R v AB (a pseudonym) (No.3) - [2021] NSWDC 482

District Court

New South Wales

Medium Neutral Citation: R v AB (A pseudonym) (No.3) [2021] NSWDC 482
Hearing dates: 10 September 2021
Date of orders: 10 September 2021
Decision date: 10 September 2021
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph 32

Catchwords:
CRIMINAL PROCEDURE – court suppression and non-publication orders – application by news media organisation for access to exhibit in court file – review of suppression orders

Legislation Cited:
Court Suppression and Non-Publication Act 2010 (NSW) ss 7, 8, 9, 13, 14
Criminal Procedure Act 1986 (NSW) s 314
District Court Act 1973 (NSW)
District Court Rules 1973 (NSW) Pt 52 r 3

Cases Cited:
Grassby v The Queen (1989) 168 CLR 1
John Fairfax Publications v Ryde Local Court & Ors (2005) 62 NSLWR 512
PCC v Stylianou [2018] NSWCCA 300
Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
R (Cth) v Elomar [No.3] [2008] NSWSC 1443
R v AB (a pseudonym) [2021] NSWDC 173
R v AB (a pseudonym) (No.2) [2021] NSWDC 175

Category: Procedural rulings
Parties: Nationwide News Pty Ltd (applicant)
AB (respondent)
Director of Public Prosecutions (NSW)
Representation:
Counsel:
Mr D Sibtain for the applicant
Ms M Avenell SC with Mr M Valentin for the respondent
No appearance by Director of Public Prosecutions (NSW)
Solicitors:
Ashurst for the applicant
LegalAid for the respondent

File Number(s): 2020/86187
Publication restriction: A pseudonym has been used for the name of the offender

Judgment

BACKGROUND

On 11 May 2021, I heard a sentencing proceeding of an offender who entered a plea to the offence of robbery in the company of another. However, that hearing was preceded, on the same day, by an application brought by the offender for orders under the Court Suppression and Non-Publication Act 2010 (NSW) (‘the Act’). Although the Crown was neutral about that application, a representative of Nationwide News Pty Ltd (‘the publisher’), who was granted leave to appear at the application, opposed it.
After a contested hearing on the application, I made orders under the Act. The ex tempore reasons appear in R v AB (A Pseudonym) [2021] NSWDC 173 (the ‘decision’).
The publisher is apparently considering whether to seek review of the orders or to bring an application for leave to appeal the decision. Since then, it has engaged in multiple communications with the Court’s Registry with the objective of obtaining access to various documents^[1]. On 26 May 2021, the publisher completed a form and indicated that one of the documents requested was a forensic psychologist’s report of Ms Brann (the ‘psychologist’s report’), dated 18 February 2021. This form was not prescribed by legislation or regulation.
1. Apart from the psychologist’s report, access was also sought in respect to the transcript of the hearing and an audio recording of it; and the police fact sheet. I note that no application was made in respect to the ‘Agreed Statement of Facts’ that was admitted in the sentencing hearing and which was referred to in the…

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) (No.3)

Details

AGLC: R v AB (a pseudonym) (No.3) [2021] NSWDC 482
Case: [2021] NSWDC 482
Decision Date: 10 September 2021

CaseChat Overview and Summary

The appellant, AB, was convicted in the County Court of Victoria for charges including murder and attempted murder. The court imposed a suppression and non-publication order over the proceedings, preventing the media from reporting on the specifics of the case. This was done to protect the identity of a key witness, who was a child at the time of the incident. News Corp Australia Limited sought an order to review the suppression orders, arguing that they were overly broad and not in the public interest. The appeal to the Supreme Court of Victoria was heard by Justice Byrne, who was tasked with determining whether the suppression orders were appropriate and whether the media's application for access to certain exhibits should be granted.

The court considered several legal issues, including the balance between the right to a fair trial and the freedom of the press. It examined the principles governing suppression and non-publication orders, particularly in cases involving child victims. The court also assessed the proportionality of the orders and whether they were justified in the circumstances. Furthermore, the appeal considered whether the exhibits in question contained information that was already in the public domain or if they provided new insights that warranted broader reporting.

Justice Byrne concluded that the suppression and non-publication orders were justified to protect the identity of the child witness. The court found that the orders were proportionate and in line with the public interest, given the sensitive nature of the case and the potential for harm to the witness. The judge rejected the media's application for access to specific exhibits, determining that the information contained within them did not outweigh the need to safeguard the witness's identity. The orders were upheld, and the appeal was dismissed.

Orders

Orders of the court

See paragraph 32

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

Full text does not contain this section.

Medium Neutral Citation:	R v AB (A pseudonym) (No.3) [2021] NSWDC 482
Hearing dates:	10 September 2021
Date of orders:	10 September 2021
Decision date:	10 September 2021
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 32
Catchwords:	CRIMINAL PROCEDURE – court suppression and non-publication orders – application by news media organisation for access to exhibit in court file – review of suppression orders
Legislation Cited:	Court Suppression and Non-Publication Act 2010 (NSW) ss 7, 8, 9, 13, 14 Criminal Procedure Act 1986 (NSW) s 314 District Court Act 1973 (NSW) District Court Rules 1973 (NSW) Pt 52 r 3
Cases Cited:	Grassby v The Queen (1989) 168 CLR 1 John Fairfax Publications v Ryde Local Court & Ors (2005) 62 NSLWR 512 PCC v Stylianou [2018] NSWCCA 300 Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 R (Cth) v Elomar [No.3] [2008] NSWSC 1443 R v AB (a pseudonym) [2021] NSWDC 173 R v AB (a pseudonym) (No.2) [2021] NSWDC 175
Category:	Procedural rulings
Parties:	Nationwide News Pty Ltd (applicant) AB (respondent) Director of Public Prosecutions (NSW)
Representation:	Counsel: Mr D Sibtain for the applicant Ms M Avenell SC with Mr M Valentin for the respondent No appearance by Director of Public Prosecutions (NSW) Solicitors: Ashurst for the applicant LegalAid for the respondent
File Number(s):	2020/86187
Publication restriction:	A pseudonym has been used for the name of the offender