R v AB (No 1)

[2018] NSWCCA 113

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 stay order made on 6 June 2018. Whilst that stay remains, the existing suppression order continues to apply. In addition, some of the offences dealt with in the proceedings are subject to the publication restriction in the Children (Criminal Proceedings) Act, s 15A. See [47], [80] and [81] below.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

12 December 2017

Before:

North DCJ

File Number(s):

2015/281608

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent pleaded guilty to historical sex offences committed against two complainants. Some of those offences were committed during a period when the respondent was a child for the purposes of the Children (Criminal Proceedings) Act 1987 (NSW). Each complainant was under the age of 18 at the time of the offences.

Children (Criminal Proceedings) Act, s 15A prohibits publications which connect a person with criminal proceedings which relate to that person, if that person was a child when the relevant offence was committed. Publication made with the consent of a complainant who is aged above 14 at the time of publication is not prohibited. Each complainant gave such consent. However, the prohibition continues to operate in relation to the respondent.

The primary judge ordered the non-publication and suppression of the respondent’s name pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW), s 8, which provides that a Court may make such an order if it is necessary to prevent prejudice to the proper administration of justice, or to protect the safety of a person. The Crown appealed against that decision. The respondent did not oppose the granting of leave to appeal.

The respondent contended that such an order is necessary because there have been numerous inaccurate publications concerning his offending in breach of s 15A; and because there have been numerous threats to his safety, including the removal of a wheel hub from his vehicle.

Held (Meagher JA, Rothman and Garling JJ agreeing), granting leave to appeal and allowing the appeal:

i.    The Court of Criminal Appeal has jurisdiction to hear the appeal, as the court to which appeals lie against orders made in the criminal jurisdiction of the District Court: Suppression Orders Act, s 14. That section is not directed to whether a right of appeal in fact lies at the time when this Court considers whether it has jurisdiction: at [25]-[26] (Meagher JA), [50] (Rothman J), [81] (Garling J).

ii.    The suppression orders are not necessary to protect the proper administration of justice. If there has been publication in breach of (Criminal Proceedings) Act, s 15A, it is appropriate for proceedings to be brought under s 15A(7): [38]. Moreover, the evidence did not address whether any steps had been taken to bring the operation of s 15A to the attention of persons alleged to have broadcast in contravention of the prohibition: [40] (Meagher JA), [80] (Rothman J), [81] (Garling J).

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125, D1 v P1 [2012] NSWCA 314; Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386, considered.

iii.    The orders are not necessary to protect the safety of any person. The evidence does not identify a real risk of physical harm to the respondent or his family: at [42]-[43]. The statutory prohibition continues to prohibit publication of his name contrary to the Children (Criminal Proceedings) Act: [47] (Meagher JA), [51] (Rothman J), [81] (Garling J).

iv.    The term “necessary” in Suppression Orders Act, s 8 means “reasonably required or legally ancillary”, not “essential”: [73]—[80] (Rothman J).

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19, considered.

Judgment

1. MEAGHER JA: On 12 December 2017 the primary judge (North DCJ) ordered the non-publication and suppression of the respondent’s name pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Orders Act).

2. The Crown seeks to appeal (with leave) from orders 1 and 3, which were as follows:

1. [Order] for the non-publication and suppression of the name of the offender in these proceedings or any other party related to or otherwise associated with the offender or any information tending to reveal the identity of the offender made pursuant to s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW).

2.    [Order] refusing the offender’s [application] which sought non-publication and suppression of the name of the two complainants, namely [XX] and [XX].

3.    [Order that the respondent] not be related to or otherwise be associated with the pseudonym [XX].

3. Sections 7 and 8 of Suppression Orders Act are in the following terms:

7 Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:

(a)     information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b)     information that comprises evidence, or information about evidence, given in proceedings before the court.

8 Grounds for making an order

(1)    A court may make a suppression order or non-publication order on one or more of the following grounds:

(a)    the order is necessary to prevent prejudice to the proper administration of justice,

…

(c)    the order is necessary to protect the safety of any person,

(d)    the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e)    it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2)    A suppression order or non-publication order must specify the ground or grounds on which the order is made.

4. The primary judge’s ex tempore reasons with respect to the making of those orders were brief:

I thank the parties for their helpful submissions in this matter and from the discussion that we have had I have come to the conclusion that the notice of the motion should be dealt with by making an order for the non-publication and suppression of the name of the offender in these proceedings or any other party related to or otherwise associated with the offender or any information tending to reveal the identity of the offender made pursuant to s 8 of the Court Suppression and Non Publication Orders Act.

5. The Crown submits that the primary judge’s decision involved the following errors:

1. The order did not specify the ground or grounds on which the suppression and non-publication orders were made (cf Suppression Orders Act, s 8(2));

2. The orders did not specify the period for which they were to operate (cf s 12);

3. The orders did not specify the place or places in the Commonwealth where they were to apply (cf s 11);

4. No reasons were provided for the decision;

5. The orders made were not necessary for any of the purposes set out in s 8(1);

6. This appeal is by way of a rehearing at which fresh evidence or evidence in addition to or in substitution for that given below may be led: ss 14(4), (5): Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [11] (Gleeson CJ, Gaudron and Gummow JJ). It has been described as a hearing de novo: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [6] (Bathurst CJ) and [106] (Whealy JA); D1 v P1 [2012] NSWCA 314 at [43] (Bathurst CJ, McColl JA and McClellan CJ at CL agreeing); Hamzy v R [2013] NSWCCA 156 at [36] (Hoeben CJ at CL), [63] (Beech-Jones J). It is common ground that the dispositive question for this Court is whether it is satisfied that the orders made were “necessary” on any of the grounds in s 8(1). No fresh or further evidence was led on the appeal, which was heard four months after the suppression order was made.

7. The respondent challenges the Court of Criminal Appeal’s jurisdiction to determine the appeal under s 14. That question must be addressed first: Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Company Limited (1911) 12 CLR 398 at 415; [1911] HCA 31 (Griffith CJ). As to the substance of the appeal, it is said that the primary judge’s order was properly made on the grounds specified in s 8(1)(a) and (c).

8. The respondent pleaded guilty to eight historical child sex offences relating to [XX] and [XX]. In addition, with the respondent’s agreement, two further offences were taken into account when he was sentenced, one relating to each of those victims: Crimes (Sentencing Procedure) Act 1999 (NSW), s 32. Three of the eight offences charged and one of the two Form 1 offences were committed during a period which included a time when the respondent was under 18 and accordingly a child for the purposes of the Children (Criminal Proceedings) Act 1987 (NSW). The fact of those convictions (but not the respondent’s name) was widely published on 20 November 2017.

9. In reliance on s 8(1)(a), the order was said to be necessary to ensure compliance with Children (Criminal Proceedings) Act, s 15A, which relevantly provides:

15A Publishing and broadcasting of names prohibited

(1)     The name of a person must not be published or broadcast in a way that connects the person with criminal proceedings if:

(a)     the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed, or

(b)     the person appears as a witness in the proceedings and was a child when the offence to which the proceedings relate was committed (whether or not the person was a child when appearing as a witness), or

[…]

(5)   A reference in this Division to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

10. The evidence before the primary judge disclosed the making of various threats of harm, mostly via social media, and in one case by a telephone call to the respondent’s wife. It also established that someone had removed the nuts from a wheel rim on the respondent’s car, creating a dangerous situation when it was driven. Relying on s 8(1)(c), it was submitted that the risks represented by those threats and that act were said to make a suppression order necessary to protect the safety of the respondent and his family.

11. For the reasons which follow, I consider this Court has jurisdiction to hear the Crown’s appeal, and that leave to appeal should be granted, the appeal allowed and the relevant orders made by the primary judge set aside.

12. The challenges to this Court’s jurisdiction and the necessity for the making of suppression orders require that the factual and procedural background, and circumstances in which the respondent’s identity became known, be set out in some detail.

The course of the proceedings

13. The respondent was charged with offences under Crimes Act 1900 (NSW), ss 61D, 61E, 66C, 71, 72, 76 and 76A. Those provisions of Part 3 Div 10 have since been repealed and replaced.

14. When the criminal proceedings were first before the primary judge on 30 January 2017 (by that time they had been listed for trial on 27 February 2017), the following exchange occurred between the Crown and his Honour:

CROWN:    …If your Honour could make a non-publication order of any information which might identify any of the complainants and as I understand it that would include the name of the accused your Honour.

HIS HONOUR:    Alright so I make those orders that there be no publication in any way of the name of the accused or the name of any of the complainants in this matter.

15. On 4 April 2017, the respondent pleaded guilty in the [XX] District Court to eight charges. Counts 1, 2 and 3 involved the victim [XX], and counts 4, 5, 6, 8 and 10 the victim [XX]. The periods during which counts 4, 5, and 6 and one of the two Form 1 offences were alleged to have been committed in each case included a short time when the respondent was under 18.

16. The respondent was sentenced on 2 June 2017 to fixed terms of imprisonment of between 3 to 14 months for the eight offences. The respondent was 55 years old. The sentencing judge ordered, under Crimes (Sentencing Procedure) Act, s 12 that the execution of the whole of those sentences be suspended for the term of each sentence and that the respondent be released from custody on condition that he entered into a good behaviour bond for the term of the sentences.

17. Following the sentencing hearing, [XX] and [XX] notified the Crown that they wished to have the non-publication orders, as announced and extracted at [14] above, revoked. On 21 November 2017, the Crown filed a motion in the District Court seeking such an order under Suppression Orders Act, s 13. That application assumed that there was an existing “suppression order or non-publication order” which was capable of review under that section.

18. The respondent opposed that application. The affidavits in support (sworn by the respondent, his wife and his solicitor) described media reports and accounts in social media that were said to be significantly inaccurate as to the circumstances of the respondent’s offending. Some of the accounts in social media identified the respondent by name and by the posting of photographs. That publicity resulted in threats, as well as conduct by members of the local community which at least tended to isolate the respondent and his wife from that community, both socially and financially.

19. On 1 December 2017, following a hearing on 28 November, the primary judge dismissed the Crown’s application. His Honour held that there had been no order under the Suppression Orders Act made on 30 January 2017. It followed that there was nothing capable of being reviewed under s 13. His Honour dismissed the Crown’s motion with costs, and somewhat inconsistently, purported to stay the operation of the order that had not been made, seemingly for the purpose of preserving for the benefit of the respondent the “appearance” of such an order having been made on 30 January 2017 so as to allow him time to bring his own application under that Act.

20. On 8 December 2017, the respondent filed a motion for orders under the Suppression Orders Act, relying on the grounds in s 8(1)(a), (c) and (d). Order 1 as sought was for an order “for non-publication and suppression of the name of …, the defendant in these proceedings, or any party related to or otherwise associated to [him]”. Orders 2 and 3 sought the suppression of the names of the victims, each described as “a complainant in these proceedings” being the criminal proceedings in which the respondent was the convicted offender. In each of these orders the relevant “proceedings” are the criminal proceedings in which the respondent was the convicted offender.

21. A further affidavit of the respondent’s solicitor sworn 8 December 2017 was filed in support of that motion. That affidavit recited the history of the criminal proceedings and the absence of any media coverage until 20 November 2017, when an article appeared on the front page of the Daily Telegraph. Further articles then appeared in that newspaper on 21 and 22 November, and those articles attracted a “significant amount of discussion on the local [XX] radio and television”. Articles also appeared in the local newspaper from 21 November 2017.

22. In relation to the first article appearing in the Daily Telegraph, the respondent’s solicitor maintained:

The article misrepresented the factual circumstances of the case, the reasons given by North DCJ, and made no reference to the evidence of Ms Howell [a forensic psychologist with over 20 years’ experience specialising in the fields of sexual abuse and child protection who gave evidence that XX did not meet the criteria to be described as a serious sex offender, and did not have a risk in terms of reoffending]. Instead XX was presented, contrary to the uncontested evidence, of being a 55 year old paedophile. He was seen to be enjoying the protection of “court secrecy”. No mention was made of it being a criminal offence to reveal the identity of a juvenile offender.

23. As to the Daily Telegraph’s coverage generally, he contended:

… the overwhelming impression from the three days of articles published in the Daily Telegraph, by factual misrepresentations and blanket omissions of the actual evidence, was that [XX] had a 55-year-old child rapist paying hush money to victims while, released unsupervised, still putting hundreds of little girls at some local Church in danger, under veil of “court secrecy”.

Jurisdiction

24. On 12 December 2017 the primary judge made the orders in [2] above under Suppression Orders Act, s 7. The subject matter of the power conferred on the District Court by that section includes information tending to reveal the identity of, or otherwise concerning, any party to or witness “in proceedings before the court”. Such an order may be made “at any time during proceedings or after proceedings have concluded” (s 9(3)).

25. The proceedings in relation to which the power under s 7 was invoked involved the exercise of the District Court’s criminal jurisdiction conferred by Criminal Procedure Act 1986 (NSW), s 46. The relevant appellate court for an appeal under Suppression Orders Act, s 14 is that “to which appeals lie against final judgments or orders of the original court” (here the District Court in its criminal jurisdiction). That appellate court in relation to such proceedings is the Court of Criminal Appeal: Criminal Appeal Act 1912 (NSW), s 5(1). See also Fairfax Digital v Ibrahim at [17] (Basten JA).

26. The argument put against this Court having jurisdiction in the present case is that the inquiry called for by s 14(2) identifies the court to which appeals lie against final judgments or orders of the District Court in its criminal jurisdiction, but only if such an appeal in fact lies in the relevant proceedings and at the time of the proposed appeal under s 14. This construction is not consistent with the general language of s 14(2) which identifies the “appellate court” as “the court to which appeals lie against final judgments or orders” of the court making the suppression order. That language is not directed to whether at the time the question of appellate jurisdiction is addressed, any right of appeal, qualified or otherwise, in fact lies from the final judgment or order of that court in the proceedings in which that order was made.

Leave to appeal

27. The right of appeal conferred by s 14(1) is “with leave”. Leave to appeal was not opposed and should be granted. The primary judge did not specify the grounds on which the order was made, as required by s 8(2). Nor did the orders specify the period during which they were to operate. And no substantive reasons were provided for the decision. In addition, an important question raised by the respondent’s argument concerns the interaction of the self-executing provisions of Children (Criminal Proceedings) Act, Div 3A (see [9] above) and the exercise of the power to make a suppression or non-publication order.

Disposition of the appeal

The public interest in open justice

28. Suppression Orders Act, s 6 identifies as a primary objective of the administration of justice the safeguarding of the public interest in open justice. The principle of open justice is that court proceedings should be conducted in public. As French CJ observed in Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [20], that principle is a “means to an end”. It ensures that the proceedings are “fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected” (per Gibbs J in Russell v Russell (1976) 134 CLR 495 at 520; [1976] HCA 23). Gibbs J continued: “Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character.”

29. French CJ also observed in Hogan v Hinch at [22] that a “common law corollary of the open-court principle [is] that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings”. Two common law rules that illustrate the importance attached to the right to publish such a report of court proceedings are that its publication is not a contempt of court, even though it is likely to prejudice the fair trial of impending proceedings, and that such a report made in good faith is not an actionable defamation. Having so observed, McHugh JA concluded in John Fairfax & Sons v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 481 that the publication of fair and accurate reports is “vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice” and that in the absence of publication of reports on court proceedings there was a likelihood that they would become “the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making”.

30. In setting out the grounds upon which a Court may make a suppression or non-publication order, Suppression Orders Act, s 8(1) identifies in paragraphs (a) to (d) circumstances in which the public interest in securing or preventing particular outcomes will justify the making of such an order. Paragraph (e) makes express the weighing process implicit in the formulation of those earlier grounds. The public interest in open justice may be displaced if in the circumstances it is “necessary” to do so.

31. In this context, as Basten JA observed (Bathurst CJ and Whealy JA relevantly agreeing) in Fairfax Digital v Ibrahim at [46]:

The meaning of "necessary" depends on the context in which it is used. In s 8(1), it is used in relation to an order of the court, or, in practical terms, a proposed order, because it identifies a standard as to which the court must be satisfied before making an order. In each paragraph of that provision, the word "necessary" is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In paragraph (a), the purpose of the order will be "to prevent prejudice to the proper administration of justice". That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree: the proposed order may diminish a risk of prejudice or it may obviate the risk entirely. All of these variables may affect what is considered "necessary" in particular circumstances. (Emphasis added)

32. This last observation accords with the second of the constructions of s 8(1)(c) referred to by Bathurst CJ in D1 v P1 at [51].

The grounds relied on

33. Before the primary judge, the making of the orders sought was claimed to be “necessary” for the following reasons:

1. To ensure the respondent’s identity as a juvenile offender is not revealed further;

2. To ensure that the respondent’s identity “is not further associated with the wrongful narrative associated with these criminal proceedings”;

3. To enable the Court to provide an effective remedy in the event of contempt;

4. To protect the safety of the respondent and his family;

5. To avoid causing undue distress or embarrassment to the respondent and his family as parties to or witnesses in criminal proceedings of a sexual nature;

34. Outcomes (1), (2) and (3) were said to be necessary to prevent prejudice to the proper administration of justice, relying on s 8(1)(a). Outcome (4) was said to rely on s 8(1)(c) and outcome (5) on s 8(1)(d). The respondent’s submissions to this Court were limited to outcomes (1) and (4) in support of grounds (a) and (c) in s 8(1). It is convenient to address those grounds in this order.

Ground (a)

35. There are two relevant legislative provisions which govern the lawfulness of the publication of matters related to the offences committed by the respondent. They are Crimes Act, s 578A and Children (Criminal Proceedings) Act, s 15A. The former is directed to the publication of matter likely to lead to the identification of a complainant in “prescribed sexual offence” proceedings, such as those brought against the respondent. Like s 15A, s 578A applies according to its terms and without the making of any court order. Section 578A(4)(b) qualifies the application of that prohibition. Publication made with the consent of a complainant who is over the age of 14 years at the time of publication is not prohibited. That exception is satisfied in relation to each complainant in the criminal proceedings.

36. The respondent and each of the complainants are within one or more of the prohibitions in s 15A(1)(a), (c) and (d). However, s 15D(1)(b) provides an exception in respect of a publication made with the consent of the relevant person, who is of or above the age of 16 years at the time of publication. Again, it is common ground that exception is satisfied in relation to each complainant. In the result, s 15A(1) continues to prohibit the publication of the respondent’s name (or any information, picture or other material that identifies him or is likely to lead to his identification) in a way that connects him with the criminal proceedings relating to the offences charged by counts 4, 5, 6 and the Form 1 offence alleged to have been committed on [XX]. That is so notwithstanding those proceedings have concluded and that the respondent is no longer a child (s 15A(4)). A person who publishes or broadcasts contrary to that prohibition is guilty of an offence (s 15A(7)). That prohibition does not apply to the publication by this Court of its judgment (s 15B): Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386 at [28] (Spigelman CJ, Basten JA and Hislop J agreeing); Taylor v R [2015] NSWCCA 12 at [3] (Basten JA, Simpson and Davies JJ agreeing).

37. The respondent submits that the evidence shows s 15A has not been complied with and that it is necessary to “prevent prejudice to the proper administration of justice” that orders are made prohibiting the publication of information that connects the respondent with the proceedings before the primary judge or with those proceedings insofar as they included the four offences to which s 15A applies. In the respondent’s written submissions, it was said that the prohibition in that section had “failed”.

38. The short answer to this submission is that the making of an order in either form is not necessary to prevent prejudice to the proper administration of justice. The appropriate remedy for any contravention of the prohibition in s 15A(1) is for proceedings to be brought under s 15A(7) against a person who has published contrary to that prohibition. In that circumstance, as Spigelman CJ (Basten JA and Hislop J agreeing) observed in Application by John Fairfax Publications Pty Ltd re MSK at [29], the Act should be allowed to operate according to its terms and with the sanctions which Parliament has prescribed and the Court should not make orders which carry with them the prospect of contempt proceedings of a character parallel to any proceedings for a contravention of s 15A. Neither Plaintiff A v Bird; Plaintiff C v Bird [2015] NSWSC 570 (McCallum J) nor DM v Life Without Barriers [2016] NSWSC 1536 (Schmidt J) is authority for the contrary proposition. Each of those cases, in which a suppression order was made, was concerned with civil proceedings which did not attract the application of Crimes Act, s 578A(1) or Children (Criminal Proceedings) Act, s 15A. Accordingly, there was no prospect of prohibitions applying in parallel.

39. Even if it were appropriate for this Court to make suppression orders to the same effect as the prohibition in s 15A, the Court would have to be satisfied that it is “necessary” to do so to prevent prejudice to the administration of justice. The respondent’s argument is that the administration of justice is prejudiced by non-compliance with the Act and accordingly that it is necessary to make the order sought to secure that compliance. That argument would also require consideration as to whether the making of the order would achieve that outcome, and as to whether there were alternative steps available to do so.

40. The evidence did not address these questions. Specifically, it did not indicate whether any steps had been taken to bring to the attention of persons alleged to have published or broadcast in contravention of s 15A the facts relied on as engaging the application of that provision. In the absence of such evidence it would be open to this Court to conclude that, at least in relation to the traditional media, any past non-compliance with s 15A was inadvertent, and that once those facts were known to such persons, compliance would follow. Whilst a complaint about online publications involving alleged contraventions was made by the respondent’s solicitor to the police in late November 2017, the evidence is silent as to what steps if any were taken to bring that complaint to the attention of the publisher of Facebook or the individuals who posted the relevant content. Similar action may have led to the taking down of that content, or some of it.

41. It is not necessary to pursue these questions or to address the respondent’s argument in support of the making of a non-publication order extending to all of the respondent’s offences on the basis that such an order is “necessary” to prevent further contraventions of s 15A. In relation to the latter it was submitted that it was not possible in any publication concerning the non-15A offences to identify the respondent without also connecting him with the s 15A offences of which he was convicted in the same proceedings. That argument depends, at least in part, on the prohibition in s 15A being construed as applying to a publication that does not, on its face, disclose the connection between the person named or identified and any relevant criminal proceedings.

Ground (c)

42. The question raised by this ground is whether the making of an order prohibiting publication of information identifying the respondent as the offender in the criminal proceedings before North DCJ is “necessary” to protect his safety or that of his wife and their two young adult children. It directs attention to the likely position concerning the safety of those persons in the event that the existing order is revoked. Matters relevant to that inquiry include whether there would be a risk (continuing or arising) to the safety of those persons, and the likelihood and seriousness of its possible consequences. It also directs attention to whether the continuation of the suppression order would be likely to prevent or minimise any existing risk and to whether there are alternative actions that might be taken in response to that risk, which would otherwise achieve the same outcome.

43. The evidence shows that in the period commencing on 20 November 2017 there was widespread local media coverage, particularly on social media, which identified the respondent with the commission of the offences. That online social media coverage included expressions of outrage, in some cases accompanied by threats of violence, which for the most part were generalised and exaggerated. In the period before 30 November 2017, a veiled threat of harm to the respondent was made in a telephone call to the respondent’s wife. She was able to identify the caller and thus was in a position to report the incident to the police. The evidence does not indicate whether she did so. After 30 November and before 8 December 2017 there were further “threats” (unspecified in the evidence) left by telephone messages to the respondent’s home and an incident in which his daughter, having borrowed his motor vehicle, “experienced a rim of the vehicle to come off whilst driving as the nuts had been removed from same”. This event as described (the reference being to a “rim” and not to the wheel itself) does not seem to have involved any significant risk of harm to the driver of the vehicle.

44. Taking account of this last incident, there remains no evidence of any action clearly directed to causing real harm or injury to the respondent; or of any threats of harm made to the respondent’s wife or children. Nor is there evidence of any credible threat of harm made to the respondent in the period after 8 December 2017 and before the hearing in this Court in early April 2018, notwithstanding that the information as to the respondent’s identity has remained freely available on the internet during the whole of that period.

45. In these circumstances, I am not satisfied that there is a real risk of physical harm to the respondent or his family which presently exists and is being minimised or avoided by the existing suppression order. If that order is revoked, subject to the application of the prohibition in s 15A, it is to be expected there will be further coverage particularly in the traditional media – press, radio and television – which identifies the respondent with the commission of offences involving [XX] and [XX]. However, any such publication of that information, particularly to the respondent’s local community, is not likely to produce any different response from that which occurred in late November and early December 2017. Indeed, the earlier dissemination of that information makes it less likely that those who were prepared to respond by way of outrage or threat, particularly on social media, will do so again.

Conclusion

46. It follows in my view that non-publication and suppression order 1 made on 12 December 2017 was not “necessary” for either of the purposes in s 8(1) that are now pressed, and that it should be revoked. So too should order 3 (see [2] above) which was made in aid of order 1 where the respondent was originally identified by a pseudonym. However, to permit the publication of these reasons whilst at the same time protecting the respondent’s identity for the purposes of s 15A(1), I propose that he continue to be referred to in this judgment as AB. That is consistent with the practice referred to by Spigelman CJ in John Fairfax Publications re MSK at [28].

47. The consequence of the making of the orders which follow is that whilst there is no non-publication or suppression order of the respondent’s name made by a Court, the prohibition in Children (Criminal Proceedings) Act, s 15A continues to apply to the publication of his name (or of information that identifies him or is likely to lead to his identification) in a way that connects him with the criminal proceedings relating to the four offences described in [15] above.

48. Accordingly the following orders should be made:

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.

49. ROTHMAN J: I have had the advantage of reading, in draft, the reasons for judgment of Meagher JA and the orders proposed therein. I agree with the orders proposed and with the reasons expressed. I seek to make the following comments.

50. For the reasons given by Meagher JA, I agree that the jurisdiction for an appeal from a decision of this kind made in relation to criminal proceedings in the District Court is to the Court of Criminal Appeal. I fully agree with the reasons for judgment in respect of that matter.

51. Further, I agree that the provisions of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) apply, regardless of any orders made or not made by the court at first instance or by this Court on appeal.

52. The orders under appeal should not have been made. There was little or no evidence to warrant suppression and no consideration of the grounds in s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW). Apart from the jurisdictional issue raised, as to whether this Court or the Court of Appeal ought to determine the appeal, no other issue of principle needs to be decided.

53. In the course of his reasons for judgment, Meagher JA discusses the nature of an appeal of this kind and the meaning of the word “necessary” in the context of the governing Act. I would prefer to reserve any final view to a case where any distinction may be crucial, but state some preliminary views in relation to those issues.

49. In my preliminary view, the nature of an appeal of this kind is such that the appellant must show error, either as a result of the judgment below or because of evidence that is now to be considered.

50. It is necessary to recite the provisions of s 14 of the Court Suppression and Non-publication Orders Act, which are in the following terms:

“14    APPEALS

(1)    With leave of the appellate court, an appeal lies against:

(a)    a decision of a court (the ‘original court’) to make or not to make a suppression order or non-publication order, or

(b)    a decision by the original court on the review of, or a decision by the original court not to review, a suppression order or non-publication order made by the court.

(2)    The

‘appellate court’ for an appeal under this section is the court to which appeals lie against final judgments or orders of the original court or, if there is no such court, the Supreme Court.

(3)    Each of the following persons is entitled to appear and be heard on an appeal under this section:

(a)    the applicant for the suppression order or non-publication order,

(b)    a party to the proceedings in which the order or decision subject to appeal was made,

(c)    the Government (or an agency of the Government) of the Commonwealth or of a State or Territory,

(d)    a news media organisation,

(e)    any other person who, in the appellate court's opinion, has a sufficient interest in the decision that is the subject of appeal.

(4)    On an appeal under this section, the appellate court may confirm, vary or revoke the order or decision subject to the appeal and may make any order or decision under this Act that could have been made in the first instance.

(5)    An appeal under this section is to be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(6)    If judgments or orders of the original court are subject to review by another court (rather than appeal to another court), this section provides for a review of the original court's decisions instead of an appeal and in such a case references in this section to an appeal are to be read as references to a review.”

56. In the reasons for judgment of Meagher JA, his Honour refers to the plurality judgment in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 (“Coal & Allied”). In Coal & Allied, the High Court, like the Full Court of the Federal Court from which the appeal was taken, was dealing with an appeal from a single member of an administrative quasi-judicial body to a three-member bench of that same Tribunal.

57. The statement of the plurality in Coal & Allied, relying as it does on the comments in Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267; [1990] HCA 36 is, with respect, plainly correct. The nature of an appeal must ultimately depend on the terms of the statute conferring it.

58. As Sir Frederick Jordan CJ noted the term “appeal” is often used in two different ways: an appeal from one judicial tribunal to another; or from an executive authority to some other executive authority or court: Dash, Re Ex p. Australian Sporting Club (1947) 47 SR (NSW) 283.

59. In Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; [1931] HCA 34, the High Court was required to deal with convictions for breaches of regulations that, by virtue of the regulation being disallowed by one of the Houses of Parliament, were no longer in force. Nevertheless, the High Court held that the regulation operated at the time that the breach and conviction occurred and was valid.

60. In the course of the judgment, each of the members of the High Court discussed the nature of the appeal and whether, on appeal, the High Court was entitled to apply the law as it was at the time of the appeal. Dixon J (as his Honour then was) discussed the nature of appeals generally and traced the history of appeals using, as an example, amongst others, the rules of the English Court of Appeal.

61. It is sufficient to note that the High Court, in Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan, took the view that the appeal to it was an appeal in stricto sensu. It took that view, in part, on the basis of comments of Isaacs J (as he then was) in Werribee Shire Council v Kerr (1928) 42 CLR 1; [1928] HCA 41, which, essentially, expressed the view that no appeal from a State Court exercising State jurisdiction could be a re-hearing, because, if it were, the High Court would be exercising original jurisdiction as a State judicial power. Thus, the High Court has always refused to hear fresh evidence.

62. As is trite to state, an appeal is a statutory creation: see Bird v Free (1994) 126 ALR 475; Re Jarman; Ex parte Cook (No 1) (1997) 188 CLR 595; [1997] HCA 13. Historically, at common law, errors were corrected by writ of error or one or other of the prerogative writs, usually certiorari.

63. The difficulty with the construction of s 14 of the Court Suppression and Non-publication Orders Act is that it is framed in general terms to apply to a number of courts from which appeals run, in turn, to a number of other courts. In some instances, an appeal will run from a court exercising original jurisdiction to the same court exercising jurisdiction on appeal, such as from a single judge of the Supreme Court: see Bird v Free; Re Jarman; Ex parte Cook (No 1), supra.

64. The provisions of s 14(6) refer to a review, as opposed to an appeal, by another court. The primary example is a hearing de novo on appeal from the Local Court to the District Court. In those circumstances, there may be tension between the provisions of s 14(6) and s 14(5) of the Court Suppression and Non-publication Orders Act. It is unnecessary to resolve that tension, but the tension would disappear if all appeals under the Act were hearings de novo.

65. The High Court expressed the view in Coal & Allied that an appellate court that is capable of receiving further evidence and is not, in the exercise of its powers, restricted to making the decision that should have been made at first instance, is usually referred to as exercising an appeal by way of “re-hearing”. The plurality then said:

“Although further evidence may be admitted on appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.

Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was an error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error.” (Citations omitted and emphasis added.)

66. Section 14 of the Court Suppression and Non-publication Orders Act expressly provides that the appellate court may confirm, vary or revoke the order or decision subject to the appeal and may make an order or decision that “could have been made in the first instance”: s 14(4) of the Court Suppression and Non-publication Orders Act.

67. Thus, the hearing is not a hearing de novo but, as is expressed, a re-hearing, which, in my view, still requires a finding of error by the appellate court or requires fresh evidence, or evidence in addition to or in substitution for the evidence at first instance. In the absence of that additional or new evidence, error must be disclosed and the appellant must satisfy the court, on appeal, of that error.

68. On one view, at least, even in the case of fresh evidence, or evidence in addition to, or in substitution for, evidence at first instance, the additional material would have to be of a kind that would have, or may have, affected the exercise of the jurisdiction by the judge at first instance. In any other case, error would still need to be disclosed.

69. It is, in these proceedings, unnecessary to determine this issue finally. The view I take is a view inconsistent with that expressed by the Court of Appeal in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [6], per Bathurst CJ. But the nature of an appeal to the Court of Appeal may, itself, inform the nature of the appeal under the Court Suppression and Non-publication Orders Act.

70. The terms “re-hearing” and “hearing de novo” are so well understood as distinctive classes of appeal that, in my view, it is unlikely that the legislature, in utilising the term “re-hearing”, was intending to create a “hearing de novo”. Nevertheless, there may be a situation that arises, perhaps rarely, given the interlocutory nature of the jurisdiction, where that distinction may be determinative and it is in such a situation only that the issue requires determination on a final basis.

71. As earlier stated and as is made clear in the reasons for judgment of Meagher JA, particularly at [27], there are errors, even on the face of the record, such that the proceedings now before the Court do not depend upon the nature of the appeal and whether error must be disclosed.

72. The only other comment that I would make is to the meaning ascribed to the word “necessary”. Each of the bases for the issuing of a Suppression Order prescribed by s 8 of the Court Suppression and Non-publication Orders Act requires that the order be “necessary” to achieve one or other outcome. Again, this was the subject of comment in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim.

73. It is on one of those bases that the Court is able to issue an order under the Court Suppression and Non-publication Orders Act. As such, the word “necessary” is used in the context of a grant of jurisdiction or power to the Court, being the issuing of orders of an interlocutory nature.

74. Every term, when used in a statute, must be given a meaning that accords with the intention of the legislature, objectively construed. Generally, that construction will accord with the ordinary and grammatical meaning of the words utilised, but always in the context of the statute as a whole.

75. Nevertheless, where the term “necessary” is utilised in relation to the existence of powers of a court, it does not generally mean “essential”. By authority of long-standing, it will ordinarily be taken to identify “a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies”: Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 at [51]. As the plurality (Gaudron, Gummow and Callinan JJ) made clear in that case, the term “necessary” does not have the meaning “essential” but is to be “subjected to the touchstone of reasonableness”: ibid at [51] and the cases cited therein.

76. Again, it is unnecessary to determine this issue on a final basis. Further, the difference may be more academic than practical.

77. The overriding public interest is in “open justice” and any ground upon which an order is based must be balanced against that overriding public interest. Thus, if, for example, a non-disclosure order were reasonably required or legally ancillary to protect the safety of some person and formed a basis for the making of an order, when balanced against the primary objective of the administration of justice to safeguard the public interest in open justice, the Court may determine not to issue the non-disclosure order.

78. The wording of s 8 of the Court Suppression and Non-publication Orders Act, particularly s 8(1)(e) thereof, may create a tension between s 8 and s 6 of the Act, but also points to the term “necessary” not being utilised to mean essential.

79. The tension is superficial, because s 8(1)(e) requires the public interest otherwise, to be outweighed significantly by the primary objective. Further, if “necessary” meant “essential” then the public interest in s 8(1)(e) could never be outweighed by the primary objective.

80. In every respect, including the exercise of the discretion of the Court, if there be any, and the evaluation of the factors and purposes prescribed by s 8 of the Court Suppression and Non-publication Orders Act, I agree with the reasons for judgment of Meagher JA and I reiterate that I agree with the orders proposed.

81. GARLING J: I agree with the orders proposed by Meagher JA, and with his reasons. In particular, I endorse his comment that even though a Court has not issued any suppression or non-publication order, nevertheless the statutory prohibition against identification of AB, continues to operate to prevent any publication of AB’s name contrary to the statute.

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Amendment note: pseudonyms of the complainants, and a location name, redacted; citation corrected in paragraph [6].

Amendments

13 July 2018 - Publication restriction note amended.

08 April 2019 - Changed casename to reflect subsequent judgments.

Decision last updated: 08 April 2019