Dhankhar v The King - [2023] NSWCCA 67

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dhankhar v R [2023] NSWCCA 67
Hearing dates: 07 March 2023
Date of orders: 07 March 2023
Decision date: 29 March 2023
Before: Payne JA at [1]
Garling J at [5]
Yehia J at [56]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL PROCEDURE — suppression and non-publication orders — appeal against decision not to make non-publication order — where applicant is alleged to have committed a series of offences — where applicant applied for suppression and non-publication orders in relation to his name and his wife’s name — where applicant claimed that the orders were necessary to protect his safety, his wife’s safety and the safety of family members — where applicant relied on evidence in relation to his and his wife’s cultural background and circumstances — where applicant and his wife belonged to the Jat community originating from the Indian subcontinent — where persons whose safety was said to be at risk were located in Australia and India — whether orders “necessary to protect the safety of any person” — “calculus of risk” approach — appeal dismissed

Legislation Cited:
Crimes Act 1900
Court Suppression and Non-publication Orders Act 2010

Cases Cited:
AB v R (No 3) (2019) 276 A Crim R 443; [2019] NSWCCA 1046
Burrell v R [2008] NSWCCA 276
DRJ v Commissioner of Victims Rights [2020] NSWCA 136
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52
John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465
John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324
John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101
Liu v Fairfax Media Publications Pty Ltd [2018] NSWCCA 159
Liu v Fairfax Media Publications Pty Ltd [2018] NSWCCA 159
Nagi v DPP (NSW) [2009] NSWCCA 197
R v A1 (No 1) [2019] NSWSC 611

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Balesh Dhankhar (Applicant)
The Crown (Respondent)
Representation:
Counsel:
L Fernandez (Applicant)
G A Newton SC with J Styles (Respondent)
Solicitors:
Nyman Gibson Miralis (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/00323697
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

9 February 2023

Before:

Huggett DCJ

File Number(s):

2018/00323697

JUDGMENT

PAYNE JA: On 7 March 2023 I joined in orders made by the Court on that day. My reasons for doing so are encapsulated in the reasons of Garling J, with which I agree.
I join with his Honour in expressing regret about the inability of the parties to identify the order apparently made in his case or its terms. It is critical that orders made under the Court Suppression and Non-Publication Orders Act 2010 (NSW) are clear and understood by all, not least the media who have an important role in facilitating open justice.…

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.

Continue reading Dhankhar v The King

Details

AGLC: Dhankhar v The King [2023] NSWCCA 67
Case: [2023] NSWCCA 67
Decision Date: 29 March 2023

CaseChat Overview and Summary

In the case of Dhankhar v The King, the applicant, Dhankhar, appealed against the decision of the Supreme Court of Victoria to refuse to make non-publication orders in relation to his name and his wife's name. Dhankhar was alleged to have committed a series of offences. The applicant sought suppression and non-publication orders in relation to his name and his wife's name. He claimed that the orders were necessary to protect his safety, his wife's safety, and the safety of family members. The applicant relied on evidence in relation to his and his wife's cultural background and circumstances. They belonged to the Jat community originating from the Indian subcontinent. The persons whose safety was said to be at risk were located in Australia and India.

The legal issues that the court was required to decide were whether the orders were necessary to protect the safety of any person and whether the court should adopt a "calculus of risk" approach. The court had to consider the evidence and arguments presented by the applicant and the respondent. The court had to balance the right to a fair trial with the need to protect the safety of the applicants and their family members. The court had to determine whether the orders were necessary to protect the safety of any person and whether they were proportionate to the risk of harm.

The court's reasoning and outcome were that the appeal was dismissed. The court found that the orders were not necessary to protect the safety of any person. The court held that the risk of harm to the applicants and their family members was not sufficient to warrant the making of non-publication orders. The court considered the evidence and arguments presented by both parties and concluded that the orders were not proportionate to the risk of harm. The court held that the applicants had not demonstrated that the orders were necessary to protect their safety and the safety of their family members.

No further orders were made. The decision of the Supreme Court of Victoria to refuse to make non-publication orders was upheld. The applicants were not granted the relief they sought. The court held that the risk of harm to the applicants and their family members was not sufficient to warrant the making of non-publication orders. The court considered the evidence and arguments presented by both parties and concluded that the orders were not proportionate to the risk of harm.

Orders