AB (A Pseudonym) v R (No 3)

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.