AXR (a pseudonym) v The Queen (No 2)

[2023] NSWCCA 113

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

AXR (a pseudonym) v R (No 2) [2023] NSWCCA 113

Hearing dates:

On the papers

Date of orders:

19 April 2023

Decision date:

18 May 2023

Before:

Adamson JA at [1]; Garling J at [7]; Button J at [8]

Decision:

(1) Pursuant to s 7(a) and (b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”) and upon the grounds that:

a.   the order is necessary to protect the safety of any person; and/or

b.   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,

there be no publication of the parts of the Court's judgment delivered on 7 December 2022, that reveal or would tend to reveal:

c.   the appellant's status as a police informant;

d.   the fact that the appellant had provided assistance to police; and/or

e.   the nature extent of that assistance;

with such order to apply for a period of 30 years from the date of these orders and throughout the Commonwealth of Australia.

(2)   In the exercise of the Court’s inherent jurisdiction, the appellant shall be identified in connection with these proceedings by the pseudonym “AXR”.

(3) Pursuant to s 7(b) of the Act and upon the grounds that:

a.   the order is necessary to protect the safety of any person; and/or

b.   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;

the Court makes the orders sought at paragraph 2 of the application by the Commissioner of Police, NSW Police Force in their application dated 19 December 2022 pursuant to s 7(a) and (b) of the Act and, further, that there be no publication of:

c.   the affidavit of the appellant sworn on 14 October 2022,

d.   the contents of this application to the extent that it reveals the matters that the appellant seeks to protect,

e.   the appellant’s written submissions dated 20 December 2022,

with such order to apply for a period of 30 years from the date of these orders and throughout the Commonwealth of Australia.

Catchwords:

NON-PUBLICATION ORDER — orders made to redact the judgment in order to protect the applicant’s identity due to assistance given to authorities — order necessary to protect the applicant’s safety

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 8, 12

Firearms Act 1996 (NSW)

Cases Cited:

AXR (a pseudonym) v R [2022] NSWCCA 257

Category:

Consequential orders

Parties:

AXR (a pseudonym) (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Odgers SC (Applicant)
C Curtis (Respondent)

Solicitors:
East Sydney Law (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

XXXX

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

XXXX

Before:

Hock DCJ

File Number(s):

XXXX

Judgment

1. ADAMSON JA: On 7 December 2022, this Court made orders dismissing AXR’s appeal and provided its reasons for decision to the parties. This Court deferred publication of the reasons for decision until AXR’s application dated 19 December 2022 for non-publication orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) had been determined. Ultimately, a redacted version of the Court’s decision was published on the Judicial Information Research System (JIRS) as a restricted judgment: AXR (a pseudonym) v R [2022] NSWCCA 257.

2. The redacted version reflected this Court’s satisfaction that the redactions were necessary within the meaning of s 8 of the Act. Non-publication orders pursuant to the Act were made by the Court on 19 April 2023 (as set out at the conclusion of these reasons).

3. The Court’s reasons for making the orders are as follows. AXR applied for leave to appeal against a sentence imposed on him by Hock DCJ (the sentencing judge) in 2021. His sole ground of appeal was that the sentence was manifestly excessive, principally on the basis that inadequate weight had been given to the circumstance that he was prepared to hand in to police the weapons which were found in his possession and which comprised an offence of possess firearm while subject to a Firearms Prohibition Order under the Firearms Act 1996 (NSW). The reasons of the Court (which dismissed the appeal) set out the assistance which AXR had provided and was prepared to provide to police as an informant, as well as the discount that the sentencing judge had allowed for such assistance. This Court accepted that a non-publication order was necessary not only to protect AXR’s identity from disclosure in order to protect his safety (s 8(1)(c) of the Act) but also because the public interest in preserving the identity of police informants outweighed the public interest in open justice (s 8(1)(e) of the Act).

4. Section 12(2) of the Act requires the Court to ensure that the non-publication order operates for no longer than reasonably necessary to achieve the purpose for which it is made. This Court considered that the period of 30 years from the date of the order was no longer than reasonably necessary to protect AXR’s safety. The Court was also satisfied that it was necessary for the order to operate throughout the Commonwealth of Australia, in order to achieve its purpose.

5. The redacted version of the judgment has been published in a form which is designed to protect AXR’s identity. In this way, the public interest in open justice has been maintained to the extent reasonably possible, having regard to the bases on which the Court has found the non-publication order to be necessary.

6. For the reasons given above, the Court made the following orders on 19 April 2023:

1. Pursuant to s 7(a) and (b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”) and upon the grounds that:

a.   the order is necessary to protect the safety of any person; and/or

b.   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,

there be no publication of the parts of the Court's judgment delivered on 7 December 2022, that reveal or would tend to reveal:

c.   the appellant's status as a police informant;

d.   the fact that the appellant had provided assistance to police; and/or

e.   the nature extent of that assistance;

with such order to apply for a period of 30 years from the date of these orders and throughout the Commonwealth of Australia.

2. In the exercise of the Court’s inherent jurisdiction, the appellant shall be identified in connection with these proceedings by the pseudonym “AXR”.

3. Pursuant to s 7(b) of the Act and upon the grounds that:

a.   the order is necessary to protect the safety of any person; and/or

b.   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;

the Court makes the orders sought at paragraph 2 of the application by the Commissioner of Police, NSW Police Force in their application dated 19 December 2022 pursuant to s 7(a) and (b) of the Act and, further, that there be no publication of:

c.   the affidavit of the appellant sworn on 14 October 2022,

d.   the contents of this application to the extent that it reveals the matters that the appellant seeks to protect,

e.   the appellant’s written submissions dated 20 December 2022,

with such order to apply for a period of 30 years from the date of these orders and throughout the Commonwealth of Australia.

7. GARLING J: I agree with Adamson JA.

8. BUTTON J: I agree with Adamson JA.

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Decision last updated: 25 May 2023