Director of Public Prosecutions (Cth) v Knox (No 2) (Non-Publication application)

[2025] NSWDC 106

District Court

New South Wales

Medium Neutral Citation:	DPP (CTH) v KNOX (No 2) (Non-Publication application) [2025] NSWDC 106
Hearing dates:	31 March 2025
Date of orders:	4 April 2025
Decision date:	04 April 2025
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	The application by the offender applicant that a non-publication order be made pursuant to section 8(1)(c) of the Court Suppression and Non-Publication Orders Act, 2010 is refused.
Catchwords:	CRIMINAL PROCEDURE – Suppression and non-publication orders – application by offender to anonymise published sentence remarks – submission that publication of identity may create risk of suicidal ideation – opposed by Crown - “calculus of risk” approach – medication and observation in custody, psychological report sent to Department of Corrective Services
Legislation Cited:	Court Suppression and Non-Publication Orders Act, 2010
Cases Cited:	AB (a Pseudonym) v R (No 3) [2019] NSWCCA 46
Category:	Consequential orders
Parties:	Rex Robert KNOX
Representation:	Solicitors: Mr N Ravi, Commonwealth Office of the Director of Public Prosecutions Mr G Mitchell, Mitchell & Co Lawyers
File Number(s):	2023/199811
Publication restriction:	No

JUDGMENT

Reasons on application by way of Notice of Motion

1. On 13 March 2025 the sentence hearing in this matter was conducted by way of audio-visual link (AVL) with me presiding in Wagga Wagga and the parties in Sydney. On 21 March 2025 I passed sentence following what I regard as comprehensive reasons. I commenced proceedings on 21 March 2025 by indicating that the reasons would be published on CaseLaw as [2025] NSWDC 60.

2. Despite that indication, no application was made on the day that sentence was passed. My Associate was notified of the application that was expected and accordingly I have delayed the publication of the reasons for sentence.

3. By way of Notice of Motion filed 26 March 2025 the offender moves the Court for orders:

1. A non-publication order on the basis that in this case the order is necessary to protect the safety of the offender (s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW)) notwithstanding that a primary objective of the administration of justice is to safeguard the public interest in open justice.

2. The publication of information that will reveal or is likely to reveal the identity of the offender is prohibited.

3. The offender may only be referred to as AA

4. Orders (1)-(3) remain in force for 20 years

5. These orders apply throughout the Commonwealth of Australia.

4. Initially I was advised informally by the solicitor who appears for the offender applicant that the Commonwealth Director of Public Prosecutions neither opposed or consented to the orders sought. A short hearing was conducted again via AVL on 31 March 2025. The Court was informed that the Commonwealth did oppose the orders sought. The parties made brief submissions. To ensure I properly understood the submissions of the respective parties I requested that they confirm the brief oral submissions by way of email. I am grateful to both parties for the prompt communication by email to my chambers setting out their respective positions.

Legislation

5. Section 8 of the Court Suppression and Non-Publication Orders Act provides:

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 sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900),

(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.

(3)    Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

Authority

6. At the time of the filing of the Notice of Motion the solicitor for the offender applicant helpfully made available a copy of the decision of the Court of Criminal Appeal in AB (a Pseudonym) v R (No 3) [2019] NSWCCA 46. At [47] the Court (Hoeben CJ at CJ, Price & Adamson JJ (as their Honours then were)) said:

“A court is to take into account, when deciding whether to make an order under the Act, that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 6. The court’s power to make orders, which is conferred by s 7 of the Act, entitles the court to make orders prohibiting or restricting the publication or other disclosure of information tending to reveal the identity of a party to, or witness in, court proceedings and of information that comprises evidence, or information about evidence, given in proceedings before the court. The grounds for making an order are set out in s 8. Although the application in the Court below was sought on the ground in s 8(1)(c), the section is reproduced in full below, because of its importance to the disposition of this application…”

7. I have not extracted that part of the paragraph that contains s 8 of the Legislation as I have already set that out above.

8. Their Honours went on to say at [55]-[56]:

“As set out above, the ground under s 8(1)(c) is made out if the order is ‘necessary to protect the safety of any person’. Basten JA’s analysis of the word ‘necessary’ in the context of s 8 in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim at [46] (Bathurst CJ agreeing at [8], Whealy JA agreeing) relevantly states the correct approach to be taken. His Honour said:

‘The meaning of ‘necessary’ depends on the context in which it is used. Ins 8(1), it is used in relation to an order of the court, or, in practical terms, a proposed order, because it identifies a standard as to which the court must be satisfied before making an order. In each paragraph of that provision, the word ‘necessary’ is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In par (a), the purpose of the order will be ‘to prevent prejudice to the proper administration of justice’. That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree: the proposed order may diminish a risk of prejudice or it may obviate the risk entirely. All of these variables may affect what is considered ‘necessary’ in particular circumstances.’

[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).

9. A little later their Honours said at [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.”

10. Clearly, the “calculus of risk” approach is to be taken. Therefore I am required to consider the nature, imminence and degree of likelihood of harm occurring to the relevant person, in this case the applicant offender. It is put that the offender applicant is at a risk of harm, namely self-harm and suicide.

Evidence relied upon

11. Also at the time of the filing of the Notice of Motion the solicitors for the offender applicant made available another copy of the report of Dr Richard Furst, forensic psychiatrist, that was in evidence at the sentence proceedings.

12. Relevant to the issue that I need to determine the following appears at p. 4 of the report:

“Mr Knox attempted suicide after he was charged with the current matters before the Court in 2023. He stated he drank ‘Draino’ and attempted to hang himself, leading to an admission for several weeks to Marie Bashir Unit, i.e. the psychiatric inpatient unit at Royal Prince Alfred Hospital. He was severely depressed at the time and stated he had also been very depressed in the period leading up to him being charged in 2023.

He recalls being very depressed at Christmas 2022. There was a police welfare check in the early months of 2023 after he turned his phone off and shut himself off from other people.

Mr Knox also took an overdose of multiple medications together with alcohol in November 2023, living at Redfern at the time. His mother came and drove him to the Illawarra region and he was admitted to the Shellharbour hospital overnight before staying with his mother at Barrack Heights in December 2023 and early January 2024. He returned to Sydney over the following four months before returning to the Illawarra to stay with his mother at Barrack heights again from April or May 2024.

Mr Knox was under the care of a GP at the Waterloo Medical Centre when living in Redfern. He was prescribed the antidepressant medications Avanza (Mirtazapine) and Efexor XR (Venlafaxine) after being admitted to Royal Prince Alfred Hospital in 2023. He was also prescribed the mood stabilising medication Lamotrigine, those medications continuing up to and including at the time of recent assessment.”

13. Further, at the bottom of p. 5 of the report the following appears:

“Mr Knox presented as a 39 year old male with brown hair and greying beard. He was alert and cooperative. He was anxious and restless. Mr Knox describe(d) feeling depressed in mood. He said, ‘My life as I know it is not the same’, expressing uncertainty about his future. There were no indications of mania or psychosis. He was approximately average intelligence”.

14. Under the heading “Custodial Options” Dr Furst says (p 8):

“In the event that Mr Knox receives a custodial sentence, he will require regular reviews with a psychiatrist and mental health nurse working for Justice Health, the frequency of clinical contact depending on the severity of his depressive symptoms and suicide risk, probably at least monthly in the first instance”.

15. On of the specific questions Dr Furst was asked to answer was “If Mr Knox is sentenced to full-time custody, is there any reason why that sentence would be particularly onerous?” the answer set out at p 9 of the report is:

“The custodial environment in NSW is generally restrictive and harsh, with frequent exposure to threats, intimidation and violence amongst other inmates. In my opinion Mr Kox’s C-PTSD (Chronic Post Traumatic Stress Disorder) and previous suicide attempts place him at increased vulnerability compared to other inmates and would likely make a custodial sentence more onerous for him. Specifically he would be more vulnerable to the effects of stress in the jail environment and/or the effects of being stood over, intimidated, threatened and/or assaulted by other more mentally robust inmates in custody. The stress of being incarcerated would also increase his risk of relapsing into more acute phases of depression and increase his risk of suicide with is currently moderate high”,

16. At p 10 of the report Dr Furst says:

“Engagement in individual psychological counselling to address in anxiety and depression and treatment with antidepressant and mood-stabilising medication for his C-PTSD, anxiety disorder and depressive tendencies would likely also be of assistance in managing his risk of re-offending effectively”.

17. I note that as part of my orders on pronouncing sentence I directed that a copy of Dr Furst’s report be forwarded to the Department of Corrective Services. I also recommended that the offender be placed on “suicide watch” on being taken into custody.

Respective positions of the parties

18. In his email, Mr Mitchell for the offender applicant indicates that he relies on the unchallenged opinions and findings of Dr Furst. I have extracted what I consider to be the relevant parts of the report above within these reasons. Mr Mitchell goes on to emphasise that the application is brought pursuant to s 8(1)(c) of the legislation and not s 8(1)(d).

19. Further, it is put on behalf of the offender applicant that the application is made on the basis that publication of the applicant’s identity given his history and conditions could lead to a situation where the applicant’s psychological health will deteriorate as it has in the past, which will create a substantial risk that he will experience suicidal ideation and kill himself; i.e. the order is necessary to protect the safety of the applicant.

20. It is put on behalf of the applicant that protecting the identity of the applicant would not compromise the public interest in open justice to any material degree. As to the length of time for which the order is sought, i.e. 20 years, it is put on behalf of the applicant that there is no information available to specify a shorter time, and that is the period of time specified by the court in AB (A pseudonym) v R (No 3).

21. The Commonwealth submits that the purpose of seeking the non-publication order appears to be to protect the applicant from distress and embarrassment which it is asserted (by the applicant) may endanger his physical safety. It is further put by the Crown that personal embarrassment is not a proper basis for the order sought. I note in this regard that the application is brough pursuant to s 8(1)(c) of the legislation.

22. Further, the Crown puts that in applying the “calculus of risk” approach this is not a matter where it has been demonstrated there is a sufficiently serious potential risk to the applicant’s physical safety to make the order sought. The Crown submits the period of 20 years is excessively lengthy especially where the risk of suicide is not foreseeable for such a length of time in circumstances where there has been no suggestion of media interest so far.

23. The Crown also notes that the court recommended that the offender be placed on suicide watch. In this regard see paragraph [109] of the sentence judgment.

Consideration.

24. I agree with the Commonwealth that the recommendation that the offender be placed on suicide watch should minimise the risk of self-harm. I also note that in custody the offender’s medications will be given in daily doses and it would be extremely difficult for the offender to overdose in a custodial setting.

25. Further, I note at p 8 of his report Dr Furst opines that if the offender receives a custodial sentence, which he did, the offender will require regular reviews with a psychiatrist and mental health nurse, the frequency of clinical contact depending on the severity of his depressive symptoms. I note that [108] of the sentence judgment that I directed a copy of Dr Furst’s report be forwarded to the Department of Corrective Services. Therefore, the Department of Corrective Services will have been informed of the issues confronting the applicant and Dr Furst’s opinions and recommendations. I further note that the applicant relied on Dr Furst’s report tendered at the sentence hearing and did rely on any further material in this present application.

26. The nature of the risk is that the offender applicant will self-harm or maybe commit suicide. Given what has been put in place so far as the court recommending that the applicant be placed on suicide watch and Dr Furst’s report being made available to the Department of Corrective Services I am unable to find that any threat to the applicant is imminent.

27. The court has done what it is able to do in order to minimise the risk of the applicant self-harming. I accept that there is always a risk of the applicant self-harming, but on the material before me given all of the circumstances set out within these reasons and I cannot conclude that it is likely that the applicant will self-harm.

Order

28. The application by the offender applicant that a non-publication order be made pursuant to section 8(1)(c) of the Court Suppression and Non-Publication Orders Act, 2010 is refused.

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Decision last updated: 09 April 2025