays during November 2017. The Crown takes a legitimate Jones v Dunkel (1959) 101 CLR 298 point in relation to the failure to call the person named Nathan who actually did the tyre repair. I was not favourably impressed by the evidence as to why he had not been spoken to about this matter. There was no evidence of his unavailability, it would be expected that he be called by the applicant, and he is certainly a person who could have shed light on the question, recalling the tests set out by Glass JA in Payne v Parker (1976) 1 NSWLR 191, 201.
[35]    Notwithstanding the asserted belief of all concerned that this had been a result of some miscreant who had interfered maliciously with the vehicle there was no report of it to the Police. I am not satisfied that the incident involving the vehicle was related to any publicity relating to the applicant.”

Fact-finding by this Court for the purposes of the de novo hearing

Because the Court below had the advantage of seeing and hearing the witnesses who were called at the hearing of the applicant’s application, this Court must give appropriate deference to his Honour’s findings of fact where they reflect this advantage, unless it appears that he has misused that advantage: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (Brennan, Gaudron, McHugh JJ); [1993] HCA 78.
We are satisfied, on the basis of the evidence of what has occurred in the past, that if a non-publication order is not made, the publicity which began on 19 November 2017 will recommence with the associated proliferation of misinformed views and threats of murder and serious violence directed at the applicant. In this event, the applicant’s psychological health will deteriorate, as it has in the past, which will create a substantial risk that he will experience suicidal ideation and kill himself. We are also satisfied that there is a substantial risk that the applicant’s wife’s mental health will be jeopardised if no order is made.
Having paid due regard to the findings of the Court below, we are satisfied that the wheel of the applicant’s vehicle came off because it had been interfered with by an unidentified person or persons who intended to cause him, or his family, harm. We do not consider that it was open to the trial judge to reject the evidence as to the distance the applicant’s vehicle had travelled in the period from 9 – 25 November 2017 when the applicant’s statement to Mr Willcockson on 26 November 2017 to the effect that he had travelled 400km in that period was not challenged. The applicant’s statement to Mr Willcockson was admissible as an exception to the hearsay rule under s 64(3) of the Evidence Act 1995 (NSW). Moreover, the objective probabilities favoured its accuracy: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at 129 (Gleeson CJ, Gummow and Kirby JJ). At the time the applicant gave the estimate of distance travelled to Mr Willcockson, he attributed the wheel failure to the tyre repair that had been conducted on 9 November 2017 and did not suspect that it was the result of tampering by a third party. Nor had he been privy to the views of Mr Jones, Mr Willcockson and Mr Granger that a distance travelled of 400kms was inconsistent with the wheel having failed because of anything that occurred on 9 November 2017 when the previous work had been done on the vehicle.
Nor do we consider that his Honour was entitled to draw an adverse inference against the applicant on the basis of Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. First, it could not be said that there could be an expectation that the applicant would call Nathan (the person who repaired the tyre on 9 November 2017). Secondly, there was no reason to consider that Nathan would be able to remember the job, particularly as he was no longer employed by Mr Granger’s business.
His Honour’s reference to the “asserted belief of all concerned that this had been a result of some miscreant who had interfered maliciously with the vehicle” paid insufficient regard to the fact that the evidence of Mr Willcockson, Mr Granger and Mr Jones was expert evidence. The only challenge made by the Crown to its reliability was to the premise on which each of the expert opinions was based: that the distance travelled between the repair of the tyre and refitting of the wheel on 9 November 2017 and the wheel failure on 25 November 2017 was 400km. Once this integer is accepted as having been established (as it ought to have been, for the reasons given above), the basis for the unanimous expert opinions was proved: Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65. In these circumstances, the Court below was effectively obliged to accept the consensus of expert opinion since it was relevantly unchallenged and there was no good reason to reject it. That the matter was not reported to police did not rationally undermine the hypothesis established by the expert evidence and the contemporaneous estimate of the applicant as to distance travelled.
In the circumstances of the present case, it is at least reasonably possible, if not probable, that such identified person or persons was or were motivated to tamper with the applicant’s vehicle by the publicity referred to above, thereby creating a risk of serious harm to the physical safety of the applicant, any other users of the vehicle and other road users or pedestrians.
In these circumstances, it is not necessary for this Court to attempt to quantify, even if it were possible to do so, the potential for vigilantes, inflamed by the excesses of social media, to take action to implement the numerous threats made through such posts. It is sufficient to say that the threats of murder cannot be dismissed, as the Crown submitted they ought to be, as idle “venting”.

Open justice

As referred to above, s 6 requires this Court to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
The public interest in open justice is served by reporting of court proceedings and their outcomes. Open justice normally requires the identity of the offender to be revealed. The media, when it reports such proceedings fairly and accurately, deserves the description that it is the eyes and ears of the public. This is why fair and accurate reporting of court proceedings is protected and why, as Spigelman CJ said in John Fairfax Publications Pty Limited v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324 at [20]:

"Nothing should be done to discourage fair and accurate reporting of proceedings."

In the present case, the “reporting” of the proceedings by the Daily Telegraph was neither accurate nor fair and contained information or imputations that were significantly misleading and emotive. Its reports were further distorted on social media.
The only relevant effect that a non-publication order would have in the present case is to prevent the further identification of the applicant and his family in connection with these proceedings with the aim of eliminating or minimising vigilante conduct engendered by the misreporting of the proceedings.
The Crown submitted that open justice was necessary for the sentencing principles to have full effect. It submitted that the denunciation of the applicant’s conduct, which s 3A(f) of the Crimes (Sentencing Procedure) Act identifies as one of the purposes of sentencing, “would be subverted by the granting of a non-publication order in this matter”. In order to deal with this submission, it is necessary to address the imposition of sentences in the context of a system of institutionalised justice.
Institutionalised justice is based on the principle that crime is dealt with by the courts and offenders are tried by the appropriate authorities (in this case, the Crown). When convicted, offenders are sentenced in accordance with applicable legislation and established law: Barlow v R[2008] NSWCCA 96; (2008) 184 A Crim R 187 at [2] (McClellan CJ at CL) and at [40] (Hall J). It is the Crown which acts, on behalf of the community, to prosecute persons accused of criminal offences, to make submissions on sentence and, if applicable, to decide whether to appeal against the sentence imposed. The Crown acts on behalf of the community through the Director of Public Prosecutions. The role of the victim or victims of the crime is generally limited to giving evidence in the prosecution case. They are usually informed as to the progress of the case and the sentence imposed and may, in certain cases, provide victim impact statements which can be taken into account in specified circumstances: Part 3 of Division 2 of the Crimes (Sentencing Procedure) Act. Institutionalised justice is to be contrasted with retributive justice where victims and their families are responsible for avenging crimes committed against them. Retributive justice leads to a never-ending cycle of crime.
The relevance of extra-curial punishment to sentencing is another aspect of institutionalised justice. Extra-curial punishment is “punishment that is inflicted upon an offender otherwise than by a court of law”: R v Wilhelm [2010] NSWSC 378 per Howie J at [21]. The sentencing court may take into account extra-curial punishment (whether it has been inflicted before the sentence hearing or is likely to follow it such as when, for example, a licence or other permission will inevitably be forfeited) to ensure that an offender’s sentence is not excessive. It is ultimately for the court to impose an appropriate sentence.
The concept that the sentence itself is to constitute the punishment is also reflected in the way prisoners are kept in custody. Where there is a particular risk that other prisoners might attack or kill an offender because of the nature of the crimes the offender has committed (typically child sex offences), the offender is kept in protective custody so as to safeguard the offender against this risk.
While the public denunciation of the offender’s conduct incorporated in a sentence may be reflected in the way the offender is treated in the community, the law has always recognised that the identification of the offender is not an absolute requirement. For example, where the identification of the offender would inevitably lead to the identification of the victim, the preservation of the identity of the victim tends to prevail. The community response in the present case, which appears to have been fuelled by the misleading and emotive publicity, goes far beyond merely avoiding or ostracising the applicant.

In the present case, the message disseminated by the purveyors and contributors of the publicity in the media and social media was: the court has imposed an inadequate punishment, namely, a suspended sentence and therefore it is up to the community to “make up” the punishment by vigilante behaviour to ensure that it is sufficient to fit the crime. This message is antithetical to institutionalised justice. As referred to above, the sentence imposed by North DCJ was accepted by the Crown at the sentencing hearing to be open to the sentencing judge. The Crown, which has a right to appeal against a sentence on the ground of manifest inadequacy, chose not to appeal against the sentence.
As the only ground contended for by the applicant was the ground under s 8(1)(c), it is not necessary to address the question whether a non-publication order would also be necessary to protect the administration of justice under s 8(1)(a). For the reasons given above, we do not consider that a non-publication order protecting the identity of the applicant and his family would compromise the public interest in open justice to any material degree.

Whether an order is necessary

The Crown submitted that a non-publication order was not necessary as the applicant had not sought treatment for his depression and had not sued for defamation. The Crown was unable to point to an authority which suggested that an applicant for an order had a duty to mitigate. We do not consider that any such duty ought be imposed since it tends to distract attention from the real question. We respectfully accept what Meagher JA said in R v AB (No 1) at [42], which was quoted by the Court below in [28] of its reasons, that s 8 “directs 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.”
Ms Heath, who appeared for the applicant, informed the Court, with the consent of the Crown, that the applicant has recently found a general practitioner with whom he feels able to talk and has started on a course of antidepressant medication. This step does not make the order less necessary. It would be distinctly unjust to require a person in the applicant’s position to take particular steps to obtain treatment as a pre-condition of the making of an order: see, in a different context, Stills v State of New South Wales [2019] NSWCA 4 at [172] (Sackville AJA, Payne JA and Simpson AJA agreeing).
We reject the suggestion that the bringing of defamation proceedings could make an order under s 8 unnecessary. Although injunctions may be made in the course of defamation proceedings to restrain publication of the matter complained of, the usual relief in such proceedings is damages. Injunctive relief would be plainly inadequate in the instant case where the communications are diffuse and, except in the case of identifiable broadcasters and publishers, posted by individuals who cannot be identified. We are not persuaded that there are alternative actions that might be taken in response to the risk which might achieve the same outcome as the making of a non-publication order.
These findings are sufficient to satisfy us that an order under the Act is “necessary to protect the safety of a person”, being, in this case, the applicant, within the meaning of s 8(1)(c) of the Act. There is a significant risk that, if an order is not made, others might act to imperil the applicant’s physical safety and psychological well-being, the psychological well-being and safety of his wife and the physical safety of his children.

Whether the order ought be made

The Crown submitted that there was no utility in making an order, even were this Court to be satisfied that it was necessary because “the horse had bolted” since the applicant’s identity had already been revealed. The Crown contended that this Court had a discretion whether to make an order, even if the ground under s 8(1)(c) had been made out.
We accept the applicant’s submissions that there is utility in making the non-publication order because it will tend to have a dampening effect on publicity which identifies the applicant even if it will not be completely effective to eradicate it. Further, we respectfully adopt the statements of Basten JA in Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340 at [25] (Meagher JA agreeing at [139]) that:

“[T]he fact that the [suppression] orders, in their terms, may have been ineffective to stop the scandalising behaviour is not a reason for not making them.”

Irrespective of its utility, we consider that once we are satisfied that the order is necessary, it ought be made. As the High Court said in Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 of the analogous provision, s 50 of the Federal Court Act 1976 (Cth) at [33]:

“It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a ‘discretion’ when entertaining an application under s 50. Once the court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the court to be necessary to make an order to prevent prejudice to the security of the Commonwealth.”
[Footnotes omitted.]

This passage was cited with approval by the Court of Appeal in Rinehart v Welker (2016) 93 NSWLR 311; [2011] NSWCA 403 at [48] (Bathurst CJ and McColl JA) in support of the proposition that a decision to make a non-publication order under the present Act is not a discretionary one.
We are required to specify the ground on which the order is made. For the reasons given above, we are satisfied that the order is necessary under s 8(1)(c) of the Act. Section 12 requires this Court to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made. The applicant, in his notice of motion, has sought an order for twenty years. As we are not satisfied that it is possible to specify a shorter time by which the order will no longer be necessary, we propose to make the order for that period.

Orders

For the reasons given above, we make the following orders:

Grant leave to appeal against the decision of Williams SC DCJ on 23 January 2019 to refuse to make a non-publication order in respect of the applicant’s identity.

Allow the appeal.

Order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW):

that the applicant be referred to by the pseudonym AB.

that publication of any information:

tending to reveal the identity of AB, a party to these proceedings, in connection with these proceedings or in connection with the evidence given in these proceedings or in connection with information about evidence given in these proceedings; or

tending to reveal the identity of AB's spouse or children in connection with these proceedings or in connection with the evidence given in these proceedings or inconnection with information about evidence given in these proceedings;

be prohibited.

Order (3) shall apply:

to all media including but not limited to print, radio, television, internet and social media;

anywhere in the Commonwealth;

until 20 years from the date of this order.

Order (3) is made on the ground under s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the order is necessary to protect the safety of any person, namely, AB and AB’s spouse and children.

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Decision last updated: 08 March 2019

Medium Neutral Citation:	AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46
Hearing dates:	20 February 2019
Decision date:	08 March 2019
Before:	Hoeben CJ at CL at [1]; Price J at [1]; Adamson J at [1]
Decision:	(1) Grant leave to appeal against the decision of Williams SC DCJ on 23 January 2019 to refuse to make a non-publication order in respect of the applicant’s identity. (2) Allow the appeal. (3) Order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW): (a) that the applicant be referred to by the pseudonym AB. (b) that publication of any information: (i) tending to reveal the identity of AB, a party to these proceedings, in connection with these proceedings or in connection with the evidence given in these proceedings or in connection with information about evidence given in these proceedings; or (ii) tending to reveal the identity of AB's spouse or children in connection with these proceedings or in connection with the evidence given in these proceedings or in connection with information about evidence given in these proceedings; be prohibited. (4) Order (3) shall apply: (a) to all media including but not limited to print, radio, television, internet and social media; (b) anywhere in the Commonwealth; (c) until 20 years from the date of this order. (5) Order (3) is made on the ground under s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the order is necessary to protect the safety of any person, namely, AB and AB’s spouse and children.
Catchwords:	CRIMINAL PROCEDURE – suppression and non-publication orders – appeal against decision not to make non-publication order – leave granted on grounds that court below materially misconstrued s 8(1)(c) of Court Suppression and Non-Publication Orders Act 2010 (NSW) by adopting probable harm test – calculus of risk approach adopted CRIMINAL PROCEDURE – suppression and non-publication orders – rehearing under s 14(5) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) – evidence of risk of physical harm to the applicant – evidence of significant psychological harm to applicant and applicant’s family – order necessary to protect the safety of the applicant – circumstances of misreporting by media and threats to applicant – orders made
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15D Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 10, 12, 13, 14 Crimes (Sentencing Procedure) Act 1999 (NSW), s 12, Pt 3, Div 2 Evidence Act 1995 (NSW), s 64 Federal Court Act 1976 (Cth), s 50 Interpretation Act 1987 (NSW), s 33
Cases Cited:	AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6 AB (A Pseudonym) v The Queen [2018] HCATrans 134 (25 July 2018) Barlow v R [2008] NSWCCA 96; (2008) 184 A Crim R 187 D1 v P1 [2012] NSWCA 314 Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78. Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hamzy v R [2013] NSWCCA 156 Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 John Fairfax Publications Pty Limited v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 R v AB (No 1) [2018] NSWCCA 113 R v AB (No 2) [2018] NSWCCA 148 R v Wilhelm [2010] NSWSC 378 Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65 Rinehart v Welker (2016) 93 NSWLR 311; [2011] NSWCA 403 Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36 Stills v State of New South Wales [2019] NSWCA 4
Category:	Principal judgment
Parties:	AB (Applicant) Regina
Representation:	Counsel: P Barrett/B Baker (Crown) V Heath (Applicant) Solicitors: Director of Public Prosecutions (NSW) (Crown) Brendon Dunstan Solicitor (Applicant)
File Number(s):	2015/281608
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 23 January 2019 Before: Williams SC DCJ File Number(s): 2015/281608