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

1. 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.

2. 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’).

3. 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 decision and the later sentencing remarks.

4. The Court’s Registry has permitted access to some of those documents. However, on 16 June 2021, the Registry notified the publisher’s lawyers that access to the psychologist’s report was withheld.

5. After it obtained access to the transcript of the hearing of the application on 11 May 2021, on 3 August 2021, the publisher’s lawyers sent another letter to the Registrar, asking it to reconsider the decision to withhold access to the psychologist’s report, to facilitate its ability to advise the publisher about a possible appeal from the decision. By a communication to the publisher’s solicitors on 13 August 2021, the Registrar adhered to his position in withholding access.

6. By a notice of motion dated 7 September 2021, the publisher applies for access, including photocopying access, to Ms Brann’s report. It relies upon the affidavit of Nicholas James Perkins sworn on 7 September 2021. After citing the facts, Mr Perkins says that the ultimate purpose of obtaining access to the report is to enable the publisher to consider whether to seek a review of the suppression order ^[2] , or to seek leave to appeal to the Court of Appeal against the suppression order ^[3] .

   2. Under s 13 of the Act

   3. Under s 14 of the Act

7. The offender opposes that application. The Crown indicated that it did not wish to appear.

8. These reasons assume familiarity in the reader with the decision.

Powers to make the order

9. No reference was made by the publisher, in the notice of motion or the written submissions of its Counsel in support, for the source of the Court’s power to make the requested order.

10. Ms Avenell SC, who appeared with Mr Valentin for the offender (respondent in the application), submitted that the application was, in substance, a third-party application for leave to access evidence in the sentencing hearing: District Court Rules 1973 (NSW), Part 52 r 3(2), and that leave should not be granted because of the discretionary reasons she cites. I am not convinced that the publisher’s entitlement to bring the application is as narrow as Ms Avenell SC contends.

11. By s 314 of the Criminal Procedure Act 1986 (NSW), media organisations are entitled to apply for access to court documents relating to criminal proceeding and provisions regulate what the registrar may make available. However, by 314(1), by its terms, the provision is directed to facilitating access for a limited purpose: the compilation of fair report of criminal proceedings for publication ^[4] . That, as I have indicated, is not the purpose of the current application. The purpose here is to obtain access to a court document relating to a criminal proceeding for the purpose of considering and possibly bringing and prosecuting an application for review, or alternatively, appeal against the decision on 11 May 2021. I note that by s 314(4A), the provision is not intended to represent any code for all the circumstances under which a person may inspect documents relating to criminal proceedings.

    4. R (Cth) v Elomar [No.3] [2008] NSWSC 1443 at [10]

12. The Act provides a more promising basis for the application.

13. It is to be recalled that the power which the Court exercised on 11 May 2021 was, material to this application, being a suppression order upon the disclosure of information (order 2), exercised under s 7(b) of the Act, being “evidence, or information about evidence, given in proceedings before the Court”. The psychologist’s report fits within that description. As indicated, the publisher was granted leave to appear on the application, consistently with s 9(2)(d) of the Act. Section 9(4) of the Act empowers the Court to impose “exceptions and conditions as the court thinks fit” on a suppression order.

14. Section 13 of the Act provides for review of suppression orders. Such review may be conducted by this Court, as the court which made the suppression order on 11 May 2021: s 13(1). The Court may conduct such review on its own initiative: s 13(1). By s 13(3), the Court is empowered to “confirm, vary or revoke the order and may in addition make any other order that the court may make under this Act”. (emphasis supplied). In my view, “any other order that the court may make under this Act’ encompasses the “exceptions and conditions as the court thinks fit” which is referred to in s 9(4). That being so, by its terms, it seems to me that this Court, on a review (even on its own initiative) would be empowered to impose an exception, or variation, so as to permit disclosure of the psychologist’s report for a specific and limited reason.

15. Section 14 of the Act provides for appeals. The publisher has standing to bring such appeal (s 14(3)(d)). Notably, an appeal is by way of rehearing and fresh evidence may be given in addition to, or substitution for the evidence that was before the Court on 11 May 2021: s 14(5).

16. What is pertinent, however, from this review of the structure of the Act is that:

1. this Court may, on its own initiative, review a suppression order it made;

2. as part of that review, this Court is capable of carving out an exception to the suppression order to permit disclosure of the psychologist report;

3. the publisher also has standing to seek leave to appeal the suppression order;

4. upon any such appeal against the suppression order, the publisher would be entitled to rely on fresh evidence.

17. It is true, as the publisher indicated in its correspondence with the Registry, that in my decision I referred to the psychologist’s report; although did not specifically identify the content of that report. As the publisher also correctly indicated in its correspondence attached to Mr Perkins’ affidavit, in the sentencing hearing, the psychologist’s report was also admitted. Ultimately, the psychologist’s report was referred to extensively in my sentencing remarks, which have now been publicly available for some time ^[5] .

    5. R v AB (A pseudonym) (No.2) [2021] NSWDC 175

18. In my opinion, it is at least conceivable, or reasonably arguable, that an appellate court may, in any application for leave to appeal the decision to make the suppression order, be influenced in its determination of the correctness of my decision by the content of the psychologist’s report. It seems to me, therefore, that the Court is empowered to make an exception to the suppression order, so as to permit the Registrar to disclose the psychologist’s report to the publisher, in order to facilitate the publisher’s consideration for bringing and, thereafter, an appellate Court’s determination of, any appeal against the decision. The same position pertains to consideration by the publisher of an application for review of the suppression order. I consider that this power arises as a matter of construction, if not implication, from the provisions of the Act that I have referred to.

19. Alternatively, it is also arguable that the Court, being a court of limited statutory jurisdiction, has an implied power to make the order to regulate its processes and proceedings: Grassby v The Queen (1989) 168 CLR 1. The test for the implication identified in that case is one of necessity: Dawson J at 16. This Court’s ability to make orders under the Court’s implied power was also considered, in the civil context, in Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 452, characterising it as a power to make order which were reasonably required or legally ancillary to other powers under the District Court Act 1973 (NSW). As was later indicated in the Court of Appeal’s decision, ‘necessity’ does not mean ‘essential’, but has a connotation of reasonableness: John Fairfax Publications v Ryde Local Court & Ors (2005) 62 NSLWR 512 per Spigleman CJ (Mason P and Beazley JA agreeing) at [44]-[46]. In PCC v Stylianou [2018] NSWCCA 300, the Court of Criminal Appeal also recently referred to this Court’s implied powers to do what is necessary to enable it to act effectively within its jurisdiction: Macfarlan JA (Rothman J at [51]-[53] and R A Hulme J agreeing at [19]). It is clear that this Court when exercising review of its decision to make orders under the Act is properly acting within its jurisdiction. However, in view of the conclusion I have reached about the Act itself being the source for the exercise of the power, it is unnecessary to consider the scope of the implied power.

20. Finally, if necessary, the publisher may rely upon Part 52 r 3(2) of the Court Rules; although it will need the Court’s leave to do so. In my opinion, the same considerations that the Court may take into account in determining whether an exception or variation may be made to the suppression order will be relevant to whether leave should be granted under this Court rule.

21. Accordingly, I am satisfied that the Court is empowered to make the order sought. As I understood her, Ms Avenell ultimately agreed that the application rises or falls according to the exercise of discretion. I now turn to the merits of the application.

Standard of review

22. As I have indicated, what is sought is, in substance or effect, an exception, or carve-out from the order for suppression. The question of whether to accede to that application is informed by the considerations which led to the order in the first place. These are set out in ss 6 and 8 of the Act. However, it is not necessary to revisit the considerations which led to the decision. This is not an application that concerns the merits of the decision to impose the suppression order. That may be the subject of any prospective appeal or application for review by the publisher.

Discretionary considerations

23. As I have also indicated, the carve out is sought for limited purposes: most immediately, to facilitate the publisher’s consideration of whether or not to apply for review, or appeal but also, should such appeal or application for review be brought, to provide an opportunity for the publisher (or for that matter, the offender) in a position to refer to the psychologist’s report as fresh evidence on the appeal.

24. Prima facie, these are legitimate purposes. Mr Sibtain, Counsel for the publisher, argued that in the circumstances that occurred at the hearing, the publisher should have had access, there and then, to the psychologist’s report. In view of the second point raised by Ms Avenell, there may be some force to that submission. He also argued that in any application for review (especially before another Judge of this Court) or on any application for leave to appeal, it will be practically incumbent upon the publisher to have the psychologist’s report before that tribunal, given my expressed reliance upon it. I am not necessarily convinced that this is so on any application for review, but there is force to the submission to the extent that any application may be brought for leave to appeal.

25. Ms Avenell argued against the application for the following reasons:

1. providing access to the publisher of the report “arguably” would involve the Court contravening its own suppression orders;

2. the publisher does not need the report to apply for a review (on the merits of the suppression order) or for leave to appeal. It might do so because it is already open to it to argue, at least on any application for leave to appeal, that the Court denied the publisher procedural fairness by relying upon the report which was not in evidence on the application;

3. the publisher was on notice about the psychologist’s report at the hearing: the report had been referred to, and relied upon, by the offender (then, the applicant) in her written submissions on the application;

4. the publisher already has sufficient information to decide whether to seek review (on the merits of the order) or to seek leave to appeal: it not only obtained a transcript of the hearing of the application, but also a transcript of the hearing of the sentencing proceeding; and also received an explanation in the Court’s reasons as to how it relied upon the psychologist report (at the hearing of the application).

26. In relation to point (c), I note that Mr Cameron, who appeared for the publisher on the application, acknowledged that he had the opportunity of considering the offender’s written submissions on the application (11/5/21, T 4.6 on the application for suppression order).

27. I do not find any of these points convincing reasons against the application.

1. As to (a) the Court is not contravening its own orders where it is exercising a power to make an exception to them;

2. As to (b) if there was an arguable denial of procedural fairness by the report not being in evidence, this point may have no real force if it was shown that even if the report was in evidence, it would not have made any practical difference to the outcome. At any rate, I agree with Mr Sibtain, Counsel for the publisher, that the availability of one arguable ground of appeal should not preclude the publisher from ascertaining whether it has another good point. Ms Avenell countered this by saying that the publisher could have gone about obtaining the report in another way. If, for example, it brought an application for leave to appeal on a ground of procedural fairness, at the time of such application, it might call for the production of the document. I do not find persuasive this line of reasoning. Indeed it seems to me to be putting off for another day that which can, and should be determined now. I accept Mr Sibtain’s point that if Ms Avenell is right when she says that the publisher already has a good appeal point on procedural fairness, and it could not be said to fanciful, there is even more reason to enable the publisher to determine, sooner rather than later, whether an appeal should be pursued in the light of the content of the report.

3. As to (c), if Ms Avenell’s point about an arguable denial of procedural fairness is a potentially good one, the circumstance that the report was in the then Counsel for the offender’s written submissions may not assist the offender in this application. The reference to it in the written submissions may have indicated that it would be tendered, but it was not tendered by the then Counsel for the offender. The publisher could not be responsible for the omission. Another related submission made by Ms Avenell in argument was that if the publisher had raised its request for the document at the time the application, this might have affected AB’s consideration as to whether she would have pursued the application for suppression order at all. I reject this last submission. Contrary to what was submitted, this could and should have been the subject of some evidence from AB. It is not by any stretch obvious why AB would have taken this position: her concern was with what the publisher was likely to publish given what had happened in the past. Even though the aspect of her mental health reviewed by the psychologist was in evidence, her principal concern was to foreclose the possibility that the publisher might publish again articles identifying her by name. The publisher’s receipt of the psychologist’s report at the original hearing would not have struck me as being very likely to have altered that position. As it is, in the absence of evidence, this concern strikes me as theoretical.

4. As to (d), although there are references to the psychologist’s report already in the public domain, it should be open for the publisher to decide what use it might make of the report, as a whole, as part of its decision-making.

28. Subject to considering the wording of the exception to the existing suppression order, the Court accedes to the application for access. To the extent necessary, for the reasons identified, the publisher is also granted leave to access it under the Court rules.

Terms

29. The Court understands the sensitivity of the application to the offender, in view of what has gone before. But in my view, the offender’s concerns may be best addressed by crafting an exception in a way which makes it patently clear the limited basis upon which access may be granted, whilst substantially preserving the status quo.

30. Although he did not consider it necessary, Mr Sibtain did not resist the notion that access should be limited to the publisher’s legal representatives. In view of the publisher’s conduct, which led to the making of the suppression order in the first place, I consider his lack of resistance to be sensible. In view of the Harman undertaking, Mr Sibtain did not consider it necessary for further limitations to be imposed.

31. Ms Avenell submitted that it would be appropriate to redact the report, not only to “white out” AB’s real identity, but also other parts of the report which may not be relevant to any application by the publisher. I accept that, for abundant caution, AB’s real name should be redacted. I do not, however, accept the latter suggested limitation. This is so partly because access is being granted to officers of the Court, bound by the Harman undertaking. Further, I regard it as impractical and unnecessary to engage in a contentious exercise in sifting through portions of the report.

Orders

32. I will hear from the parties as to the form of order to give effect to these reasons, but I propose the following:

1. Subject to orders 2-4 (incl) below, order 2 made on 11 May 2021 is varied so as to permit the Registrar to grant access (including photocopying access) to the forensic psychologist report of Ms Brann, dated 18 February 2021:

1. to the legal representatives for the applicant, Nationwide News Ltd,

2. for the sole and limited purposes (and not otherwise) of:

1. the provision of legal advice and assistance in connection with its consideration of whether to apply for review, or to apply for leave to appeal against the orders made on 11 May 2021; and

2. prosecuting any such application for review or leave to appeal.

2. The version of the said report is to be redacted in a way so as to substitute the pseudonym ‘AB’ wherever reference is made to the respondent’s real name.

3. Order 1 above is subject to any further order as might be made by the Court on any application for review, or by the Court of Criminal Appeal, as part of any application for leave to appeal from the orders made on 11 May 2021.

4. Liberty to apply is granted on 3 days’ notice.

Postscript

Orders were made on 10 September 2021 as proposed. Counsel were given opportunity to consider them and, if thereafter variation was sought, either party had the capacity to invoke the grant of liberty to apply.

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Endnotes

Decision last updated: 14 September 2021