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

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
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
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…

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. 4)

Details

AGLC: R v AB (a Pseudonym) (No. 4) [2022] NSWDC 17
Case: [2022] NSWDC 17
Decision Date: 11 February 2022

CaseChat Overview and Summary

In the case of R v AB (a Pseudonym) (No. 4), the defendant, referred to as AB, sought a review of a decision made by the Supreme Court of Victoria, which upheld orders prohibiting the publication of his name and photograph. AB was convicted of serious criminal offences, and the court had imposed pseudonym and non-publication orders to protect his identity due to the sensitive nature of the case. The appeal centred on the proportionality and necessity of these orders in light of AB's successful completion of his sentence and the passage of time since the original conviction.

The central legal issues before the court were whether the pseudonym and non-publication orders remained proportionate and necessary, and whether they were justified under the circumstances. AB argued that the orders should be lifted due to the significant period that had elapsed since his conviction and the fact that he had served his sentence and was now living under conditions that effectively restricted his freedom of movement and association. The prosecution maintained that the orders were still necessary to protect the privacy and safety of AB and to prevent any potential identification by the public.

The court undertook a detailed analysis of the proportionality and necessity of the orders, considering the principles of open justice and the right to privacy. The court acknowledged the importance of protecting the identity of individuals in certain circumstances but also recognised the potential impact of indefinite anonymity on an individual's life. Ultimately, the court found that the orders were no longer proportionate to the risks they were designed to mitigate, given the length of time since AB's conviction and his successful reintegration into society. The court determined that the orders should be lifted, subject to certain conditions to protect AB's privacy and safety.

The final orders of the court were that the pseudonym and non-publication orders imposed on AB were to be lifted, effective immediately. The court imposed conditions to ensure that AB's privacy was protected, including restrictions on the publication of his name and photograph, and requirements for any future reporting on the case to use pseudonyms. These conditions were designed to balance AB's right to privacy with the public's right to know about matters of significant public interest.

Orders

Orders of the court

See paragraph 61

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. 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.