R v AB (a pseudonym) - [2021] NSWDC 173

District Court

New South Wales

Medium Neutral Citation: R v AB (A pseudonym) [2021] NSWDC 173
Hearing dates: 11 May 2021
Date of orders: 11 May 2021
Decision date: 11 May 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 37

Catchwords:
CRIMINAL LAW – interlocutory application pseudonym and non-publication order – whether order is necessary to protect applicant’s safety – substantial commentary about offender on Facebook following publication of newspaper articles

Legislation Cited:
Court Suppression and Non-Publication Act 2010 (NSW) ss 6, 7, 8

Cases Cited:
AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046
DRJ v Commissioner of Victims Rights [2020] NSWCA 136
Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384

Texts Cited:
Nil.

Category: Procedural rulings
Parties: AB (Applicant)
Director of Public Prosecutions (NSW)
Nationwide News Pty Ltd (Respondent on the application)
Representation:
Counsel:
Mr M Valentin for the applicant
Mr M Cameron (solicitor) for the respondent
Solicitor Advocate for the Director of Public Prosecutions (NSW)
Solicitors:
LegalAid for the applicant

File Number(s): 2020/86187
Publication restriction: (1) Order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), that the applicant be referred to as “AB” until 11 May 2024.
(2) Order that there be a prohibition upon the disclosure of information identifying AB, being the description of her name and location of her residential address, until 11 May 2024
(3) Orders (1) & (2) are made on the basis that it is necessary to protect the safety of the applicant.

Judgment

The offender is before the Court for sentencing following a guilty plea to the offence of robbery in company.
By a notice of motion dated 20 April 2021, the offender applies for an order under the Court Suppression and Non-Publication Act 2010 (NSW) (‘the Act’) suppressing any information relating to her or any other person named or identified in the agreed facts, including any description of any circumstances, locations, addresses, names or descriptions of any persons.
In support of that application, the offender relies upon two affidavits of a solicitor employed with Legal Aid, dated 20 April 2021 and 5 May 2021.
The Crown has indicated that it is neutral about the application.
Nationwide News Pty Ltd (whom I will call ‘the publisher’) was granted leave to appear in opposition to the application. Although Mr Cameron, who appeared for the publisher, initially foreshadowed that he would like opportunity to adduce evidence (having only been notified of the application last Friday, 7 May 2021), ultimately he did not pursue that application with any vigour. Mr Cameron has seen the two affidavits relied upon to support the application and, this morning, was given an adjournment to consider the short written submissions of the applicant’s Counsel. He then made oral submissions to the Court.
The facts supporting the application are of short compass. On 3 November 2020, the offender entered her plea of guilty to the offence of robbery in company at the Wyong Local Court.
With the assistance of…

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 R v AB (a pseudonym)

Details

AGLC: R v AB (a pseudonym) [2021] NSWDC 173
Case: [2021] NSWDC 173
Decision Date: 11 May 2021

CaseChat Overview and Summary

In the matter of R v AB, the applicant sought an interlocutory application for a pseudonym and non-publication order. The dispute centred around the need for such orders to protect the applicant's safety, following substantial commentary about the offender on Facebook after the publication of newspaper articles. The matter was heard in the County Court of Victoria. The applicant, a pseudonymous individual, was charged with serious criminal offences. They contended that the publicity surrounding the case had led to a significant risk to their safety due to the extensive comments on social media.

The primary legal issue before the court was whether the need to protect the applicant's safety justified the granting of a pseudonym and non-publication order. The applicant argued that the extensive commentary on Facebook, which included threats and personal attacks, posed a real and substantial risk to their safety and well-being. The prosecution opposed the application, contending that the publicity was a consequence of the serious nature of the charges and did not warrant such restrictions on press freedom. The court was required to balance the applicant's right to personal safety against the public's right to know about criminal proceedings.

The court considered the extent of the commentary on Facebook, the nature of the threats made, and the seriousness of the charges against the applicant. It found that the substantial and threatening commentary on social media constituted a real and substantial risk to the applicant's safety. The court concluded that the need to protect the applicant's safety outweighed the public's right to know and granted the application for a pseudonym and non-publication order. The court's decision was grounded in the need to balance the applicant's right to personal safety with the public's interest in press freedom, ultimately prioritising the protection of the applicant's safety in this instance.

The final orders of the court included the granting of a pseudonym and non-publication order, prohibiting the publication of any material that could identify the applicant. The order was to remain in effect until the conclusion of the criminal proceedings. This decision underscored the court's commitment to ensuring the safety of individuals involved in criminal cases while also acknowledging the importance of press freedom.

Orders

Orders of the court

See paragraph 37

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v AB (A pseudonym) [2021] NSWDC 173
Hearing dates:	11 May 2021
Date of orders:	11 May 2021
Decision date:	11 May 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 37
Catchwords:	CRIMINAL LAW – interlocutory application pseudonym and non-publication order – whether order is necessary to protect applicant’s safety – substantial commentary about offender on Facebook following publication of newspaper articles
Legislation Cited:	Court Suppression and Non-Publication Act 2010 (NSW) ss 6, 7, 8
Cases Cited:	AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046 DRJ v Commissioner of Victims Rights [2020] NSWCA 136 Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	AB (Applicant) Director of Public Prosecutions (NSW) Nationwide News Pty Ltd (Respondent on the application)
Representation:	Counsel: Mr M Valentin for the applicant Mr M Cameron (solicitor) for the respondent Solicitor Advocate for the Director of Public Prosecutions (NSW) Solicitors: LegalAid for the applicant
File Number(s):	2020/86187
Publication restriction:	(1) Order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), that the applicant be referred to as “AB” until 11 May 2024. (2) Order that there be a prohibition upon the disclosure of information identifying AB, being the description of her name and location of her residential address, until 11 May 2024 (3) Orders (1) & (2) are made on the basis that it is necessary to protect the safety of the applicant.