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…

Grounds of appeal

[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

Case: [2019] NSWCCA 69
Decision Date: 05 April 2019

CaseChat Overview and Summary

The case of Darren Brown (a pseudonym) v The Queen (No 2) was heard in the High Court of Australia, where the appellant, Darren Brown, sought suppression and non-publication orders. The dispute centred around the publication of his criminal trial judgment, which was released on the internet, and Brown's subsequent application for orders to prevent the publication of his identity and details of his case. The central issue for the court was whether it was appropriate to make such orders when the application was made approximately one month after the judgment was published, and whether these orders were necessary to protect Brown's safety and the safety of his family, to prevent prejudice to the administration of justice, and to weigh the public interest in open justice against the potential harm of the information's publication.

The court had to determine whether the late application rendered the orders futile or ineffective and whether the orders were necessary under the circumstances. It examined whether the risk to Brown and his family's safety was significant enough to warrant suppression and whether the availability of the judgment would discourage cooperation with law enforcement authorities. The court applied the 'calculus of risk' approach, which involves balancing the risks and benefits of making such orders against the public interest in open justice.

After considering the arguments, the court held that the application for suppression and non-publication orders was not futile or ineffective, despite being made late. The court found that there was a significant risk to Brown and his family's safety due to the publication of information revealing his assistance to law enforcement authorities. The court concluded that the public interest in protecting the safety of individuals significantly outweighed the public interest in open justice in this case. Therefore, the court granted the orders sought by Brown, preventing the publication of information that could reveal his identity and the nature of his assistance to authorities.

Orders