Darren Brown (a pseudonym) v The Queen (No 2)

[2019] NSWCCA 69

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69

Hearing dates:

15 March 2019

Date of orders:

05 April 2019

Decision date:

05 April 2019

Before:

Payne JA; Johnson J; N Adams J

Decision:

(1) Set aside the suppression orders of Culver DCJ made on 31 January 2019 and in lieu thereof order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW):
(a)   the appellant shall be identified in connection with these proceedings (including all proceedings in the District Court) by the pseudonym “Darren Brown” on the grounds that this order is necessary to protect the safety of one or more persons;
(b)   that publication of any information:
(i)   tending to reveal the identity of Darren Brown, 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 Darren Brown’s family 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;
(c)   the paragraphs of this Court’s judgment dated 21 November 2018 referred to at [40] of these reasons be redacted as described in [40]; and
(d)   the duration of this order be 20 years.

 

(2)   Order (1) 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.

(3) Order (2) 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, Darren Brown and Darren Brown’s spouse and family.

Catchwords:

CRIMINAL PROCEDURE – suppression and non-publication orders – application for suppression orders and pseudonym orders – where no application made by any party to close the Court or for suppression orders or pseudonym orders at hearing – where application for suppression orders and pseudonym orders made approximately one month after the judgment was published on the internet – whether order sought is futile or ineffective

 

CRIMINAL PROCEDURE – suppression and non-publication orders – whether order necessary to protect the safety of any person – where appellant fears for his safety and his family’s safety

 

CRIMINAL PROCEDURE – suppression and non-publication orders – whether order necessary to prevent prejudice to the proper administration of justice – whether 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 – whether the continuing availability of the judgment is detrimental to the administration of justice by discouraging co-operation with the authorities – where order sought that there be no publication of information which tends to reveal assistance to law enforcement authorities

  CRIMINAL PROCEDURE – suppression and non-publication orders – test of necessity – calculus of risk approach

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6, 7, 8
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23

Cases Cited:

AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; 93 ALJR 59
AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46
R v Fandakis [2002] NSWCCA 5
Cain v Glass (No 2) (1985) 3 NSWLR 230
Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643; [2007] NSWCA 366
Commonwealth Director of Public Prosecutions v Christian [2019] FCAFC 5
D1 v P1 [2012] NSWCA 314
Greentree v R [2018] NSWCCA 227
R v Cartwright (1989) 17 NSWLR 243
R v Smith (1996) 86 A Crim R 308
Matthews v R (No 2) [2013] NSWCCA 194
Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Category:

Principal judgment

Parties:

Darren Brown (a pseudonym) (Appellant)
Commissioner of Police (NSW)
Director of Public Prosecutions (NSW)

Representation:

Counsel:
E Kerkyasharian (Appellant)
P Singleton (Commissioner of Police (NSW) in written submissions)
M Higgins (Commissioner of Police (NSW) on 15 March 2019)
B Hatfield (Director of Public Prosecutions (NSW))

  Solicitors:
Matouk Joyner Lawyers (Appellant)
Crown Solicitor’s Office
Solicitor for Public Prosecutions

File Number(s):

2014/00336785

Publication restriction:

None

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Brown was the successful applicant in this Court in Brown (a pseudonym) v R [2018] NSWCCA 257. The reasons for decision were published in accordance with the usual practice of the Court on 21 November 2018. On 18 December 2018, the Court was informed that the parties proposed to make a joint application to redact parts of the already published judgment. On 19 December 2018, the Court removed the judgment from Caselaw and took steps to ensure that sites which re-publish judgments also took the judgment down.

The parties sought orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that there be no publication of information which:

(a)   tends to reveal the identity of the applicant (as a party to the proceedings); or

(b)   tends to reveal the applicant’s assistance to law enforcement authorities.

The parties also sought orders that there be no further publication of the un-redacted version of the judgment dated 21 November 2018.

The questions in this case, based on the grounds in subs 8(1)(a), (c) and (e) of the Court Suppression and Non-publication Orders Act, were whether:

(1)   “the order is necessary to prevent prejudice to the proper administration of justice”;

(2)   “the order is necessary to protect the safety of any person”; or

(3)   “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 held that:

A high threshold is imposed by “necessity” and it is not enough that the Court finds that the proposed order is convenient, reasonable or sensible. The Court must also consider whether the orders sought will be effective or lack utility. The correct approach to “necessity” is the “calculus of risk” approach: [26]-[27], [36]-[37].

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403; D1 v P1 [2012] NSWCA 314; AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46 applied.

Applying the “calculus of risk” approach, this was an appropriate case in which to make a pseudonym order and limited redactions of the principal judgment on the basis that a sufficiently serious potential risk to the applicant’s physical safety has been demonstrated: [38].

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

This case does not cast any doubt upon the settled procedure for dealing with cases involving assistance by a party being sentenced. The issue of assistance may be addressed in judgments of this Court without the use of a pseudonym or other redactions: [31]-[35].

R v Cartwright (1989) 17 NSWLR 243; Greentree v R [2018] NSWCCA 227 applied.

R v Fandakis [2002] NSWCCA 5; Cain v Glass (No 2) (1985) 3 NSWLR 230; Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643; [2007] NSWCA 366; Commonwealth Director of Public Prosecutions v Christian [2019] FCAFC 5 considered.

Applications for suppression and/or pseudonym orders must be promptly raised at a hearing rather than after publication of judgment. Parties and investigating officials should ensure that they properly communicate with each other and with the Court when seeking such orders: [13]-[14], [28], [34], [43]-[44].

Matthews v R (No 2) [2013] NSWCCA 194; Commonwealth Director of Public Prosecutions v Christian [2019] FCAFC 5 considered.

Judgment

1. THE COURT: On 21 November 2018, the Court published its principal decision in this matter and made the following orders:

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Matter remitted to the District Court for re-sentence.

4. Vary the order made in relation to the confidential affidavit on the file so that the sealed envelope may be opened by order of a judge of the District Court.

2. The matter had been heard by the District Court on 6 June 2016 and a sentence judgment delivered on 10 June 2016 containing the name of the appellant and all relevant details of his crimes. No application was made by any party for suppression orders or pseudonym orders in the District Court. That judgment was not, however, made available on the internet.

3. The appeal was heard by this Court on 26 September 2018. No application was made by any party to close the Court or for suppression orders or pseudonym orders. In accordance with the usual practice of the Court the judgment of the Court of Criminal Appeal was published electronically on the NSW Caselaw website (Caselaw) on the day it was handed down, 21 November 2018. The judgment, once published, was re-published widely in electronic form.

4. On 28 November 2018, the Court was informed for the first time (by email to the chambers of the presiding judge) that orders may be sought by the parties in the nature of suppression orders and/or pseudonym orders.

5. On 18 December 2018, the Court was informed (by email to the chambers of the presiding judge) that the parties proposed to make a “joint application” to redact parts of the already published judgment. On 19 December 2018, the Court removed the judgment from Caselaw and took steps to ensure that sites that re-publish judgments of the Court also take the judgment down. Orders were made for the filing of a motion, supporting evidence and submissions.

6. On 25 January 2019, a notice of motion was filed by the appellant seeking the following orders:

1. that pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) and upon the grounds referred to in s 8(1)(b) of the Act, that there be no publication of information which:

1. tends to reveal the identity of the applicant (as a party to the proceedings); or

2. tends to reveal the applicant’s assistance to law enforcement authorities; and

2. that pursuant to s 7 of the Act, there be no publication of the un-redacted version of the judgment dated 21 November 2018.

7. On 25 January 2019, the appellant filed an affidavit of the appellant’s solicitor, Ms van der Velde, sworn that day, annexing a version of the judgment marked with proposed redactions. The only matter of significance in that affidavit was that the appellant had expressed concern to Ms van der Velde for his safety and the safety of his family if the judgment remained on the internet.

8. On 30 January 2019, Mr Singleton, then counsel for the NSW Police, filed submissions and an affidavit of an Assistant Commissioner of Police, Mr Corboy, sworn that day.

9. On 31 January 2019, the appellant was resentenced in the District Court. Culver DCJ made the following orders, which were entered on JusticeLink:

“By consent, order for closed court as per attached notice of motion

By consent, orders for suppression and non-publication made as per attached notice of motion to apply throughout Australia until further order of the court”

10. Although nothing turns on it, it appears that her Honour actually made orders in handwriting as follows:

“Orders:

(1)    By consent, pseudonym order made as per attached Notice of Motion.

(2)    By consent, order for closed court made as per attached Notice of Motion.

(3)    By consent, orders for suppression and non-publication made as per attached Notice of Motion to apply throughout Australia until further order of the Court.”

11. The notice of motion her Honour referred to in order (3) was dated 31 January 2019 and provided:

“ORDERS SOUGHT

1.    This motion is returnable instanter.

2.    Until further order, these proceedings shall be conducted in the absence of the public.

3.    Until further order, without restricting the use in closed court of the accused’s true name and the name by which he has been indicted, the accused shall be known in connexion with these proceedings by the pseudonym “Darren Brown”.

4.    Until further order, on the ground that this order:

(a)    is necessary to prevent prejudice to the proper administration of justice,

(b)    is necessary to protect the safety of one or more persons, and

(c)    is otherwise necessary in the public interest, that interest significantly outweighing the public interest in open justice,

there shall be:

(d)    no publication of:

(i)    any information that tends to reveal, in connexion with these proceedings, the identity of the offender or any person related to or otherwise associated with the offender, or

(ii)    any information that comprises evidence, or information about evidence, given in these proceedings

(including, for the avoidance of doubt, the reasons for sentence delivered on 10 June 2018 and any other judgment of the Court in these proceedings), and

(e)    without limiting the operation of (d) – no disclosure, except for the proper purposes of these proceedings, of:

(i)    any information that tends to reveal, in connexion with these proceedings, the identity of the offender or any person related to or otherwise associated with the    offender, or

(ii)    any information that comprises evidence, or information about evidence, given in these proceedings

(including, for the avoidance of doubt, the reasons for sentence delivered on 10 June 2018 and any other judgment of the Court in these proceedings).”

12. It will be necessary to return to these orders as, unless amended or set aside, they plainly affect the subject matter of this application, namely the further publication of this Court’s decision.

13. It was submitted on behalf of the NSW Police that the “police were neither present nor represented when this matter was before this Court”. Whilst strictly correct, that statement is misleading by omission. The NSW Police were plainly aware of the appellant’s original sentencing hearing; the information described in our principal judgment contained a statement from a senior police officer. No suppression orders or pseudonym orders were sought at that hearing. Increasingly, sentencing judgments of the District Court are published on Caselaw. This enhances both transparency and access to justice. District Court judges in the discharge of their important functions are entitled to rely upon the parties, and the NSW Police, to make any application for a pseudonym order or the suppression of evidence prior to or at a hearing. In the present case the sentencing judge did not receive the help his Honour was entitled to expect from the parties or the NSW Police.

14. This Court on any appeal also relies upon the parties (and we include investigating officials in this description) to make any application for a pseudonym order or the suppression of evidence prior to or at a hearing. If the police harbour concerns, including any concern about the safety of a person in the criminal justice system, it is incumbent upon the police to communicate those concerns to those who appear in this Court, being the appellant’s legal representatives and legal representatives of the Crown. It is highly desirable that the Director of Public Prosecutions and the NSW Police establish a system to ensure that what occurred in this case does not happen again. The present highly sensitive approach by the NSW Police to disclosure, after all that has gone before, is to be contrasted with the absence of any expressed concerns at the time of the sentencing hearing or the hearing of the appeal.

15. In the present application, the NSW Police relied upon two alternative versions of the principal judgment with redactions and an explanatory note about the redactions. The first was a version heavily redacted to remove material. The second removed a more limited subset of material and suggested the adoption of a pseudonym. On 15 March 2019, at the hearing of the motion, leave was granted to the appellant to file an amended motion which relied instead upon subs 8(1)(a),(c) and (e) of the Court Suppression and Non-publication Orders Act in prayer 1. The NSW Police also provided an updated version of the original judgment containing the redactions sought. The appellant essentially supported the position of the NSW Police. The Crown neither joined in, nor opposed, the application.

Submissions of the parties

16. The appellant adopted the submissions of the NSW Police but made no substantive submission in support of the orders sought. The appellant’s representatives pointed out that until contacted by the Crown at the urging of the police after the judgment had been published, they were not aware of any safety concerns based on the judgment.

17. The principal submissions in support of making orders were made by counsel for the NSW Police. Counsel submitted that it was necessary for the Court to make orders for some restriction on publication of the judgment on the grounds of subs 8(1)(a), (c) and (e) of the Act.

18. It was submitted that orders were necessary because its publication without redaction would tend to discourage future assistance to the police “whether or not [the person the subject of the order is] harmed, but especially if harmed”. It was submitted that this case involved “great potential danger” to the appellant and that harm to the appellant was a “realistic possibility”.

19. It was submitted that the Court should exercise its jurisdiction to make orders because of the need to prevent unacceptable consequences.

20. It was submitted that a valid claim of public interest immunity will trump the open justice principle. It was further submitted that “the informer rule” has a “paramount” position “in the spectrum of public interest immunity and that is only outweighed ‘where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence’”. The following cases were cited: R v Smith (1996) 86 A Crim R 308; R v Fandakis [2002] NSWCCA 5; Cain v Glass (No 2) (1985) 3 NSWLR 230; Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643; [2007] NSWCA 366; and AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; 93 ALJR 59.

21. Counsel for the NSW Police submitted that “[t]hree limits should be mentioned, even though they do not defeat the present application”:

1. a claim of public interest immunity may be defeated if the information has already been published, however, if the publication has been limited and there would be utility in making an order, then an order can still be made;

2. a claim of public interest immunity will not be upheld if to do so would fundamentally undermine the justice system; and

3. a statute may override public interest immunity which is a common law immunity.

22. The Crown did not make submissions on the application. It neither joined in, nor opposed, the application.

Consideration

23. The Court Suppression and Non-publication Orders Act 2010 provides, relevantly, as follows:

3    Definitions

In this Act:

court means:

(a)    the Supreme Court, Land and Environment Court, Industrial Court, District Court, Local Court or Children’s Court, or

(b)    any other court or tribunal, or a person or body having power to act judicially, prescribed by the regulations as a court for the purposes of this Act.

information includes any document.

news media organisation means a commercial enterprise that engages in the business of broadcasting or publishing news or a public broadcasting service that engages in the dissemination of news through a public news medium.

non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

party to proceedings includes the complainant or victim (or alleged victim) in criminal proceedings and any person named in evidence given in proceedings and, in relation to proceedings that have concluded, means a person who was a party to the proceedings before the proceedings concluded.

proceedings means civil or criminal proceedings.

publish means disseminate or provide access to the public or a section of the public by any means, including by:

(a)    publication in a book, newspaper, magazine or other written publication, or

(b)    broadcast by radio or television, or

(c)    public exhibition, or

(d)    broadcast or publication by means of the Internet.

suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise).

…

6    Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

7    Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:

(a)    information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b)    information that comprises evidence, or information about evidence, given in proceedings before the court.

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 an act of indecency),

(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.

24. The questions in the present case are whether:

1. “the order is necessary to prevent prejudice to the proper administration of justice”;

2. “the order is necessary to protect the safety of any person"; and/or

3. “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”.

25. In Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403, the Court made clear that s 6 of the Act records and confirms that in deciding whether to make, inter alia, a non-publication order the Court must take into account that “a primary objective of the administration of justice is to safeguard the public interest in open justice”. At [27], Bathurst CJ and McColl JA noted that this provision “reinforces the legislative intention that [orders under the Act] should only be made in exceptional circumstances”.

26. Subsections 8(1)(a) to (e) specify a number of grounds upon which such an order can be made. All of them require that the order sought be “necessary” to protect an identified interest. The exceptional nature of the power and the high threshold imposed by “necessity” may be seen from the fact that it is not enough that it appears to the Court that the proposed order is convenient, reasonable or sensible: Rinehart at [31]; D1 v P1 [2012] NSWCA 314 at [48].

27. Another important matter in the present case is whether the orders sought will be effective or lack utility. In D1 v P1, Bathurst CJ emphasised the need to consider the utility of making the order. His Honour noted at [52] that there had been publicity about the incident in that case which gave rise to the litigation, and further discussion of the matter would seem likely irrespective of the order made.

28. Another important matter relevant in the present case is the delay in making the application. In Matthews v R (No 2) [2013] NSWCCA 194, between the time the Court heard argument in open court and handed down its judgment, the appellant made an application for a non-publication order that the reasons “not appear on Caselaw or other public databases”. At the time judgment was handed down, the parties were advised that the principal judgment would not appear on Caselaw until further consideration of the submission. The Court refused the application for the non-publication order at [10], because “all of the details to which this part of the application refers were extensively canvassed at the appellant’s trial which was conducted in open court”, and there was “no basis for concluding that any appreciable risk to the safety of the appellant would accrue or increase from the publication”.

29. In Commonwealth Director of Public Prosecutions v Christian [2019] FCAFC 5, the Director sought an order that judgments delivered (in relation to a bail application and sentence hearing) be recalled and thereafter not be made available on the “open source internet”. The Director asserted that they revealed the identity of the complainant, and that the continuing publication of the judgments on the “open source internet” would cause significant embarrassment, trauma and/or psychological harm to the complainant. The Full Court dismissed the appeal. The matter had been heard in open court and no application had been made for non-publication at the time of the hearing. At [126], Flick J observed that a “belated application may remain one that seeks to ensure the proper administration of justice”, but described the belated timing of the Director’s application as one of two “disturbing undercurrents” in the proceedings.

30. In Christian, Besanko and Robertson JJ found that the primary judge did not err in relying on Matthews v R (No 2) without taking into account other features which distinguished the two cases. Their Honours noted at [84] that in Matthews v R (No 2), as in the case before them, the trial had been conducted in open court, and that here the judgments had also been available on the internet for a number of weeks. Their Honours stated:

“[25] The Director submitted she was concerned to prevent harm to the complainant that might arise from persons who were not present at the proceedings but who might now readily access the two judgments on the internet. The fact that the two judgments were delivered ex tempore in open court meant that open justice was served, meaning that there was little reason not to accede to the relief that was sought, rather than to justify refusing the relief on that ground. Open justice was not implicated, or significantly implicated, by the restriction of publication on the internet.

[26] Accordingly, the Director submitted, the primary judge erred in relying on a single aspect of the judgment in Matthews v The Queen (No 2) [2013] NSWCCA 194 without taking into account other distinguishing features of the two cases. Although the Court in Matthews did not consider it necessary in the administration of justice to depart from the open justice principle, the Director submitted the same conclusion did not follow in this case. The Director submitted that there was an implication for open justice in the orders she sought but referred to the distinction in Matthews at [3] to a judgment being handed down and in that sense “published”, but not “published” in the sense of being uploaded immediately onto Caselaw [ The contradictor submitted that Matthews v The Queen (No 2), particularly at [7]-[10], did not support the proposition that the principle of open justice was not implicated, or significantly implicated, by restricting publication on the internet of material disclosed in open court. It would be an exceptional case where it was “necessary” to the administration of justice to prevent the continuing publication of material previously disclosed without restriction in open court.

…

[84] As to the submission that the primary judge erred by misapplying Matthews and in not dealing with the appellant’s submissions with reference to that case, it is difficult to see what the relevant principle is said to be or how the primary judge misapplied any such principle. As stated by the primary judge at [64], the New South Wales Court of Criminal Appeal in Matthews refused the application for a non-publication order and one of the Court’s reasons was that many of the details were canvassed at the trial which was conducted in open court. The primary judge also noted that here the information in the two judgments had also already been available on the internet for a number of weeks. It follows that we reject ground two of the amended notice of appeal.”

31. A principal theme of submissions on behalf of the NSW Police was that the continuing availability of the judgment on the internet was detrimental to the administration of justice by discouraging co-operation with the authorities. This is not, however, a case which directly engages the principle described in R v Fandakis and Cain v Glass (No 2). Those were cases where in the trial the accused sought the identity of a person who had provided information to the police for the purposes of conducting their defence. Nothing said by the High Court in AB (a pseudonym) v CD (a pseudonym) or in Commissioner of Police New South Wales v Nationwide News Pty Ltd assists in the resolution of the present question.

32. This is a case where the information sought to be redacted was provided to the Court by the person himself and taken into account in sentencing and on appeal: ss 21A(3)(m), 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Nothing in what we have said should be thought to cast any doubt on the longstanding procedure, adopted in the present case, of providing a confidential letter about assistance to the sentencing court: R v Cartwright (1989) 17 NSWLR 243 at 257 (Hunt and Badgery-Parker JJ). The present case involves no failure of that longstanding approach. To the contrary, that part of the sentencing hearing proceeded as usual and appropriate confidentiality orders were made about the contents of the letter of assistance.

33. It is necessary for a sentencing judge, and this Court on appeal, to provide reasons concerning an offender’s assistance to law enforcement authorities for the purpose of s 23 of the Crimes (Sentencing Procedure) Act. In Greentree v R [2018] NSWCCA 227, Beech-Jones J (Hoeben CJ at CL and McCallum J agreeing) referred at [55]-[57] to the tension which arises concerning the extent of reasons to be given with respect to assistance and any risk which could flow from those reasons. Beech-Jones J said:

“[55] However, the purpose and object of the statutory provision governs what is required of the sentencing judge. Section 23 is addressed to assistance provided by offenders to law enforcement authorities (see R v XX at [42] and [54]). In some, perhaps many, cases if knowledge of the fact or detail of that assistance is revealed then the offender or his family may be put at risk and the benefits that the law enforcement authorities might otherwise obtain from that assistance may be undermined or even destroyed.

[56] Thus, in some cases for the sentencing judge to embark upon a detailed exposition in a sentencing judgment of the factors in s 23(2) may defeat the very purpose of the statutory provision. In such cases as this there is an obvious tension between the achievement of the objectives of s 23 and the sentencing judge’s obligation to provide reasons in open court. In this case, the sentencing judge was clearly conscious of this tension. In referring to exhibit 3 his Honour adverted to the ‘significance and the usefulness’ of the assistance without elaborating what it was (s 23(2)(b)). With exhibit 4, his Honour was clearly not persuaded that the material was significant or useful. In doing so, his Honour sought to balance his obligation to provide reasons and comply with s 23(2) against the need to protect the confidentiality of exhibit 3 and exhibit 4. Any further discussion would have defeated the very point of keeping the material confidential.

[57] In these circumstances, I do not consider that there was any breach of the sentencing judge’s obligations to give reasons. Further, one cannot draw the inference from the sentencing judge’s failure to expose the detailed consideration of those factors that s 23(2) was not complied with. To the contrary it clearly was. Generally, where confidential material of this kind is tendered before a sentencing judge, very careful consideration will need to be given before it can be concluded that a sentencing judge either failed to address the factors in s 23(2) or failed to provide proper reasons. I do not consider that any such conclusion is open in this case.’”

34. As the decision in Greentree v R illustrates, the issue of assistance may be addressed in judgments of this Court without the use of a pseudonym or other redactions. Where the parties wish to contend that the Court should utilise a pseudonym in the publication of a judgment where an offender has provided assistance to authorities, the issue should be raised directly by the parties with the Court so that the application can be considered on its merits and with the Court implementing the conclusion reached in the publication of reasons on sentence.

35. In Christian, Besanko and Robertson JJ also held that the primary judge did not err by finding that the evidence provided little, if any, support that the continuing availability of the judgments was detrimental to the administration of justice by discouraging other complainants or victims from reporting offences or co-operating with the authorities. Their Honours stated:

“[85] The next ground of appeal, ground three, was that the primary judge erred in not recalling the two judgments and thereafter not making them available for publication on the internet on the ground that their publication on the internet was reasonably likely to be detrimental to the administration of justice by discouraging other complainants from reporting offences or co-operating with the authorities. The primary judge considered these matters at [51]-[56] and held that the evidence provided little, if any, support for the contention advanced by the Director. One of the points made by his Honour was that none of the police officers who swore affidavits specifically linked to the publication of the two judgments, on the internet or otherwise, the past reluctance of members of the Norfolk Island community to communicate with the police. Nor did they link that past reluctance to any perception that the Court would not protect the privacy of complainants.

[86] It was contended in this respect that the primary judge erred in not considering, or giving insufficient weight to, the evidence of the reluctance of people on Norfolk Island from being seen to be co-operating with the police and the more recent increasing co-operation of people with the police; and in considering irrelevant matters including that that evidence was not specifically about the present matter, that it was not apparent that sexual assault was common on Norfolk Island and that, as he concluded, the average resident would be unaware that the Court’s judgments were published online. We reject this ground. It refers only to part of the reasoning of the primary judge in relation to this point. The point failed for lack of evidence as evaluated by the primary judge. The primary judge plainly considered the evidence which was led.

[87] Second it was contended that the primary judge erred in not concluding on the facts that the publication of the two judgments on the “open source internet” would be likely to cause other victims to be more reluctant to report offences or to co-operate with the authorities. This contention has no separate force and we reject it.

[88] It seems to us that the Director’s last ground of appeal, ground four, that the primary judge erred in regarding it to be centrally important to considerations of open justice that the two judgments be available for publication on the “open source internet”, is without substance. It may be accepted that the two judgments were at first instance and were of no or limited precedential value, but that does not adequately state the concept of open justice. The reasons of the primary judge in the two judgments, both on the application for review of the Chief Magistrate’s grant of bail and in relation to the sentencing remarks, show how the primary judge reasoned to make the orders he made. Thus the important principle of open justice was vindicated by being able to see how justice was administered in this particular case.”

36. The safety of the appellant is obviously a relevant matter. In D1 v P1, Bathurst CJ (McColl JA and McClellan CJ at CL agreeing) concluded that it was not appropriate to extend an order prohibiting the disclosure of the existence or subject matter of related proceedings, as this was not necessary to protect the safety of the person said to be affected by the publication of the existence of the proceedings.

37. There had been a debate in the cases about whether the probability of harm is a precondition to making an order. That debate has now been concluded by a recent decision of this Court in AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46. The correct approach is a “calculus of risk” approach which the Court described in the following way:

“[56] 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).

[57] 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.

[58] 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.’

[59] 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.

[60] 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.”

38. Although this application has many undesirable features, in particular the gross delay in making the application, we are persuaded, applying the “calculus of risk” approach, that this is an appropriate case in which to make a pseudonym order and also to make some limited redactions of the principal judgment on the basis that a sufficiently serious potential risk to the appellant’s physical safety has been demonstrated.

39. This is a case where the possible harm identified by Mr Corboy in the confidential affidavit is so serious that the Court is satisfied under s 8(1)(c) that a pseudonym order is necessary, although it plainly could not be said on the evidence that it is probable that the appellant’s physical safety will be harmed in the absence of an order.

40. In addition to the pseudonym order we are persuaded that the following matters should be redacted in the Court’s original judgment:

1. the appellant’s actual name (the name he used in travelling to Australia was itself a pseudonym) at [4];

2. the name of his wife at [4];

3. the country which allegedly issued his false passport in the headnote and at [4];

4. the appellant’s continent and country of birth and the capital of that country in the headnote and at [5], [6], [15], [18(3)], [25], [28], [58], [60], [76], [89];

5. the appellant’s address in Sydney at [6], [59], [61]; and

6. the appellant’s age at [58].

41. We reject the submission that any redactions other than those which may identify the appellant are necessary in the sense we have described. In particular:

1. There is no demonstrated necessity to redact the dates sought to be redacted. As emerged in argument, it is now common ground that the original sentencing judgment was never made available on the internet. In the absence of publication on the internet of the original sentencing remarks, the possibility that any internet enquiry could be made using those dates disappears.

2. There is no demonstrated necessity to redact the nature of the appellant’s impairment. We are not persuaded that this description makes identification of the appellant any more likely.

3. There is no demonstrated necessity to redact the ethnicity of the victims targeted by the appellant. We are not persuaded that this description makes identification of the appellant any more likely.

4. There is no demonstrated necessity to redact the appellant’s mother tongue or the fact that he asked others to translate documents for him in gaol. We are not persuaded that this description makes identification of the appellant any more likely.

5. There is no demonstrated necessity to redact the fact that the appellant has a wife. We are not persuaded that this description makes identification of the appellant any more likely.

6. There is no demonstrated necessity to redact the dates of the appellant’s offending. In the absence of publication on the internet of the original sentencing remarks, the possibility that any internet enquiry could be made using those dates disappears.

7. There is no demonstrated necessity to redact the fact that the appellant has two siblings. We are not persuaded that this description makes identification of the appellant any more likely.

42. In making these findings we have considered the judgment as a whole after the redactions have been made and the pseudonym order imposed. The additional redactions sought are not necessary in the sense we have described.

43. It remains to deal with the orders of Culver DCJ. One of the undesirable aspects of the way the parties and the NSW Police have approached this case is that her Honour was placed in the invidious position of making an order which affected the dissemination of this Court’s judgment. Another undesirable aspect of this case is that the parties and the NSW Police did not bring her Honour’s orders to this Court’s attention either before they were sought or after they were made. It was only upon searching JusticeLink records that the orders came to light.

44. We trust that we have said enough to explain that what occurred in this case should not happen again.

45. We make the following orders:

1. Set aside the suppression orders of Culver DCJ made on 31 January 2019 and in lieu thereof order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW):

1. the appellant shall be identified in connection with these proceedings (including all proceedings in the District Court) by the pseudonym “Darren Brown” on the grounds that this order is necessary to protect the safety of one or more persons;

2. that publication of any information:

1. tending to reveal the identity of Darren Brown, 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

2. tending to reveal the identity of Darren Brown’s family 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;

3. the paragraphs of this Court’s judgment dated 21 November 2018 referred to at [40] of these reasons be redacted as described in [40]; and

4. the duration of this order be 20 years.

2. Order (1) shall apply:

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

2. anywhere in the Commonwealth;

3. until 20 years from the date of this order.

3. Order (2) 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, Darren Brown and Darren Brown’s spouse and family.

**********

Decision last updated: 05 April 2019