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R v BB (No 6)

R v BB (No 6)

Case [2021] NSWSC 1518 24 November 2021

Public Interest Immunity

Open Justice

Jurisdiction

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v BB (No 6) [2021] NSWSC 1518
Hearing dates: 24 November 2021
Date of orders: 24 November 2021
Decision date: 24 November 2021
Jurisdiction: Common Law
Before: Rothman J
Decision:
1. Under s 7(1) of the Court Suppression and NPO Act 2010, the names of either the offender in these proceedings or his partner not be published nor anything that would identify either of them;
2. Further that there not be published one or other of the connections of either of the foregoing with or the identity of the company [REDACTED]; and
3. There not be publication of any information disclosing the possession by either person of documents or information that was seized or used by law enforcement agencies in the investigation or prosecution of either of them.

Catchwords:
COURTS and JUDGES – Application for broad suppression/non publication order – risk to safety of families of offender and spouse overseas – risk unacceptable – principle of open justice primary consideration – non-publication order issued restricted to certain information and home and identity of offender and spouse.

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW)

Cases Cited:
D1 v P1 [2012] NSWCA 314
John Fairfax v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324
John Fairfax & Sons v The Police Tribunal (1986) 5 NSWLR 465
Pelechowski v Registrar of the Court of Appeal (New South Wales) (1999) 198 CLR 435

Category: Procedural rulings
Parties: Regina (Crown)
BB (a pseudonym)
Representation:
Counsel:
M McHugh SC/ A McGrath (Crown/Respondent)
S Pararajasingham (Offender/ Applicant)
Solicitors:
Director of Prosecutions (Cth) (Crown/ Respondent)
Musgrave Legal (Offender/ Applicant)

File Number(s): 2016/321930
Publication restriction: Suppression orders made under s 7(1) of the Court Suppression and NPO Act 2010 (NSW)

EX TEMPORE Judgment

HIS HONOUR: Ordinarily I would reserve reasons in relation to an application for a suppression or non-publication order. The matter concerns an application by Motion in the proceedings for a suppression or non-publication order and relates to evidence before the Court of a fear on the part of the offender and his partner of reprisals against either of them and more obviously their family that still resides in Iran. An interim suppression order issued on Monday, 22 November 2021, relating to the whole of the matter. That was done on the basis that the Court did not want to render nugatory that which is now before the Court.
The issue that needs to be determined is the issue of whether, pursuant to the terms of s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (hereinafter "the Act"), the Court should prevent or prohibit the publication of certain information.
The application as it was framed was in relatively broad terms. During the course of the discussion between counsel on both sides and the Court that seems to have been narrowed to issues associated with the names and identity of the offender in this case…

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 BB (No 6)

Details

AGLC: R v BB (No 6) [2021] NSWSC 1518
Case: [2021] NSWSC 1518
Decision Date: 24 November 2021

CaseChat Overview and Summary

In the case of R v BB (No 6), the respondents sought a broad suppression and non-publication order to protect the safety of the offender's family and spouse who resided overseas. The application was made in the context of a criminal proceeding before the Supreme Court of Victoria. The primary concern was the potential for harm to the families if the details of the case were published, including the identity and location of the offender and his spouse.

The court had to determine whether the principle of open justice could be sufficiently balanced with the need to protect the safety of the offender's family members. The open justice principle is a fundamental aspect of the Australian legal system, promoting transparency and public confidence in the judicial process. However, the court recognised the serious risks to the safety of the offender's family if their identities and locations were disclosed.

After careful consideration of the submissions and the evidence presented, the court concluded that while the principle of open justice was paramount, there were specific details that, if published, could pose a significant risk to the safety of the offender's family. Consequently, the court issued a non-publication order that restricted the publication of certain information, including the home address and identity of the offender and his spouse. This balanced the need for transparency with the imperative to protect vulnerable individuals from potential harm.

Orders