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.
(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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
AB (a Pseudonym) v The Queen (No 3) [2019] NSWCCA 46
Case
[2019] NSWCCA 46
Decision Date
CaseChat Overview and Summary
AB, referred to as a pseudonym, appealed a decision by the Supreme Court of New South Wales that declined to make a non-publication order under the Court Suppression and Non-Publication Orders Act 2010. The appeal concerned the suppression and non-publication orders that were sought to prevent the identification of the applicant, who was involved in a criminal case. The Supreme Court of New South Wales had declined to make the order, and the applicant sought leave to appeal, which was granted on the basis that the lower court misconstrued section 8(1)(c) of the Act by adopting a probable harm test instead of a calculus of risk approach.
The legal issues before the court were whether the lower court correctly interpreted section 8(1)(c) of the Act, and if not, whether the applicant demonstrated that a non-publication order was necessary to protect their safety. The applicant argued that the court below had misconstrued the legislative provisions by applying a probable harm test, whereas the correct approach was a calculus of risk. The applicant also submitted that there was a real risk of physical harm and significant psychological harm to them and their family if their identity was published, and that this risk warranted the making of a non-publication order. The Crown, on the other hand, maintained that the lower court's decision was correct and that the applicant had not met the threshold for such an order.
The court found that the lower court had indeed misconstrued the relevant section of the Act by applying the wrong test. Instead of a probable harm test, the court should have adopted a calculus of risk approach. The court considered the evidence presented by the applicant regarding the risk of physical and psychological harm, and the circumstances of misreporting by the media and threats to the applicant. The court determined that the non-publication order was necessary to protect the safety of the applicant. As a result, the appeal was allowed, and the matter was remitted to the Supreme Court for rehearing under section 14(5) of the Act. The court made orders to protect the safety of the applicant.