MA v Director of Public Prosecutions (NSW); AD v Director of Public Prosecutions (NSW)

Case •

[2025] NSWCCA 54

•

14 April 2025

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: MA v Director of Public Prosecutions (NSW); AD v Director of Public Prosecutions (NSW) [2025] NSWCCA 54
Hearing dates: On the papers
Date of orders: 14 April 2025
Decision date: 14 April 2025
Before: Bell CJ at [1]; Ward P at [2]; Sweeney J at [60]
Decision:

1.   Respondent’s Notice of Motion dated 5 March 2025 is dismissed.

2.   Notice of Motion filed 13 March 2025 by Thomas Buckingham is dismissed.

3.   Notice of Motion filed 14 March 2025 by Emily Anderson-James is dismissed.

4. The Court of Criminal Appeal judgment [2023] NSWCCA 233 should now be published without anonymisation or redaction.

Catchwords:

CRIMINAL PROCEDURE – suppression and non-publication orders – where the Court published reasons in September 2023 dismissing an appeal from an interlocutory judgment in the District Court – where the Court declined to grant a permanent stay of criminal proceedings – where publication of the Court’s reasons was restricted until completion of the District Court trial – where the District Court trial was completed – where suppression orders were made by the District Court in respect of the identities of a solicitor and solicitor advocate in related proceedings – where the respondent sought amendments to the Court’s reasons in order to redact the initials of the instructing solicitor and solicitor advocate prior to publication – whether suppression orders should be made according to s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW)

Legislation Cited:

Children (Criminal Proceedings Act 1987 (NSW)), s 15A

Court Suppression and Non-Publication of Orders Act 2010 (NSW), ss 7, 8

Crimes Act 1900 (NSW), s 61

Federal Court of Australia Act, s 50

Victims Rights and Support Act 2013 (NSW)

Cases Cited:

A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym) [2020] NSWSC 1713

AB (A pseudonym) v CD (a pseudonym) [2019] HCA 6

AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46

Commissioner of The Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5

DRJ v Commissioner of Victims Rights [2020] NSWCA 136

Hogan v Australian Crime Commission (2010) 240 CLR 652; [2010] HCA 21

John Fairfax & Sons v Police Tribunal (NSW) (1986) 5 NSWLR 465

MA v R; AD v R [2023] NSWCCA 233

Munshizada v R; Baines v R; Danishyar v R; Hosseinishoja v R; Shekeb v R; Sultani v R; Abdaly v R [2021] NSWCCA 307

Police Member 1 (a pseudonym) v Antonios Sajih Mokbel [2025] VSCA 34

R v MA; R v AD [2024] NSWCCA 69

Sultani v R; Shekeb v R; Abdaly v R; MD v R; Baines v R; Munshizada v R; Hosseinishoja v R [2021] NSWCCA 301

Category:Procedural rulings
Parties: MA (First Appellant)
AD (Second Appellant)
Director of Public Prosecutions (NSW) (Respondent/ Applicant on first notice of motion)
Thomas Buckingham (Applicant on second notice of motion)
Emily Anderson-James (Applicant on third notice of motion)
Representation: Solicitors:
Office of the Director of Public Prosecutions (NSW) (Applicant on first notice of motion)
Purcell Lawyers (Applicants on second and third notices of motion)
File Number(s): 2020/00298136; 2020/00298183
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of information that identifies or is likely to lead to the identification of the complainant, her friends G or L, MA or AD.
Note order made by Pickering SC DCJ on 26 July 2023 that there is to be no publication of information that identifies or is likely to lead to the identification of the applicant on the third notice of motion (EAJ).
Note order made by Gallagher DCJ on 7 February 2025 prohibiting disclosure by publication or otherwise of any information tending to reveal the identity of the applicant on the second notice of motion (TB).

JUDGMENT

  1. BELL CJ: I agree with Ward P.

  2. WARD P: On 25 September 2023, this Court published reasons granting leave to appeal but dismissing the appeal by MA and AD from an interlocutory judgment of Pickering SC DCJ in the District Court declining to grant a permanent stay of criminal proceedings against those accused. The accused had been charged with two counts of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW) (Crimes Act). AD had also been charged with four counts of sexual intercourse without consent contrary to s 61I of the Crimes Act. The accused’s names were anonymised pursuant to s 15A of the Children (Criminal Proceedings Act 1987 (NSW)), as was the name of the complainant. Publication of the reasons for judgment (MA v R; AD v R [2023] NSWCCA 233 (the CCA Judgment)) was restricted to the parties and their legal advisers until completion of the trial.

  3. In February 2025, this Court was notified by the Office of Public Prosecutions NSW, in compliance with order 4 of the orders made in September 2023, that the trial of the accused (a judge alone trial heard by Gallagher DCJ) had been completed, the trial judge acquitting the accused of all counts.

  4. The solicitor from the ODPP who notified the Court that the trial had been completed also brought to the Court’s attention suppression orders that had been made by the District Court in respect of the identities of two individuals (the instructing solicitor (identified as EAJ) and the solicitor advocate (identified as TB)). With the consent of the appellants (MA and AD), the Crown sought amendments to the CCA judgment in order to redact the initials “EAJ” (and replace them with the pseudonym “SK”) and to redact any reference to the name of “TB” or his initials (and substitute those with the pseudonym “XX”). The Crown proposed the use of the substitute initials for consistency with the judgment of this Court in R v MA; R v AD [2024] NSWCCA 69, where the Crown had made a corresponding application, and with the approach apparently suggested in the District Court at the time of the proposal put forward for consideration by this Court.

  5. When this Court indicated to the ODPP that any such application ought to be brought in the ordinary course by notice of motion and supporting affidavit, the Director of Public Prosecutions forwarded for filing a notice of motion supported by an affidavit affirmed 5 March 2025 by Emma Pearl Phillips and submissions.

  6. Subsequently, after the Court had enquired as to the basis on which the application was brought and it was confirmed by the ODPP that it was not an application pursuant to the Court Suppression and Non-Publication of Orders Act 2010 (NSW) (CSPO Act), each of the individuals who were the subject of the Director’s anonymisation request separately filed notices of motion, with supporting affidavits sworn on 13 March 2025 and 14 March 2025, respectively, by their solicitor, Penelope Purcell. Relevantly, those applications sought, in the alternative to the primary relief sought (anonymisation of the reasons), a suppression order pursuant to s 7 of the CSPO Act.

  7. By consent of the parties, the respective applications are to be dealt with on the papers.

CSPO Act

  1. Section 7 of the CSPO Act provides that:

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.

  1. Section 8 of the CSPO Act sets out the grounds on which such an order may be made:

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.

  1. It should be noted that s 12(2) of the Act provides that the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

Suppression orders made in relation to the individual applicants to date

  1. The history of the making of suppression orders in relation to the individual applicants is of relevance to the basis on which the Director seeks anonymisation orders in the present case and the primary basis on which orders are sought by the individual applicants. For that purpose, some further matters by way of background should be noted.

  2. As adverted to above, MA and AD were charged with various sexual offences. These related to the alleged assault of the complainant on 2 March 2019. The complainant made a statement to the police on 18 March 2019 in relation to the alleged assault (see the CCA Judgment at [3]-[4]).

  3. Following a conference with the solicitor advocate (TB) on 15 April 2021, at which the instructing solicitor (EAJ) took notes, a solicitor in the office of the ODPP requested that the police take a further clarification statement from the complainant and the complainant made a second police statement, which was served on the accused’s lawyers on 23 April 2021. It should be noted that the April 2021 conference was in the context of the solicitor advocate seeking to discharge his statutory obligations of certification and compliance with the DPP’s Guidelines on prosecutorial conduct as well as objects under the Victims Rights and Support Act 2013 (NSW) (as noted in the CCA Judgment at [6]).

  4. In August 2022 a set of the April conference notes was disclosed by the ODPP to the accused’s lawyers. An application was then made by the accused for a permanent stay of the prosecution on the basis that the April conference constituted impermissible coaching of a central prosecution witness (the complainant) with the consequence that the trial would be rendered unfair and/or that to continue the prosecution would bring the administration of justice into disrepute. That application was heard by Pickering SC DCJ in February 2023. His Honour declined the stay, giving ex tempore reasons in which (among other things) he was highly critical of the conduct of the solicitor advocate (TB). (In this Court, on the appeal from his Honour’s refusal to stay the prosecution, the Crown conceded that the manner in which the April conference was conducted was improper but did not concede that it was deliberately so.)

  5. Following his Honour’s judgment, on 26 July 2023 his Honour made suppression orders pursuant to s 7 of the CSPO Act prohibiting disclosure by publication or otherwise of information tending to reveal the identity of the instructing solicitor (EAJ), there said to be a witness in the proceedings before the District Court, and for the instructing solicitor to be referred to by a pseudonym in connection with the proceedings (see Annexure A to Ms Phillips’ affidavit affirmed 5 March 2025). The orders were made for a period of five years. The orders were expressed to be made on the grounds under s 8(1)(d) and 8(1)(e) of the CSPO Act.

  6. In support of the application before his Honour, the instructing solicitor had relied on a psychological report provided by a forensic psychologist, Dr Catriona Daly (see Annexure A to the affidavit sworn 14 March 2025 by Ms Purcell). It does not appear that any suppression order was sought or made at that time in relation to the solicitor advocate (TB).

  7. On 30 August 2023, this Court heard the application for leave to appeal (and appeal if leave be granted, as it was) from the refusal of Pickering SC DCJ to grant a stay of the prosecution and, as noted above, on 25 September 2023, the Court delivered judgment on that appeal. Publication of the judgment was restricted as noted above, pending completion of the trial.

  8. On 25 October 2023, Pickering SC DCJ made interim suppression orders for a period of not longer than six months in respect of the identity of the solicitor advocate (TB) (see [6] of Ms Phillips’ 5 March 2025 affidavit). It is not clear on what grounds under s 8 of the CSPO Act those interim orders were made.

  9. On 1 December 2023, Ingram DCJ made an order staying the criminal trial of the accused until such time as the Crown indicated that EAJ would be called as a witness at the trial or made available to give evidence at the trial. This was in the context that the Crown had advised the accused that TB would be called to give evidence at the trial but that EAJ would not be called.

  10. On the Crown’s appeal from that order, this was described by Stern JA, with whom Rothman and Button JJ agreed, as a conditional stay of potentially permanent effect (see R v MA; R v AD [2024] NSWCCA 69 at [1]) (the Second CCA Judgment). On 14 May 2024, the Crown’s appeal was allowed and the order of Ingram DCJ was set aside. Again, publication of the reasons for judgment was restricted to the parties and their legal advisers until completion of the trial. A direction was made that the Crown make such application as it considered appropriate for an order restricting publication or disclosure of the reasons for judgment beyond the completion of the trial, if it considered that any part of the reasons would tend to reveal the identity of EAJ or TB.

  11. On 28 May 2024 and 3 June 2024, orders were made by this Court (as constituted for the Second CCA Judgment) relevantly redacting any reference to the initial “EAJ” and substituting it with the pseudonym “SK” throughout the judgment and its annexure (see Annexure B to Ms Phillips’ 5 March 2025 affidavit).

  12. On 22 July 2024, Pickering SC DCJ made suppression orders in respect of the identity of the solicitor advocate (TB) (see [11] of Ms Phillips’ affidavit). It is not clear from those orders under which ground(s) of s 8 of the CSPO Act those orders were made.

  13. On 7 February 2025, Gallagher DCJ delivered judgment on verdict in the trial of MA and AD, acquitting both of the accused on all counts. On the application of the Crown, her Honour made suppression orders in respect of the identity of the solicitor advocate (TB) for a period of five years and for him to be referred by the pseudonym “XX” in connection with the proceedings (see annexure C to Ms Phillips’ 5 March 2025 affidavit). Her Honour did so on the basis that her Honour was satisfied that the orders were necessary to protect the safety of the applicant (TB) (s 8(1)(c)).

Present applications

  1. This brings me to the present applications which, as indicated above, are put by the Crown (and on a primary basis by the individual applicants) not pursuant to s 7 of the CSPO Act but rather as a request for anonymisation by reference to the presently existing suppression orders. The Crown submits that its application is made to make the Court aware of those presently existing suppression orders (particularly those made subsequent to the hearing of the appeal) in order that those orders “are not inadvertently rendered otiose by publication of an unredacted judgment in the present matter” (that being a reference to the matter determined by the CCA Judgment).

  2. It is only if anonymisation orders are not made pursuant to that request that the individual applicants (TB and EAJ) seek suppression orders pursuant to s 7 of the CSPO Act. The Crown does not seek the making of formal suppression orders pursuant to that statutory provision. As to the individual applicants, the instructing solicitor (EAJ) relies on the same material relied upon in the District Court (i.e., the report of the forensic psychologist) (see Annexure A to the affidavit sworn 14 March 2025 of Ms Purcell); the solicitor advocate (TB) relies on submissions prepared by his Counsel in the District Court application as to the necessity of the order and to the material put before the Court on that occasion including affidavits sworn by him and the report dated 24 November 2024 of a clinical psychologist, Dr Clara Fritchley (see Annexures B and C to Ms Purcell’s affidavit sworn 13 March 2025).

  3. I address the respective bases for the anonymisation/suppression applications below.

Anonymisation orders – coherence with District Court orders

  1. Although not put expressly on the basis that anonymisation orders would provide coherence with the presently existing suppression orders made in the District Court, that is in effect the nub of the Crown’s submission in support of the orders it seeks – namely, to obviate inadvertent breach of the pre-existing suppression orders.

  2. In that regard, it is important to note that the suppression orders were made only in relation to the proceedings in which they were made. They do not bind this Court, nor is it suggested that they do.

  3. In Sultani v R; Shekeb v R; Abdaly v R; MD v R; Baines v R; Munshizada v R; Hosseinishoja v R [2021] NSWCCA 301, an appeal was brought against the District Court’s decision to refuse a non-publication order that would prevent the release of details about recent murder proceedings set to be heard in the Supreme Court. These proceedings involved individuals who were also set to stand trial in the District Court. The appeal was dismissed. Beech-Jones CJ at CL (as his Honour then was) at [15] (Rothman J and Wilson J agreeing but writing separately) said that:

[i]t can be seen that the scope of this power is directed to a Court making orders in respect of information disclosing the identity of a party or witnesses, et cetera, in that same Court. It does not on its face authorise any Court to make orders in respect of proceedings in another Court. While it is conceivable that as a matter of construction an order under s 7 could definitely affect the reporting and publicity associated with proceedings before a different Court, it should be clear from at least the order sought in respect of Mr Munshizada that that does not appear to be in substance what was sought. [my emphasis]

  1. Further, in a related matter (Munshizada v R; Baines v R; Danishyar v R; Hosseinishoja v R; Shekeb v R; Sultani v R; Abdaly v R [2021] NSWCCA 307) in which a group of inter-gang members sought an extension of a non-publication order (claiming this for protection of fairness at trial), this Court (Basten JA, Adamson and Wright JJ), dismissing the application, said at [32]-[33] that:

[o]n one view, it might be possible to read down the term “information” as not extending to a verdict or reasons for judgment of, or evidence given in, another court. However, the effect of that would be to prevent publication of a judgment or committal proceedings in the Local Court, to protect a trial or an appeal in the District Court, and it would prevent a non‐publication order in relation to proceedings which had long since been completed and in relation to which there had been no order or refusal of an application for such an order, in the Supreme Court. Yet the republication of salacious material from the earlier trial might have a devastating effect on the fairness of a later trial involving the same offender. Such a reading is not plausible. The word “information” might be read so as to exclude only information resulting from a judgment of a higher court in the judicial hierarchy. However, in truth the Non‐publication Orders Act says nothing about the inter‐relationship between the powers of the various courts acting to protect their own functions.

The situation which arose in the present case is striking because proceedings in both the Supreme Court and the District Court were on foot at the same time. No doubt, even though made for different purposes, conflicting orders should properly be avoided. However, it is by no means clear that the application made to the District Court judge was inappropriate or improper. Judge Zahra clearly did not think so. Had he been minded to make an order in order to protect the administration of justice in his court, some further application to the Supreme Court would have been appropriate. However, the Supreme Court judge would not have had power to make an order in relation to proceedings in the District Court inconsistent with the order of the District Court judge, from whose order no appeal lay to a single judge in the Supreme Court. It might rather have been expected that the Supreme Court judge would have exercised a review of his own order to make it clear that his refusal to make such an order was not inconsistent with the order made by the District Court. [my emphasis]

  1. There, the principle of open justice was accorded priority.

  2. I do not accept that anonymisation is necessary in the present case. In respect of the solicitor advocate, the trial has now taken place. The solicitor advocate was a witness at the trial and, as I understand it, gave evidence in open court. In respect of the instructing solicitor, the only reference to the solicitor’s initials is in the annexure to the judgment which reproduces a file note and does not anywhere identify the solicitor by name.

  3. The fact that there are existing suppression orders that have been made in the District Court may well mean that any identification of the instructing solicitor and solicitor advocate in the CCA Judgment cannot be published or disclosed by a reader of the CCA Judgment without a potential breach of the District Court orders does not cause me to conclude that anonymisation is either necessary or desirable. There is no incoherence or inconsistency arising out of the decision not to anonymise the judgment once it is understood that suppression orders relate to the proceedings in which they are made (as the terms of the orders made by Gallagher DCJ in relation to TB make clear); not to proceedings in another court.

  4. The Crown’s application should be dismissed.

Application for suppression orders

  1. Turning then to the individual applicants’ application for suppression orders pursuant to s 7 of the CSPO Act, I start by observing that each of the grounds specified in s 8 of the CSPO Act requires that the order be “necessary” for the stated purpose of the particular sub-section.

  2. The High Court in Hogan v Australian Crime Commission (2010) 240 CLR 652; [2010] HCA 21, addressing s 50 of the Federal Court of Australia Act made clear (at [31]) that it is insufficient that the making or continuation of an order of this kind appears to the Court to be “convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some ‘balancing exercise’, the order appears to have one or more of those characteristics”. This was referred to by this Court in DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [40] and by the Victorian Court of Appeal more recently in Police Member 1 (a pseudonym) v Antonios Sajih Mokbel [2025] VSCA 34 (Mokbel) at [67]. In Mokbel, the Court (Niall CJ, Emerton P and J Forrest AJA) at [68] endorsed the observation of the primary judge to the effect that the fact that it might be reasonable to make a suppression order that was insufficient to satisfy the statutory threshold of necessity.

  3. Further, as Cavanagh J, in A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym) [2020] NSWSC 1713 (Nationwide News) noted (at [55]), mere embarrassment, discomfort or reputational damage are not sufficient (subject to the limited exception in s 8(1)(d)) to justify a departure from the principle of open justice. As to the importance of that principle, see what was said by McHugh JA in John Fairfax & Sons v Police Tribunal (NSW) (1986) 5 NSWLR 465, at 476-477 (John Fairfax), as cited in Mokbel at [66], also see in Commissioner of TheAustralian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 at [44].

  4. With the above in mind, I turn to the basis on which each of the individual applicants seeks the suppression order.

  5. As to the solicitor advocate, the application before the District Court invoked the grounds in s 8(1)(c) (necessary to protect the safety of any person); (d) (necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature); and (e) (otherwise necessary in the public interest and that public interest significantly outweighs the public interest in open justice).

  6. As to (c), the solicitor advocate relied on his evidence and that of his clinical psychologist to the effect that his mental health was vulnerable; disclosure of his name would have a detrimental impact on him; that impact would include worsening symptoms of anxiety, low mood and increased risk of suicidal ideation.

  7. As to (d), while accepting that mere embarrassment, discomfort or reputational damage would not be sufficient, it was submitted that those were matters that may be taken into account in addition to the risks of his mental health when considering whether the suppression of his name was necessary to avoid causing him undue distress or embarrassment.

  8. As to (e) it was submitted that the suppression and anonymisation of the solicitor advocate’s name would only encroach on the principle of open justice to a “very limited degree” and that there was a public interest in protecting the well-being and psychological safety of all participants in the criminal justice system, including prosecuting lawyers.

  9. The solicitor advocate’s 27 November 2023 affidavit deposed to a history of anxiety which he managed through medication, cognitive behavioural therapy and regular exercise (see [3]-[4]); to his anxiety, when he learnt of the basis of the stay application (that he had “coached” the complainant in the 2021 conference) ([11]-[12]); to the persistence of his anxiety, including occasional thoughts of self-harm leading up to the stay application ([15]-[26]); to his reaction to the criticisms made of his conduct by Pickering SC DCJ ([27]ff) and distress and worry when he learnt some time in late March or early April 2023 that a copy of Pickering SC DCJ’s judgment had been “circulating” amongst Crown Prosecutors based in the Sydney city office; and when a friend told him that she had heard that a solicitor in the office had said something to the effect that he had coached a witness; and similar distress when he read the stay judgment and learnt that it had been circulated within the ODPP. The solicitor advocate deposed to his concern that if his name was not suppressed in connection with the proceedings he would continue to experience anxiety triggered by people speaking to him or approaching him about the matter which in turn would cause him to have thoughts of self-harm; and as to his concern that not suppressing his name would be significantly detrimental to his professional reputation and adversely impact his career and the relationships with colleagues in criminal law.

  10. The solicitor advocate’s general practitioner by letter dated 21 November 2023 quantified his anxiety issue as moderate but opined that were his name to be published his mental health disorder would most likely become severe.

  11. In a subsequent affidavit of 9 July 2024, the solicitor advocate deposed to communications in relation to the expiry of the interim suppression order and his ongoing treatment with a psychologist from whom he was seeking a report to support an application for final orders. Those orders were made in chambers on 22 July 2024 “upon the grounds set forth in” the solicitor advocate’s two affidavits. The orders were stated to apply on an interim basis pending the conclusion of the trial listed to commence on 11 November 2024 and thereafter on a final basis for five years. I note that those orders were stated not to prohibit disclosure of information tending to reveal the identity of the applicant in evidence given or submissions made before a court in the course of the proceedings.

  12. Finally, by letter dated 24 November 2024, Dr Clara Fritchley set out the mental health history given by the solicitor advocate; the commencement of psychological treatment in June 2024 (when he said he was highly anxious about the possibility of an impending criminal trial where he might be required to give evidence; and her psychometric assessment of him). Dr Fritchley stated that his scores on a self-report measure (Depression Anxiety Stress Scales) placed him in the moderate range for depression and the high range for anxiety and stress. Dr Fritchley reported that in her opinion the lifting of the suppression order protecting his identity would have a detrimental impact upon his mental health. She noted that his mental health was vulnerable and his identity being made public was likely to aggravate his mental health condition, placing him at risk of worsening symptoms of anxiety and low mood and increased risk of experiencing suicidal ideation. Dr Fritchley also stated that making his identity public had the potential negatively to impact his professional reputation, damage his career and impact his relationship with colleagues, all of which would further increase his distress.

  13. As to the instructing solicitor, reliance was placed on the report dated 26 June 2023 of Dr Catriona Daly to whom the instructing solicitor had been referred for psychological intervention for subclinical anxiety in December 2021. Dr Daly reported that progress had been made in managing her symptoms but that she “re-engaged” in October 2022 in the context of stress and overwhelm [sic] associated with professional conduct proceedings. Dr Daly reported that the self-screening on 10 May 2022 placed her in the normal range for depression, anxiety and stress but that on 16 June 2023 the scores were in the moderate range for anxiety and mild range for stress, suggesting that she was experiencing some symptoms of stress and clinically notable levels of anxiety at the time or re-assessment.

  14. Dr Daly assessed the instructing solicitor as meeting the criteria for Adjustment Disorder with mixed anxiety and depressed mood as identified in the DSM-5. Dr Daly predicted that if the work related stressor and its consequences were removed or resolved the symptoms would subside within a period of six months; and said that a permanent suppression order “may allow” for the improvements reported following the interim suppression order to continue.

  15. Relevantly, Ms Purcell’s affidavit of 14 March 2023 deposed to her instructions and belief that the instructing solicitor has recently moved interstate and is no longer employed by the ODPP but expressed the understanding that she “remains acutely vulnerable, the source of that vulnerability being these proceedings”.

  16. In AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 at [59] the word “safety” in sub-s (1)(c) was accepted to include psychological safety including aggravation of a pre-existing mental condition and the consequential risk of self-harm. In that case the Court (Hoeben CJ at CL, Price and Adamson JJ) held that the purpose of this sub-section (to provide a mechanism to protect the safety of person who would otherwise be endangered by publication of proceedings in accordance with the principles of open justice) was more effectively advanced by the calculus of risk approach, which was therefore to be preferred ([58]). The Court there referred to what was said by Nettle J in AB (A pseudonym) v CD (a pseudonym) [2019] HCA 6 at [15], Nettle J said that “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”.

  17. Cavanagh J, in the Nationwide News case, held that a person’s belief that a psychological condition may be exacerbated would of itself generally be insufficient for the purposes of establishing that an order is necessary to protect the safety of the person (noting what was said in John Fairfax at 477 that mere belief that an order is necessary is insufficient) (at [83]). His Honour also noted that there would need to be some expert evidence that enabled the court to assess the likelihood and gravity of the risk of self-harm where that is the context of the safety ground (at [84]).

  18. I am not satisfied that, on the proper application of the calculus of risk approach, a suppression order should be made in relation to either of the individual applicants on the ground set out in s 8(1)(c). This is for the following reasons.

  19. In both cases the mental health condition is one of anxiety and depressed mood (the latest medical opinion in relation to the solicitor advocate being in November 2024 when he was assessed as being in the moderate range for depression and the high range for anxiety and stress; the latest for the instructing solicitor being in June 2023 when she was assessed as being in the moderate range for anxiety and mild range for stress). Both appear to have engaged in counselling and psychological treatment.

  20. The solicitor advocate explained in his first affidavit the coping mechanisms he had adopted when the issue in relation to the criminal proceedings involving MA and AD first arose. His affidavit also deposed to counselling in the work place in relation to the conduct the subject of criticism by Pickering SC DCJ. Any potential negative impact on his professional reputation or damage to his career can logically only come from consideration of his conduct in the proceedings (not his naming) given that his employer is already well aware of the conduct in question. The trial has concluded, and the solicitor advocate no longer has the anxiety relating to giving evidence in that trial to which he deposed.

  21. The calculus of risk approach requires consideration of the nature, imminence and degree of likelihood of harm occurring. I accept that the medical report opines that identification of the solicitor advocate is likely to “aggravate” his mental health condition, placing him at risk of “worsening symptoms of anxiety and low mood” and “increased risk of experiencing suicidal ideation” but the former (worsening symptoms of anxiety and low mood) is not in my opinion harm of a severe nature and the latter (increased risk of experiencing suicidal ideation) does not suggest a real or imminent likelihood of actual self-harm. It should be remembered that the solicitor advocate has experienced those conditions in the past and has been able to adopt coping mechanisms for them. Embarrassment, discomfort or shame at his conduct or what others might say or think about his conduct is not sufficient, as already noted. All professionals make mistakes from time to time. Hopefully, they learn from them. In the present case, the inappropriate conduct has been acknowledged and all parties can now move on.

  22. It must be borne in mind that suppression orders are, and should be, regarded as an exceptional departure from the principle of open justice (see Spigelman CJ in John Fairfax at [21]). The potential for worsening symptoms of anxiety and stress even with the possibility of an increased risk of suicidal ideation does not to my mind mean that a suppression order is necessary to protect the applicant’s mental health; and it does not outweigh the principle of open justice. As s 6 requires, I take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

  23. As to the position of the instructing solicitor, the position tends even more strongly against the necessity of a suppression order. Dr Daly considered in June 2023 that if the work related stressor and its consequences were removed or resolved the symptoms would subside within a period of six months. Not only has that period well and truly elapsed but the position of the instructing solicitor has changed significantly (in that she is no longer employed by the ODPP and has moved interstate). The highest her position is put is her solicitor’s ‘understanding’ that she remains acutely vulnerable and attributing that vulnerability to these proceedings. The proceedings are, however, at an end (save for the application now made for a suppression order). Applying the calculus of risk approach, I am not persuaded that there is a necessity for a suppression order.

  24. The solicitor advocate’s reliance on the grounds in s 8(1)(d) and (e) can be disposed of briefly. The solicitor advocate has now given his evidence as a witness at the trial. I cannot see that his anxiety in relation to exposure of his conduct of the matter comes anywhere close to “undue distress or embarrassment” and it has no connection with the fact that the proceedings are sexual assault proceedings and that impermissible coaching of a witness could occur in any kind of criminal prosecution or other proceeding. In other words, it is not the fact that the solicitor advocate was giving evidence in proceedings that involved alleged sexual assault charges that gave rise to his anxiety. As to the submission that the public interest in the administration of justice extends to the protection of those who work in the prosecution of criminal trials, that may readily be accepted. However, for the reasons that I do not consider that s 8(1)(c) is satisfied, I do not accept that the making of a suppression order in this case is necessary for the public interest in the administration of justice, in circumstances where it does not outweigh the significant public interest in open justice.

Conclusion

  1. For the above reasons, I consider that the respective notices of motion should be dismissed and that the CCA Judgment should now be published without anonymisation or redaction.

  2. SWEENEY J: I agree with Ward P.

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Decision last updated: 14 April 2025

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