R v AB (a Pseudonym) (No. 4)

[2022] NSWDC 17

District Court

New South Wales

Medium Neutral Citation:

R v AB (A Pseudonym) (No. 4) [2022] NSWDC 17

Hearing dates:

11 February 2022

Date of orders:

11 February 2022

Decision date:

11 February 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 61

Catchwords:

Criminal procedure - pseudonym and non-publication orders - application for review

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW) ss 8, 13

Crimes Act 1900 (NSW) s 97

Cases Cited:

Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339

D1 v P1 [2012] NSWCA 314

JB v R [2019] NSWCCA 48

R v AB (A pseudonym) [2021] NSWDC 173

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

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

Telstra Corporation Ltd v NBN Co Ltd [2014] NSWSC 940

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Nationwide News Pty Ltd (Applicant)
AB (Offender)

Representation:

Counsel:
Mr D Sibtain for the Applicant
Ms M Avenell SC for the Offender

Solicitors:
Ashurst for the Applicant
Legal Aid NSW for the Offender

File Number(s):

2020/00086187

Publication restriction:

Non Publication Order with respect to the name of the complainant or any information that may identify AB.

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. On 11 May 2021, I made pseudonym and non-publication orders (the ‘orders’) prior to hearing a sentencing proceeding in the District Court at Gosford. Both orders related to the identity of the offender (‘AB’) in the sentencing proceeding^[1] . The orders were made on AB’s application after publication of newspaper articles relating to the sentencing proceeding, over the opposition of Nationwide News Pty Ltd (the ‘publisher’). Order 3 made on 11 May 2021 identified that the ground for the pseudonym and non-publication orders was that the orders were “necessary to protect the safety of any person”, under s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the ‘Act’).

   1. R v AB (A pseudonym) [2021] NSWDC 173

2. Sentencing remarks were published on Caselaw on 13 May 2021^[2] . Reference was made in those remarks, amongst other things, to AB’s diagnoses of PTSD, bi-polar disorder and ADHD and consideration was given in those remarks to the connection between those mental health disorders and the offending. AB was sentenced to a term of imprisonment of 2 years, to be served by intensive correction.

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

3. On 10 September 2021, the orders were varied, on the publisher’s application, so as to permit it confined access to a (redacted version of) report prepared by a forensic psychologist, Ms Sarah Brann (dated 18 February 2021), which had been referred to in the reasons for decision for the orders^[3] . This application for variation followed the publisher’s complaint that it had not had prior access to Ms Brann’s report and therefore could not make submissions regarding the content of that report prior to the orders being made.

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

4. By a notice of motion filed on 13 December 2021, the publisher now applies for review and seeks the revocation of the orders made on 11 May 2021. AB opposes the application.

5. As was position at the time AB applied for the orders, the Crown did not wish to be heard on this review application.

PRINCIPLES

6. The publisher invokes ss 13(1), (2) and (3) of the Act in support of its application. In paraphrase: s 13(1) identifies the entitlement in the Court (which granted the original order(s)) to review orders made under the Act; s 13(2)(d) confers standing, relevantly, upon the publisher to bring the application for review and s 13(3) indicates the scope of the Court’s powers on review; namely, that the Court “may confirm, vary or revoke the order and may in addition make any other order that the court may make under the Act”.

7. The Act does not set out criteria for review, but both parties accepted that the Court’s task amounts to a reconsideration of the ground(s) referred to in s 8 of the Act, as it or they apply to the circumstances pertaining when the application for review is made and as at the hearing of that application. Thus a party is entitled to furnish further evidence on an application for review^[4] . This is a corollary of the fact that orders under the Act are specified for a finite period of time and that circumstances may arise subsequent to the making of orders that did not exist at the time the orders were made, such that the persons who have standing under s 13(2) may be inclined to seek that review ^[5] . As was effectively explained in D1 v P1 [2012] NSWCA 314 at [44], a party dissatisfied with an order may be practically constrained in obtaining leave to appeal from such orders if it has not put forward fresh or different evidence in an application for review before the Court which made the order when it is able to do so.

   4. JB v R [2019] NSWCCA 48 per Bathurst CJ (Hoeben CJ at CL and Simpson AJA agreeing) at [31]

   5. Telstra Corporation Ltd v NBN Co Ltd [2014] NSWSC 940 at [99]

8. This reconsideration may work to the benefit of either party bound by the order; and not only a person subjected to and dissatisfied with the grant of the order. Thus, although the orders were grounded in s 8(1)(c), theoretically, it would have been open to AB to argue that some alternative or additional ground has emerged since the making of the orders that had not been identified on the date the earlier orders were made; and/or prove the more recent position regarding the mental health of the person for whose benefit an order under the Act has been made. In opposition to this application, AB partly seeks to rely upon information about events occurring in AB’s life after they were made.

9. Both parties also accepted that it is unnecessary, on review, to ascertain any error in the reasons for the orders when they were made.

10. In the context of a review application, I apply the approach sanctioned in the Court of Criminal Appeal in deciding whether the continuation of the orders would be likely to prevent or minimise any existing risk underlying the making of the orders and whether there are alternative actions that might be taken in response to that risk, which would otherwise achieve the same outcome^[6] .

    6. R v AB (No.1) [2018] NSWCCA 113 per Meagher JA at [42], applied in AB (a pseudonym) v R (No.3) [2019] NSWCCA 46 at [111] (“AB (No.3)”

11. The principles by which orders of the present kind are made under s 8(1) generally, and s 8(1)(c) in particular, were recently referred to in the Court of Appeal in Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 (‘EFA’) at [217]-[233]. The Court emphasised that:

• an applicant to an order must establish the ‘necessity’ for making it under the grounds enumerated in s 8;

• once ‘necessity’ has been established, there is no further discretionary basis for refusing an order;

• an assessment of ‘necessity’ must be made with due regard to the primary objective of the open administration of justice;

• ‘Necessity’, for the purposes of the ground of review in s 8(1)(c) may be justified on a finding that there is a likelihood of harm to a person’s mental health, having regard to:

○   the nature, imminence and degree of harm likely to occur to the relevant person; which is

○   to be balanced against the principle of open justice and, more specifically, the degree to which an order that restricts identification of a person would encroach upon that principle

• it is relevant for the purposes of assessing s 8(1)(c) for the Court to consider any earlier reporting and commentary and, specifically, any inaccuracies, misleading or unfairness in earlier reporting.

12. It has been acknowledged that the ground in s 8(1)(c) encompasses a person’s psychological safety, including aggravation of a person’s pre-existing mental condition ^[7] .

    7. AB (No.3) at [59]

13. As it did at the time of the application for the orders, the publisher emphasised in this review application, more than once, that the applicant’s identity had previously been published, hence the ‘horse had bolted’. But it is well-established that the fact that past orders may be, or may have been, ineffective altogether in stopping scandalising behaviour is no reason in itself not for making them^[8] . Thus, on the facts in EFA, a decision referred to by the publisher in its submissions, the Court of Appeal acceded to an application for orders under the Act notwithstanding the circumstance concerning the applicant’s belief that his identity (as the perpetrator of conduct that had occurred in public) was “well-known in legal circles” and that he apprehended that publication of his identity would inevitably result in further professional humiliation. At [230], the Court of Appeal found that a consequence of not making the orders would be that further reporting (with the risk of misreporting) and identification of the applicant’s name would cause damage to his already fragile mental health.

    8. Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340 per Basten JA (Meagher JA agreeing) at [25]

REASONS FOR THE ORDERS MADE ON 11 MAY 2021

14. The publisher adduced evidence, on this application, of the evidentiary material founding the orders made on 11 May 2021, including Ms Brann’s report, the transcript of the hearing of the application and the reasons for the orders made on 11 May 2021 themselves.

15. This is not an appeal from the orders made on 11 May 2021. It is unnecessary to summarise all of the evidence and arguments preceding the making of those orders. The reasons for judgment on 11 May 2021 speak for themselves, but in order to understand the present application, some reference should be made to those reasons. What follows is not to be taken in substitution for anything said in that earlier judgment.

16. The sentencing proceeding concerned the offence of robbery in company, contrary to s 97 of the Crimes Act 1900 (NSW). I noted that the offender had entered a plea of guilty to the offence following agreement with the Crown on a large quantity of facts. On the same day, articles were written about the proceeding in the Daily Telegraph and Central Coast Local News, both being published by the publisher. I observed that the articles depicted AB as a femme fatale who had lured a male victim, who was also an amputee (in respect to one of his legs), to a motel for an arranged sexual encounter in a beachside motel, but prior to that occurring, AB persuaded him to join AB for a walk along the beach where the male victim was assaulted and robbed; offences that had occurred with AB’s involvement. I determined that the newspaper articles were ‘unbalanced’ in certain respects. I further found that this unbalanced commentary had a causal connection with social media posts which were adverse to AB. Further still, I observed that the publisher disclaimed any responsibility for those social media posts and expressed my concern that the publisher did not accept the inaccuracies in what the articles depicted.

17. I found that AB had made out the ground under s 8(1)(c); but refrained from determining the applicability of an alternative ground under s 8(1)(e) of the Act. I determined that publication of AB’s identity would risk further psychological harm to AB and that this was sufficient to form a view that the order was necessary to protect AB’s safety. (It was unnecessary to determine AB’s submission that there may be a threat to AB’s physical safety arising from vigilante misreporting). This was in a context where there was evidence to indicate that AB had pre-existing mental disorders (manifested by earlier attempts on her life) and, further, there was evidence from a forensic psychologist, Ms Brann, opining that media reporting and social media commentary (which featured ‘much derogatory and offensive comment’ about AB) had adversely impacted upon AB’s mental health (see, for example, paragraph 42, restated in paragraph 60 of Ms Brann’s report). Fairly read, Ms Brann’s various diagnoses of AB’s mental disorders were partly based upon information she received from AB during the course of the clinical interview (as well as independent testing) (paragraph 52) in which AB had reported AB’s views about a decline in AB’s mental health attributable to ‘media attention’.

DEVELOPMENTS SUBSEQUENT TO THE MAKING OF THE ORDERS

The publisher’s evidence

18. On the application, the publisher relies on the affidavit of Nicholas James Perkins (sworn 13 December 2021). Exhibited to that affidavit were printouts of internet coverage, comprising newspaper articles (including articles from the Daily Telegraph and The Daily Mail (Australian ed), and social media (primarily Facebook) posts published between 23 November 2021 and 24 November 2021.

19. Two of the newspaper articles which Mr Perkins printed off and exhibited to his affidavit on 23 November 2021 comprised a reproduction of articles that had been published in the Daily Telegraph on 3 November 2020 and 4 December 2020. Another printed off on 23 November 2021 was a newspaper article published by the Daily Mail (Australian version) originally published on 3 December 2020. There were patent similarities in the content of these articles.

20. The social media commentary uplifted on 24 November 2021 was responsive to the newspaper articles published in either or both in November and December 2020. It is unnecessary to recite the detail of them. For the most part, they contain vile and derogatory comments about AB, assorted opinions about what AB “deserved” although in some cases, some tasteless jokes were also made about the victim’s disability. It is fair to record that in one or two cases, some of the social media commentary drew to attention matters adverse to the victim, rather than AB, which were amplified in the sentencing proceeding; but that was only a very small proportion of the generally damning content about AB.

21. The general effect of this evidence was that the articles and consequential social media commentary, identifying AB, in late 2020 were still accessible even with the orders being in place.

AB’s evidence

22. AB affirmed an affidavit dated 1 February 2022. In it, AB referred to an employment prospect which was not pursued due to a prospective employer raising concern about a media report about AB which had remained online. AB indicated that the newspaper articles and social media reports about AB were still on line.

23. AB opined that AB’s mental health had improved since the orders were made. AB had regained weight. AB was looking forward to starting work with a vet clinic and AB’s children returning to AB after prior supervision. But AB deposed to feeling worried about a deterioration in AB’s mental health if AB’s name was “dragged through the mud again”. Specifically, AB was also worried about AB’s ‘stability’ in caring for children if, because of AB being identified by name in further media reports, AB’s mental health breaks down again.

THE PARTIES’ ARGUMENTS

The publisher’s submissions

24. The publisher submits that applying the ‘calculus of risk’ approach recently indicated by the Court of Appeal, AB had not established that the orders were necessary to protect AB’s safety. AB did not adduce evidence from Ms Brann to indicate that it was necessary for the orders to continue to remain in place to prevent the possibilities of AB self-harming or suffering a significant decline in AB’s mental health and the lay evidence did not lead to a different conclusion.

25. The publisher submitted that there was not, before the orders were made, and there is not now, any threat to AB’s physical safety emerging from the social media commentary.

26. As to AB’s mental state, although Ms Brann’s report identified mental disorders in AB, she had not identified any real or imminent threat posed to AB’s mental health if non-publication or pseudonym orders were not made, or directly expressed any opinion, to the effect that AB’s mental disorders might be aggravated by further reporting identifying AB. In contrast to the circumstances that occurred in EFA, where there was medical evidence of a moderate risk of suicide if the affected person was identified by name, there has been no further report from Ms Brann or any other mental health professional about the effect on AB’s mental health should AB now be identified.

27. The lay evidence recently adduced for AB was insufficient to make up for that deficiency in expert opinion. To the contrary, AB’s evidence indicated that certain occasions had arisen since the orders were made in which AB’s name had come up in connection with employment opportunities. AB did not complain that when it did so, it aggravated mental harm. AB adopted the solution of ‘moving on’ from the particular event.

28. Counsel for the publisher, Mr Sibtain, argued that it cannot be sufficient to make out the exceptional order that an offender, through media identification, is made to feel worse. It would be expected that a great many offenders who come to a sentencing court may have some underlying mental disorder. AB’s case was not shown to be exceptional. Protective orders of the kind made should not be made too liberally.

29. Nor, Mr Sibtain argued, should orders of this kind be made to punish a publisher for past mistakes or errors in media reporting.

30. In response to a query I raised as to the extent of the encroachment of the orders upon open justice, Mr Sibtain argued that it was very broad. Counsel argued in particular, that there were real limits, for example, in reporting the sentencing outcome without infringing the extant orders. More fundamentally, however, Counsel argued that it is an important part of media reporting that an offender is identified.

AB’s submissions

31. AB submitted that the ground in s 8(1)(c) remained established (although AB did not press for any other ground in s 8(1) to sustain the orders).

32. Through the written submissions of AB’s Senior Counsel, AB argued that:

1. when the Court made the orders it took into account, but rejected the publisher’s futility argument. The content of the more recent articles (since the orders were made) appended to Mr Perkins’ recent affidavit was much the same; and afforded no basis for review;

2. the absence of any evidence of physical threat of violence to AB (and thus to AB’s safety) since the orders were made indicates that the orders are serving their purpose;

3. when it made the orders, the Court was justified in concluding that further press reporting, in a way that identified AB, would fuel social media and adversely affect AB’s mental health;

4. it is unnecessary, to sustain the orders, for AB to obtain expert opinion to specifically address the effect of any unrestrained publishing (ie identifying AB) on AB’s mental health;

5. the positive developments in AB’s life since the orders were made provide an indication that the orders are doing their job.

33. Ms Avenell SC, who appeared for AB, verbally argued that there had been no change in the circumstances since the orders were made, which warranted them being altered.

34. Ms Avenell SC submitted that the orders, when they were made, were justified; and the Court was justified in concluding that there had been inaccuracies and unfairness in the media reporting and a connection between that reporting and the social media commentary that had followed.

35. She disputed that the publisher was incapacitated from informing the public about the sentencing outcome. The sentencing remarks had been published on Caselaw. It set out details, amongst other things, of the nature and circumstances of the offending, the Court’s assessment of the gravity of the offending, and its assessment of aggravating and mitigating circumstances. AB was not a person of ‘public interest’. She submitted that the publisher’s desire to identify AB bordered on the salacious.

36. Ms Avenell SC submitted that the Court would not be influenced by any implicit floodgates argument that the making of these orders in the circumstances of AB would invite further applications by offenders, faced with sentencing proceedings, who have mental conditions.

33. Ms Avenell SC also addressed Mr Sibtain’s point about AB’s evidence indicating that the risk to safety had abated. The Court, she argued, would infer that releasing the present constraint now would likely revive the concerns that inspired the orders being made at a time when according to the evidence, AB was getting AB’s life back together.

34. In his reply, Mr Sibtain submitted that if there was any risk to safety it had gone away.

CONSIDERATION

39. As I recognised when orders were made, the making of those orders was an exceptional course, made only in recognition of a primary objective of the administration of justice being to safeguard the public interest in open justice.

40. Offenders who plead guilty to offences which may be regarded by the publishers as ‘newsworthy’ are not entitled, as of right, to have shielded from public view reporting of the offending conduct they have, by their plea, admitted to. It is not a function of the Court ordinarily to protect offenders who plead guilty from negative publicity. As the Court of Appeal said in AB ((No.3) at [101], the media, when it reports proceedings fairly and accurately, may be described as the “eyes and ears of the public”. This is part of the price that we pay for living in a (generally) free society. Additionally, the Court is not readily in a position to protect offenders from social media ‘pile-ons’ which accompany negative media reporting, whether that be accurate or otherwise.

41. However, the Act makes exceptions (to some degree reflective of long-standing practices) and the orders now under review indicated the Court’s view that one exceptional circumstance had been established in this case. The relevant exception was the protection of a person’s safety and, as indicated in the reasons for the orders made, that concept embraced protection of a person against the risk of mental harm generally, or, as in this case, the aggravation of a person’s mental condition. Contrary to the impression received from AB’s submissions, the Court did not make the orders on the basis of an actual or perceived threat to AB’s physical safety.

42. As was alluded to in the reasons for the orders, the necessity for them arose, rather from mental harm proven to have been occasioned to AB, and the apprehension (unless restrained) of further mental harm to AB, arising from unbalanced media reporting identifying AB by name which, in turn, provoked social media commentary. It is important to emphasise however, that what was prohibited was not further media reporting of the sentencing hearing itself, but the disclosure of information which would identify AB.

43. I do not accept the publisher’s argument that a hypothetical fair reporting of the sentencing outcome (there being no evidence of actual reporting of it) would be impossible without identifying AB. The sentencing remarks purported to do just that; and it was not suggested that they infringed the orders that were made. Nor do I accept that the important function of media reporting, being the eyes and ears for the public, is, or would be, materially impaired by the continuation of the orders. It may be accepted that in any reporting of a sentencing outcome that the media may report on why the Court found that this person received a sentence. I do not, however, see why it could not be done without contravening the orders. There was no evidence to the effect that it could not. The encroachment on the principle of open justice was, in short, limited.

44. I do not consider it to be a precondition to the making of the orders that a qualified mental health or other health professional must expressly opine upon the likely exacerbation or deterioration in the person’s health if such orders were not made. I do not read the Court of Appeal’s decisions in EFA or AB(No.3) as practically mandating the admission of professional opinion before a Court could conclude that the ground in s 8(1)(c) of the Act, to the extent that the ‘safety’ of the applicant concerns the applicant’s mental health, is made out. It may be that the expression of such opinion, in such clear terms, may strengthen an applicant’s case. It depends on the facts. The issue for a Judge, as a trier of fact, weighing the evidence as a whole, including potentially expert and lay evidence, applied in the light of common sense and the Judge’s life experience, may support the predictive conclusion required to be made in s 8(1)(c).

45. As indicated, there was evidence of a temporal connection between the media reporting in late 2020 at or about the time that AB entered a guilty plea and a deterioration of AB’s mental health. The psychologist referred to three distinct, albeit perhaps related, pre-existing mental disorders. Although it is true that Ms Brann’s report was focussed on issues more pertinent to sentencing, and, as the publisher emphasised, did not squarely direct herself to the question engaged by a consideration of s 8(1)(c), that is not to say that inferences favourable to AB relevant to the application did not arise from her report. Ms Brann was partly influenced to her opinion about the diagnoses by what AB told her about AB’S own views of AB’s mental health and the connection with the adverse media publicity and social media commentary. Ms Brann linked the multiple mental disorders to a “reduced capacity for decision making, exercising sound judgment, and ability to control AB’s emotional and behavioural reactions.” (paragraph 57). It was unnecessary for the Court to require expert opinion to predict a connection between a person with those mental issues and the risk of exacerbation of mental harm flowing from anticipated unbalanced media reporting identifying the person followed by social media trolling.

46. There was other evidence from AB which, though not supplemented by expert opinion, indicated that AB was getting on well with AB’s life since the orders were made. I infer that, with the orders in place, AB’s mental health conditions were and are being successfully managed. I agree with AB’s submissions that the recent lay evidence indicate that the orders are achieving their purpose. AB is currently serving a term of imprisonment, under the community supervision (through an Intensive Correction Order). A condition of the ICO was a rehabilitation condition. Any material exacerbation of AB’s mental disorders may set back AB’s path to rehabilitation.

47. I do not agree with the publisher’s submission that AB’s evidence itself indicates that there is no further utility (if there ever was utility) in the orders. The suggestion that AB had been capable of ‘moving on’ when AB’s name had been identified, with a prospective employer, friends or partners does not lessen the necessity. AB’s ‘moving on’ should be construed as an avoidance measure, precisely to prevent exacerbation to mental health that would flow from a continued association, to take the example used, of being employed by someone aware of AB’s earlier offence; and the turmoil and mental difficulties that a continued association might bring about.

48. The publisher’s submissions do not address this lay evidence, from AB, other than to essentially sweep it away as insufficient. It is overly simplistic to deride such evidence in the manner that the publisher seeks to do in this case. To the extent that some implied criticism is made of Ms Brann for reaching conclusions or diagnoses on the adoption of AB’s reporting to her, it is pertinent to note, further, that both at hearing of AB’s application and in this application, AB was not required to attend for cross-examination. The force of the publisher’s apparent criticism of Ms Brann’s adoption of AB’s evidence in Ms Brann’s report is diminished as a result of that omission.

49. To repeat, I do not now accept, any differently to what I found on 11 May 2021, that the circumstance that the applicant’s identity was identified in the news or social media in November 2021 represents a bar to the continuation of the 11 May 2021 orders on the basis of futility. My view has, in this regard, been fortified by the result in the EFA decision earlier alluded to; which illustrates that a submission that the ‘horse has already bolted’ does not provide a conclusive, let alone persuasive, reason for rejecting the application for a pseudonym order where it is apparent that further or additional disclosure of a person’s identity may cause harm to their safety.

50. I do not accept that AB’s position and circumstances has, or has, not been sufficiently distinguished from the run of the mill case of ‘troubled’ offenders, with pre-existing mental health conditions, apprehending adverse media reporting or that to sustain the orders could give a green light to other offenders similarly seeking the Court’s protection. Whether or not this can be characterised as a ‘floodgates’ argument does not matter. I am concerned with AB’s position and circumstances. The publisher’s argument overlooks that amongst the general pool of ‘troubled’ offenders, not all of them are likely to have been subject to the type of media reporting and social media commentary that AB was subjected to.

51. Implicit in the application, of course, is that the publisher wishes to be released from the constraint of the current orders to identify AB by AB’s name. Although it was unnecessary for the publisher to point to error when the orders were made, it is significant that the publisher did not challenge the findings made in my reasons for the orders regarding the unbalanced nature of the earlier reporting of the sentencing proceeding in the articles it published. Its counsel avoided the issue simply by arguing that the making of mistakes or errors in the press does not mean that a publisher should be punished for it. In my view, however, the publisher’s refusal to accept that the reporting that occurred in November 2020, ahead of the hearing of the sentencing proceeding, was unbalanced and, more importantly, refusal to accept responsibility for contributing to the social media commentary indicates to me that there is a continuing risk of mis-reporting, or inaccurate or unfair reporting associated with the disclosure of AB’s identity. It is not a matter of the Court wanting to indicate its disapproval or to punish the publisher, or censor or edit further reporting. It is consideration of the effect of the release of the publisher from the restraint now imposed on it.

52. There is a real risk that disclosure of AB’s identity through the revocation of the orders now would aggravate AB’s mental health conditions. Under the applicable legal approach, it is unnecessary for AB to prove the actual probability that AB will in fact sustain an aggravation of mental disorders, and therefore adversely affect AB’s safety, should the publisher be permitted to identify AB.

53. Especially in view of AB’s diagnosis of bi-polar disorder, but including also reference to other mental disorders, in my opinion, the degree of harm flowing from revelation of AB’s identity is likely to be significant. To reiterate, I do not consider that the Court needs expert medical opinion to proceed on the basis that bi-polar disorder is characterised by profound depression; or that misreporting of the kind exhibited in the reporting that occurred in late 2020 would aggravate that condition and possibly AB’s other disorders as well. It is unnecessary to quantify the precise extent of the aggravation; nor predict the tangible result of such aggravation, including whether it be suicidal ideation or even an attempt at self-harm.

54. The risk is imminent: I infer that if the orders were revoked, the publisher would proceed to publish in a way that would promptly identify AB. It is difficult to ascertain any other purpose for the application for review.

55. I accept that AB’s evidence has disclosed improvement in AB’s life circumstances since the date when orders were made, albeit that AB remains the subject of very onerous conditions as part of the order that AB serve the sentence of imprisonment through communal supervision. But with proliferation of the mental disorders, that could easily reverse. In predicting future hypothetical possibilities, I consider that I can take into account the content of the past newspaper reporting (about which no regret was expressed by the publisher) and the past social media commentary to provide a gauge of what might occur if AB’s identity was outed through the revocation of the orders. In my view, the risk of exacerbation of mental harm is no less material should the order for revocation be made than it was when the orders were made, even if it is difficult to quantify what that might be.

56. Applying the ‘calculus of risk’ approach results in the ground to s 8(1)(c) being established.

57. In my opinion, and in summary, the combination of AB’s three pre-existing mental disorders, expert evidence about how those disorders affect AB’s life (their effects on AB’s mental functioning), the circumstance that the earlier reporting of AB’s conduct and identification of AB affecting AB’s mental health to such degree that AB had expressed suicidal feelings, the tangible improvement in AB’s mental health condition with the aid of the orders (suggesting their efficacy), the risk of further unbalanced reporting of the offending conduct (this time with the disclosure of AB’s name), the likelihood that this will generate comparable social media reaction to what AB has previously endured, directed at AB, and the real and substantial risk to AB’s mental health means that that the orders made remain necessary for AB’s safety.

58. In so concluding, I acknowledge, as I did in reasons for the orders, the public interest in the open administration of justice. The limitation upon disclosure of AB’s identity patently did not prevent the publisher from generally reporting on the content of the offending conduct, either then or now. Then, as now, the encroachment on the principle of open justice is minimal.

59. The publisher did not suggest any other alternative action to address the risk that would flow from revocation of the orders which might have achieved the same outcome as the making of the orders and their retention. The publisher presented an all or nothing argument.

60. When the opportunity was supplied to the publisher’s counsel to nominate any variation to the orders, assuming his primary argument for revocation was rejected, Counsel for the publisher submitted that the orders should be varied in a way which would effectively result in their expiring today, with the Court’s decision. My earlier reasons indicate why that argument is rejected. I agree with AB’s submission that the existing length of the orders remains appropriate.

61. The publisher’s application is refused. The orders made by the Court on 11 May 2021, as varied on 10 September 2021, are confirmed.

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Endnotes

Decision last updated: 16 February 2022