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

1. 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.

2. 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.

3. 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.

4. Two of the grounds of appeal, concerning alleged errors as to the objective seriousness of the offending and a ground based on parity, raised no question of principle and were rejected. The third ground concerned an attempt to use evidence of events after imposition of sentence in order to impugn the assessment of the value of the assistance provided by the offender to the authorities. Two members of the Court formed the view that that evidence was not admissible, because it did not establish that the offender had been sentenced on any erroneous basis. One member of the Court concluded that the material was admissible, and that the Court should proceed to resentence. However, all members of the Court were of the view that even if the evidence were admitted, a sentence less than that imposed by the District Court would be unreasonably disproportionate to the nature and circumstances of the offending. That was the basis on which, although there was a grant of leave, the appeal was dismissed.

5. In accordance with orders made when judgment was delivered, the Commissioner made an application that there be no publication or disclosure of the Court’s judgment and other materials relevant to the appeal, for a period of 30 years. In the alternative, the Commissioner proposed a highly redacted form of the Court’s reasons for judgment, so as not to disclose information which might identify the offender.

6. The Commissioner’s application was not opposed by the Crown and was consented to by the offender. The Crown helpfully identified the relevant principles. The starting point is that “a primary objective of the administration of justice is to safeguard the public interest in open justice”: s 6 of the Court Suppression and Non-publication Orders Act. As was noted in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27], that provision “reinforces the legislative intention that [orders under the Act] should only be made in exceptional circumstances”. In HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 at [82], Gordon J observed, in relation to the inherent power of superior courts to make comparable orders, that “[a]ny such prohibition must do no more than is reasonably necessary to achieve the due administration of justice, based on the material before the court”.

7. The evidence which was read on the application persuades us that it is necessary to make an order under the Act to protect the safety of any person within the meaning of s 8(1)(c), and that the order should be in place for the 30 year period nominated by the Commissioner of Police and should apply throughout the country. In accordance with ss 11 and 12, the geographic and temporal extent of the order will be apparent on its face. As the Crown submitted, in order to achieve that goal, it is necessary to avoid publishing a variety of details which might permit investigations to identify the offender. It is for that reason that neither this judgment nor the annexure to it contains a court file number, or identifies any legal practitioner, or says anything about the offending, including dates and the nature of the assistance.

8. The Commissioner’s primary submission was that there be no publication or disclosure of any aspect of the judgment, or, for that matter, of the fact that the Commissioner’s application had been made or its outcome. But the evidence does not establish that it is “necessary” to take that course. We are satisfied that the judgment may be published in redacted form, so as to accord with the primary objective of safeguarding the public interest in open justice, but nonetheless preventing the disclosure of information which may identify the offender.

9. On that basis, Annexure A contains the majority of this Court’s reasons for dismissing the appeal. It omits details which will, or may, facilitate the identification of the offender.

10. The fact that it has been possible to publish a deal of the Court’s reasons, including the essence of why the appeal was dismissed, without disclosing information from which the offender’s identify may be inferred, is dispositive of the more extreme aspect of the Commissioner’s application. If this explanation and the judgment in redacted form can be done, then it is not “necessary” for the purposes of s 8 to make a more sweeping order.

11. The course we have taken is not the usual course which is taken in those rare cases where there is a proper basis for ordering that parts of this Court’s reasons for judgment not be published. We regard the circumstances in the present case as wholly exceptional.

12. Finally, we note that we will delay publishing these reasons (including Annexure A) on NSW Caselaw for 14 days from today, against the possibility that there is some aspect which we have overlooked. As presently advised, what has been said above is sufficient to explain the basis upon which the Court dismissed the appeal against sentence, and does not disclose information which might endanger the offender or those close to the offender, but if a party or the Commissioner is of a different view, application may be made to the presiding Judge’s Associate within that time period.

13. For those reasons, the Court makes the following orders:

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.

ADDENDUM

14. In accordance with the course summarised in [12] above, the Commissioner pointed to one matter in Annexure A which should also, consistently with our reasoning, not have been published. The version of the judgment in that Annexure has been amended, pursuant to the slip rule, so as to omit reference to that matter.

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Decision last updated: 06 April 2023