AB v Director of Public Prosecutions

In AB v Director of Public Prosecutions, the respondent sought to appeal a decision of the Local Court, which had refused to grant a non-publication order concerning the arrest and prosecution of the appellant. The appellant had been charged with the murder of a co-accused in a case involving gangland activities. The appellant's case was notable due to the lethal retribution taken against other co-accused, resulting in death, and the strong temporal connection between these events and the publication of the appellant's arrest. The Director of Public Prosecutions argued that the publication of the appellant's arrest was necessary to maintain the principle of open justice, while the appellant contended that a non-publication order was required to protect their genuine safety concerns.

The court had to determine whether a non-publication order was warranted under the circumstances. This involved weighing the principle of open justice against the appellant's safety concerns. The court considered the appropriate approach to be the calculus of risk, which involved making an evaluative judgment about the necessity of a non-publication order. This required balancing the risk of harm to the appellant against the public interest in open justice. The court had to assess whether there was a real and substantial risk of serious harm to the appellant if their identity was published.

The court found that the open justice principle was paramount, but not absolute. The court emphasised that the principle of open justice was subject to exceptions where there was a compelling need to protect an individual's safety. However, the court concluded that the risk to the appellant was not sufficiently severe to warrant a non-publication order. The court found that the appellant had not demonstrated a real and substantial risk of serious harm that could not be mitigated by other means. The court also considered the impact of any non-publication order on the principle of open justice and the broader public interest.

The court dismissed the appeal and affirmed the decision of the Local Court. The court held that the Local Court had correctly refused the non-publication order. The court ordered that the publication of the appellant's arrest and identity was to proceed as per the usual protocols, subject to any other relevant legal constraints.