O'Dell (a pseudonym) v The King - [2023] NSWCCA 46

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: O’Dell (a pseudonym) v R [2023] NSWCCA 46
Hearing dates: On the papers
Decision date: 15 March 2023
Before: Leeming JA; Adamson JA; Garling J
Decision:
1. Order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the ground stated in s 8(1)(c), that there be no publication or disclosure of the judgment [2022] NSWCCA 292 anywhere in the Commonwealth for a period of thirty years from today, except to the extent as is found in Annexure A to this judgment.
2. Otherwise dismiss the notice of motion filed by the Commissioner of Police.
3. Exhibits to be returned.

Catchwords:
JUDGMENTS – publication of reasons – unopposed application for orders under Court Suppression and Non-publication Orders Act 2010 (NSW) – whether necessary to make orders in relation to entirety of judgment – more limited order made

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8, 11, 12

Cases Cited:
HT v The Queen (2019) 269 CLR 403; [2019] HCA 40
Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Category: Consequential orders
Parties: O’Dell (a pseudonym) (Applicant, Respondent to the motion)
Rex (Respondent)
Commissioner of Police (Applicant on the motion)
Representation:
Counsel:
Solicitors:

File Number(s): xxxx/xxxxxx
Publication restriction: Order 1 prevents publication of an unredacted version of the judgment (a redacted version of which is Annexure A).
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

xxxx

Date of Decision:

xxxx

Before:

xxxx

File Number(s):

xxxx/xxxxxx

JUDGMENT

THE COURT: These are our reasons on an application made on behalf of the NSW Commissioner of Police for a non-publication order over a judgment of this Court which granted leave but dismissed an appeal against the sentence imposed by the District Court in respect of a number of serious offences.
The sentencing proceedings in the District Court were heard in closed court and were subject to a suppression order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW). That order was made because the offender had given assistance to the authorities. The reasons for sentence have not been published.
This Court heard the appeal against sentence in closed court. We took that highly unusual course so as to permit a free exchange of submissions on the quality of the assistance provided by the offender to the authorities, in circumstances where there was evidence that the offender’s wellbeing, and the wellbeing of those close to the offender, would be in danger if the offender’s identity were disclosed. We indicated during the hearing that we would not publish the Court’s judgment on NSW Caselaw or otherwise make it available until the parties and the Commissioner of Police had first had an opportunity to make an application under the Court Suppression and Non-publication Orders Act.
Two of the grounds of appeal, concerning alleged errors as to…

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 O'Dell (a pseudonym) v The King

Details

AGLC: O'Dell (a pseudonym) v The King [2023] NSWCCA 46
Case: [2023] NSWCCA 46
Decision Date: 15 March 2023

CaseChat Overview and Summary

In the District Court of New South Wales, the case of O'Dell (a pseudonym) v The King involved a dispute concerning the publication of reasons for judgment. The applicant, O'Dell, sought orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) to suppress and prohibit the publication of certain details from the judgment. The matter was before the District Court, and the application was made unopposed.

The legal issue the court had to address was whether the orders should apply to the entirety of the judgment or if a more limited order could be made. The court had to balance the public interest in open justice and the protection of privacy and other interests that the applicant sought to safeguard. The court considered the specific sections of the judgment that O'Dell sought to have suppressed and the potential impact of such suppression on the public's right to access court decisions.

The court found that a more limited order was appropriate, given the specific nature of the information O'Dell sought to suppress. The court was satisfied that the order could effectively protect the relevant interests without unduly limiting the public's access to the reasons for judgment. The court made orders that were tailored to the specific details O'Dell wished to suppress, thereby achieving a balance between the competing interests. The final orders included suppression of the specific details identified by the applicant and a prohibition on the publication of those details.

Orders