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R v AB (No 1)

R v AB (No 1)

Case [2018] NSWCCA 113 6 June 2018

Suppression and Non-publication Orders

Consent

Protection of Respondent and Family

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AB (No 1) [2018] NSWCCA 113
Hearing dates: 6 April 2018
Decision date: 06 June 2018
Before: Meagher JA at [1];
Rothman J at [49];
Garling J at [81]
Decision:
1. Grant leave to appeal.
2. Allow the appeal.
3. Set aside orders 1 and 3 of the District Court made on 12 December 2017.
4. Order that the respondent’s notice of motion filed 8 December 2017 be dismissed.

Catchwords: CRIME – suppression and non-publication orders – where respondent pleaded guilty to historical sex offences – where Children (Criminal Proceedings) Act 1987 (NSW), s 15A prohibits identification of respondent in connection with criminal proceedings involving certain offences – where complainants consent to the publication of their names for the purposes of that Act – whether order under Court Suppression and Non-publication Orders Act 2010 (NSW), s 8 necessary because s 15A prohibition apparently not complied with – whether order necessary to protect the safety of respondent or his family – order not necessary
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
D1 v P1 [2012] NSWCA 314
Dash, Re Ex p. Australian Sporting Club (1947) 47 SR (NSW) 283
DM v Life Without Barriers [2016] NSWSC 1536
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
Federated Engine-Drivers and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398; [1911] HCA 31
Hamzy v R [2013] NSWCCA 156
Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4
John Fairfax & Sons v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19
Plaintiff A v Bird; Plaintiff C v Bird [2015] NSWSC 570
Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267; [1990] HCA 36
Re Jarman; Ex parte Cook (No 1) (1997) 188 CLR 595; [1997] HCA 13
Russell v Russell (1976) 134 CLR 495; [1976] HCA 23
Bird v Free (1994) 126 ALR 475
Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; [1931] HCA 34
Werribee Shire Council v Kerr (1928) 42 CLR 1; [1928] HCA 41
Category: Principal judgment
Parties: Crown (Applicant)
AB (Respondent)
Representation:
Counsel:

B Baker (Crown)
D Dalton SC (Respondent)

Solicitors:
C Hyland (Solicitor for Public Prosecutions) (Crown)
B Dunstan (Respondent)

File Number(s): 2015/281608
Publication restriction: The orders of the Court described above are the subject of a…

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 (No 1)

Details

AGLC: R v AB (No 1) [2018] NSWCCA 113
Case: [2018] NSWCCA 113
Decision Date: 06 June 2018

CaseChat Overview and Summary

The appellant sought an order for the suppression and non-publication of the identity of the respondent in connection with historical sex offences for which the respondent had pleaded guilty. The court was asked to consider whether an order under the Court Suppression and Non-publication Orders Act 2010 (NSW) was necessary, given that the Children (Criminal Proceedings) Act 1987 (NSW) section 15A prohibited the identification of the respondent in relation to certain offences. This prohibition did not apply where the complainants consented to the publication of their names for the purposes of that Act, which they had done.

The court considered whether an order was necessary to protect the safety of the respondent or his family. It found that the respondents were not at risk of violence or intimidation, and that there was no evidence to suggest that the publication of the respondents' names would have any adverse impact on them or their family. The court concluded that the order was not necessary to protect the safety of the respondents or their family.

The court dismissed the application for the suppression and non-publication order, holding that it was not necessary in the circumstances. The court further found that the prohibition in the Children (Criminal Proceedings) Act 1987 (NSW) section 15A had been complied with, given that the complainants had consented to the publication of their names. The court emphasised the importance of the principle of open justice, and the need to balance this with the protection of the privacy and safety of individuals involved in criminal proceedings.

Orders