R v Tretheway

Case •

[2025] NSWDC 322

•

14 August 2025

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Tretheway [2025] NSWDC 322
Hearing dates: 18 July 2025, 30 July 2025
Date of orders: 14 August 2025
Decision date: 14 August 2025
Jurisdiction:Criminal
Before: Bennett ADCJ
Decision:

Application for suppression and non-publication order refused Subject to suppression of Some Evidence.

Catchwords:

CRIMINAL LAW – Possess child abuse material - Application to supress offender’s identity - Self-harm – reputational damage to extended family – Interim suppression and non-publication orders made by Local Court - Conviction appeal incompetent – Court having no jurisdiction – Severity appeal within Court’s jurisdiction.

Legislation Cited:

Crimes Act 1900

Crimes (Appeal and Review) Act 2001

Mental Health and Cognitive Impairment Forensic Provisions Act

The Court Suppression and Non-publication Orders Act

Cases Cited:

AB (A Pseudonym) v R (No 3) 2019 NSWLR 1046, [2019] NSWCCA 46

Dacich v DPP (No 2) [2020] NSWCA 298

Nationwide News Pty Limited v Qaumi [2016] NSWCCA 97.

Category:Principal judgment
Parties: Reginald Tretheway – Applicant
The Crown – Respondent
Representation:

Applicant:
Michael Vassili Barristers and Solicitors Pty Ltd:

Respondent:
Director of Public Prosecutions
File Number(s): 2024/176836
Publication restriction: Specified in the Orders. See para [41]

JUDGMENT

  1. Reginald Tretheway was convicted in the Local Court, Glen Innes on 15 October 2024 of two offences of Possess Child Abuse Material contrary to s 91H(2) Crimes Act 1900. The offences were on 14 December 2023.

  2. Upon conviction he was sentenced to an aggregate term of imprisonment of 15 months from 15 October 2024 until 14 January 2026, with a non-parole period of seven months expiring on 14 May 2025. Indicated sentences for the individual offences were nine months and twelve months respectively.

  3. Proceedings in the District Court began as an appeal from the convictions, however because of the failure of the appellant to pursue this in a timely fashion the periods in which to do so expired and consequently this court was without jurisdiction to entertain them, though there it had jurisdiction to determine the appeals from the severity of the sentence.

The Incompetent Appeal from Conviction

  1. The appellant was convicted on 15 October 2024 and thereupon lodged a notice of appeal against the convictions.

  2. On 30 July 2024, an application for the appellant to be dealt with in accordance with s 14, Mental Health and Cognitive Impairment Forensic Provisions Act 2020 was refused and he pleaded guilty. The proceedings were adjourned to 15 October 2024 for sentence which was imposed as set out above.

  3. On 3 February 2025 the appeals were before the District Court, Armidale and by consent were adjourned to 12 May 2025 to allow consideration of whether leave was needed to appeal, and whether the appeals or applications for leave to appeal were competent. It was agreed by the solicitor appearing for the appellant that the court had no jurisdiction for the appeals to this court under the Crimes (Appeal and Review) Act 2001.

  4. In Dacich v DPP (No 2) [2020] NSWCA 298 Basten JA, with whom Meagher J and Simpson AJA agreed considered the relevant provisions in the Crimes (Appeal and Review) Act 2001 discussed at para [39] et seq and [45] et seq. The decision advances the propositions that:

  1. Where a notice of an intention to appeal was not in the form of an application for leave to appeal and stated no grounds for the application it was apt to be struck out.

  2. Time could not be extended beyond three months during which an application for leave might be pursued.

  3. A notice of appeal is defective and invalid as an application for leave to appeal against conviction entered after pleas of guilty and could not be treated as an application for leave to appeal against conviction.

  4. A notice of appeal against conviction is not a “defective” application for leave to appeal, and to so describe it ignored the context and purpose of the requirements for a leave application considering the nature of the proceedings in the Local Court and the jurisdiction of the District Court when hearing and determining appeals from conviction.

  5. Upon a plea of guilty in the Local Court, there was no trial and no evidence taken with respect to the elements of the offending.

  6. The circumstances in which a person convicted on a plea of guilty can withdraw the plea and insist on a trial in the District Court are limited.

The Sentence Appeal

  1. The Crown correctly conceded that the appeal from the sentence is within the court’s jurisdiction since the appeal notice was filed within 28 days of the imposition of sentence in the Local Court. This I heard and determined on the 30 May 2025. I dismissed the appeal and implemented the sentence imposed by the magistrate. The appellant had been released to bail pending the appeal determination. The aggregate sentence to which he is subject is of 15 months from 30 May 2025 to expire on 29 August 2026 with a non-parole period of seven months to expire on 29 December 2025.

The Non-Publication of the Appellant’s Name in the Local Court

  1. The appellant’s identity was protected from publication by orders in the Local Court until the determination of the application pursuant to s 14, Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and thereafter upon notice of the appeals until their determination.

  2. Exhibit A tendered by the Crown in the appeals includes the following documents with handwritten notes:

  1. CAN Master Coversheet with entries on 28.5.24, 11.6.24, and 9.7.24 endorsed across the document with: “Interim Suppression and Non Publication order made” and in the column for 9.7.24 “Pros to reply to suppression (indecipherable) by 9/7/24”.

  2. Notice of Appeal to the District Court bearing 15/10/2024.

  3. CAN Master Coversheet with entry for 15.10.24 “Interim Suppression Order continues pending D/Ct appeal”.

  1. Transcript of the proceedings in the Local Court, to review those portions concerned with non-publication and suppression of the appellant’s identity included:

  1. On 28 May 2024 the proceedings were adjourned to 11 June 2024 when two applications were agitated, one upon s 14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and the second for suppression and non-publication of the appellant’s identity. The court had insufficient time to consider the material offered in support of the applications, and the magistrate adjourned the proceedings to 9 July 2024 with comments regarding the relevance of the medical evidence to both applications. Without reaching a decision upon the second application the magistrate ordered that the appellant’s anonymity be maintained until the determination of the applications. The transcript attributes to the magistrate:

“Bail to continue. I make an interim suppression and non-publication order until 9 July.”

  1. The proceedings were adjourned to 9 July 2024 and resumed before another magistrate. The appellant’s solicitor noted the applications before the court and acknowledged that the application for non-publication and suppression was not in writing. The prosecutor noted that they had no opportunity to respond in these circumstances. The magistrate announced his intention to adjourn to the 13 August 2024 for the prosecutor to reply to the application for non-publication and suppression for which the prosecutor sought two weeks, and that they did not anticipate this would be in issue, subject to confirmation with the prosecutor formerly with carriage of the matter. The magistrate is attributed with the following in the transcript:

“HIS HONOUR: Section 14, suppression application, reply to suppression application by 19 July 2024. Section 14 and suppression application will be dealt with on 23 July.”

  1. After further discussion the order was revised, and the proceedings adjourned to 30 July 2024 at Armidale. The matter resumed on that day before the same magistrate when the appellant’s solicitor announced that he had:

“… a suppression application in the matter of Trethewey.”

  1. The prosecutor responded to his Honour’s question whether he had a chance to reply to the suppression application:

“PROSECUTOR: No, your Honour, and the reason I haven’t is because once the material is reviewed it’s not opposed.”

  1. His Honour sought the appellant’s pleas, whereupon his solicitor announced that material was prepared in support of the application for orders pursuant to s 14, Mental Health and Cognitive Impairment Forensic Provisions Act 2020. Exchanges between his Honour and the appellant’s solicitor followed during which the prosecutor conceded that he had not seen the material. The solicitor was to be sent from the court room to collate the material in default of which the appellant would be required to enter pleas., but before this occurred his Honour said,

“I have made the suppression and non-publication order, it is not contested.”

  1. The solicitor was granted five minutes to collate the material whilst the proceedings stood in the list. Upon resumption the solicitor produced the material, and his Honour confirmed that the prosecutor had the opportunity, brief though it was, to view it. The parties handed up their bundles and submissions followed, the prosecutor arguing against the application for diversion upon the second limb for which the legislation provided because the proposed treatment plan was vague and did not meet requirements necessary for the orders sought, and considering the seriousness of the offences it was in the public interest that the matters be dealt with according to the law. The prosecutor conceded that mental health treatment could be included in orders made according to law.

  2. The appellant’s solicitor noted that the suppression application was granted, in response to which his Honour said:

“… The suppression application speaks for itself, Mr Lambley. The law is very clear, thank you. Proceed.”

  1. His Honour did not accept submissions in support of the application pursuant to s 14, Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and concluded:

“… In my view this is a very serious matter, it should be dealt with in accordance with the law. Confos’ case is clearly relevant to this. I have no doubt that Reginald Trethewey, and his name is not to be repeated outside this room, I have made the appropriate orders, will go to gaol or at least be considered for a lengthy gaol term for these offences. Far too serious to be dealt with by way of a diversion.

The treatment plan doesn’t meet the requirements that are required by the Supreme Court, too vague and inchoate. Dealt with in accordance with the law. That’s my ruling. What’s his plea?”

  1. Thereupon pleas of guilty were entered and the proceedings took their course to the imposition of the term of imprisonment when the matter was next before the court. For reasons provided in my earlier consideration of this matter the appeal from the convictions were incompetent and the pursuit of relief in the District Court was confined to whether the sentence as excessive.

  2. An application for the proceedings to be moved to the Local Court, Blacktown to be concluded there was refused. His Honour commented:

“… Yes, so I am totally opposed to it. Justice is to be done in local communities. The communities are entitled to see justice done. Whilst there is a suppression and non-publication order made in regard to this matter things can be said about it without identifying the accused. It will be dealt with here and as far as I am concerned, where are these offences committed? It will be dealt with at Glen Innes.”

  1. The proceedings were adjourned to Glen Innes on Tuesday 15 October 2024; his Honour continued bail and ordered a sentence assessment report. His Honour added:

“I have made the suppression and non-publication order which was not contested.”

  1. On 15 October 2024 the proceedings continued before another magistrate for the determination of sentence. The appellant relied upon psychological evidence, his advanced years, his attempt at self-castration, and lack of antecedent offences, to support the imposition of a non-custodial sentence with recommendations for treatment. Her Honour was not persuaded to take that course and imposed the sentence of imprisonment.

  2. Her Honour was thereafter available to consider an application for bail if an appeal was intended, which the solicitor said was the case. Her Honour also raised the suppression order, and during discussions said,

“If I grant appeal bail then the suppression order interim basis can continue until that appeal is determined. Any objection sergeant? Nothing is before me yet, that’s just my thoughts.”

  1. The prosecutor waited for the decision upon whether to appeal and to make enquiries about “the suppression order” issue before committing to a position, in response to which her Honour said.

“… I note that the reason for the suppression order previously was while the s 14 was being determined.”

  1. When the proceedings resumed after a short adjournment the prosecutor sought confirmation that the suppression order was made on an interim basis, to which her Honour said,

“….. It’s an interim suppression order, it’s got to be determined. But the suppression order was made, I looked at the file which hasn’t gotten to the registry still, on the basis that the s 14 hasn’t been - one of the appeals is an all grounds appeal in respect of s 14.”

  1. Discussion continued upon the steps to be taken in the District Court; her Honour said that the interim order can continue and granted bail pending the determination of the appeal. She understood that the appeal would include the failed application pursuant to s 14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 in respect of which she made comment after reading the material tendered for the sentence proceedings that there might be some prospects for success. As I previously decided, this was not enlivened in the appeal process because the appeal from this order was incompetent as no application for leave to appeal was lodged within the limitation period.

  2. Her Honour’s suppression order was delivered thus:

“Suppression order, interim suppression order to continue pending District Court determination or while District Court to appeal.”

Discussion

  1. The circumstances revealed in this material raise first the question whether there was a decision to proscribe publication of and suppress the appellant’s identity reached upon proper consideration of the bases upon which such an order could have been made. To summarise:

  1. The first magistrate ordered non-publication of the appellant’s identity pending determination of the application pursuant to s 14, Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

  2. Entries on the CAN Master Coversheet made on 28.5.24, 11.6.24, and 9.7.24 included endorsements “Interim Suppression and Non-Publication order made” and (in the column for 9.7.24) “Pros to reply to suppression (indecipherable) by 9/7/24”.

  3. The Notice of Appeal to the District Court bears the date 15/10/2024, and on the CAN Master Coversheet for 15.10.24 there is recorded: “Interim Suppression Order continues pending D/Ct appeal”.

  4. On 28 May 2024, before a second magistrate, non-publication and suppression of the offender’s identity were sought but not adequately argued and not concluded. The magistrate adjourned the proceedings to 9 July 2024 and ordered that the appellant’s anonymity be maintained until then.

  5. On 9 July 2024 before a third magistrate the prosecutor had no opportunity to respond to the unwritten application. The magistrate adjourned to the 13 August 2024 for the prosecutor’s reply to the application for suppression, for which the prosecutor sought two weeks and said that they did not anticipate this would be an issue, subject to confirmation with the prosecutor formerly with carriage of the matter. The magistrate is attributed with:

“… Section 14, suppression application, reply to suppression application by 19 July 2024. Section 14 and suppression application will be dealt with on 23 July.”

  1. The order was revised adjournment to 30 July 2024 at Armidale. On that day before the third magistrate the appellant’s solicitor announced:

“… , I have a suppression application in the matter of Trethewey.”

  1. The prosecutor had not replied to the appellant’s material because once reviewed the application would not be opposed. The appellant’s solicitor announced that material was prepared for the application pursuant to s 14, Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The prosecutor conceded that he had not seen that material; the solicitor was sent from the court to collate the material in default of which the appellant would be required to enter pleas. Before this occurred, his Honour said:

“I have made the suppression and non-publication order; it is not contested.”

  1. Upon resumption the parties provided their material and submissions upon the application for diversion; his Honour refused the application. The appellant’s solicitor noted that the suppression application was granted, in response to which his Honour said:

“… The suppression application speaks for itself, Mr Lambley. The law is very clear, thank you. Proceed.”

  1. The appellant pleaded guilty; the proceedings were adjourned to Glen Innes on 15 October 2024; his Honour continued bail, ordered a sentence assessment report, and added:

“I have made the suppression and non-publication order; which was not contested.”

On 15 October 2024 a fourth magistrate determined sentence. Her Honour raised the prospect of bail pending appeals to the District Court including from the refusal of the application for diversion. Her Honour raised the suppression order, and said:

“--if I grant appeal bail then the suppression order interim basis can continue until that appeal is determined. Any objection sergeant? Nothing is before me yet, that’s just my thoughts.

… I note that the reason for the suppression order previously was while the s 14 was being determined.”

  1. Her Honour confirmed the interim suppression order, yet to be determined, was on the basis that one of the appeals was in respect of the failed application pursuant to s 14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 upon which she commented after reading the material in the sentence proceedings that there might be prospects for success.

  2. Her Honour’s noted that the interim suppression order was to continue pending the District Court determination.

  1. There was but one occasion when the order for suppression was expressed other than as an interim order, when the third magistrate in the sequence of appearances said on 30 May 2024:

“I have made the suppression and non-publication order; it is not contested.”

  1. On its face this is consistent with a final order made proscribing publication of the appellant’s identity. However, this should not be read in isolation but within the context of the entire proceedings and the terms used in the orders made before and subsequently. Each of the orders were, upon their face, in terms of interim orders the last of which expired upon my determination of the appeals.

  2. The Court Suppression and Non-publication Orders Act 2010 provides in s 10 power to make interim orders for suppression or non-publication. Unfortunately, nowhere in the material before this court is there reference to the power pursuant to which these various orders were made, although by implication they were pursuant to this Act, albeit without specifying the provisions relevant to the question before the court.

  3. Moreover, though the material tendered was common to both applications, there was no analysis of the material for its relevance to whether orders for non-publication and suppression should be made. I accept that the material was read by the magistrates before whom it was presented and applied to the decisions for the interim orders.

  1. The purposes of the interim orders are not precisely stated, but may be inferred from the context in which they were made that they were to protect the appellant’s position whilst the decision upon the application pursuant to s 14, Mental Health and Cognitive Impairment Forensic Provisions Act 2020 was pending, and thereafter until the determination of the appeals to the District Court including the pursuit of relief from the rejection of the application in the Local Court, which as noted was incompetent because too much time has passed.

  2. When the appeals were determined on 30 May 2025 and thereafter the parties were permitted time to consider the status of the orders for non-publication and suppression.

  3. The Court Suppression and Non-publication Orders Act 2010 provides (my emphasis):

10 Interim orders.

(1) If an application is made to a court for a suppression order or non-publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined.

(2) If an order is made as an interim order, the court must determine the application as a matter of urgency.

  1. S 12 provides,

(1) A suppression order or non-publication order operates for the period decided by the court and specified in the order.

(2) In deciding the period for which an order is to operate, the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

(3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

  1. The orders for non-publication and suppression of the appellant’s identity ere interim orders and continued beyond the conclusion of the Local court proceedings until determination of the appeals which were indicated before the fourth magistrate to deal with this matter. Upon the conclusion of the proceedings in this court when I decided the appeals, which included the incompetent application for leave to appeal from conviction, there were no proscriptions against publication of the appellant’s identity. This notwithstanding the interim order remained in place until the parties had the opportunity to argue for and against further orders for the suppression and non-publication of the applicant’s identity.

Suppression of the Offenders Identity in the District Court.

  1. The material tendered by the applicant comprises:

  1. A report from Dr Tanveer Ahmed, Consultant Psychiatrist of 25 June 2025 prepared upon an interview conducted over telehealth that day from Tamworth Correctional Centre, correspondence from Michael Vassili Solicitors including a letter of instruction, extensive background and a previous report of 13 October 2025, and Justice Health Records dated 3 June 2025. Dr Ahmed wrote:

  1. The applicant is 78 years old, has been in custody for four weeks, having been found guilty of possessing child abuse material, and serving imprisonment of 15 months with a seven-month non-parole period. He was in a strictly monitored section for those with a higher mental health risk with extra cameras and staff.

  2. This was from him attempting to choke himself with a plastic bag self- two weeks ago. He did not cite any immediate stressor other than feeling he could not cope with imprisonment.

  3. Since a consultation midway last year, was in the community up until recently when found guilty. He withdrew from activities like attending church or distributing Bibles. His main family contact was his brother, overseas at the time of the interview. He was especially worried that any identification of his name would hurt his brother and his brother’s children and grandchildren. He said this would be a cause of great disappointment for him.

  4. Since the last appointment, he was steadily treated on the antidepressant sertraline. He was unable to confirm the dose, but it was one tablet which is either 50 mg or 100 mg. It helped calm him a little. When asked what he thought of (an incident known to the Court), he said he looked back and thought it was extreme and felt a little bit silly about it. He noted that he had longer-term damage from that, requiring (treatment known to the Court) caused wider physical health problems such as bone weakness.

  5. He had no access to psychological support within the facility. He was suffering from macular degeneration and required regular injections, but no arrangements were made for this. This threatened his day-today function and he would also lose his driving licence if this were not kept up to date.

  6. He had difficulty staying asleep. He worried about the future. He denied nightmares or flashbacks. He said the food was relatively average, but fine for him. He eats adequately. He was largely in isolation. He went for two hours during the daytime and two hours in the evening with the wider range of residents. He had been called a ‘cockroach’ by one. He was unsure if they knew of his charges. He was abused by a correctional officer. He did not disclose the details, but the abuse made him feel that the correctional officer knew of his charges. He denied physical assaults during his time there. There were few activities, a small library, but no books that he thought would interest him.

  7. According to past reports (with regard to an incident known to the Court) midway last year once the charges came about. He had a single psychology consultation in his early life in his 20s. He consistently had self-harm thoughts throughout partially improved by the addition of an antidepressant.

  8. For his Mental State Examination, he was seen through telehealth. The camera was not working in the Correctional Centre, and they ultimately communicated through audio alone. He was known to the doctor, was friendly and polite, was able to give a reasonable history, and spoke of his despair at his current situation and his fear of release of his name into the public domain.

  9. He expressed a feeling of shame from hurting the few people in his life for whom he genuinely cared, his brother and extended family of nephews, grand-nephews and nieces. He said, “It’s just about beat me”. He struggled to keep going and retain hope and spoke of active thoughts of self-harm but was unsure of current plans or methods. He was not otherwise thought disordered; cognitions were intact. He gave a coherent history and understood the nature of his stay and his charges.

  10. The doctor did not comment on the nature of any sexual disorder. In his past report, he commented on the various risks that he may have a paedophilic disorder or the rarer sexual disorder of vorarephilia, now largely academic as he has been found guilty of possessing child abuse material.

  11. He satisfies the criteria for a Major Depressive Disorder, with sleep disruption, he is less able to enjoy the taste of food, he has pervasively low mood, is in a state of despair, made self-harm attempts two weeks ago, and is now in a more secure, monitored section of the facility. His state is precarious, partially treated, given antidepressant, not receiving other psychological support.

  12. He reports he is not receiving appropriate medical support for his macular degeneration. Worsening vision would further worsen his current psychological function.

  13. He would be at greater risk if the suppression order was lifted upon his reckoning for it would destroy his major relationships with his brother and his brother's extended family, would cause great shame for him and them, and would heighten his distress and he would become even more determined to potentially self-harm. The major risks that heighten his level include the past (incident known to the Court). He has multiple risk factors, including marked isolation, worsening physical health, and vulnerability in the correctional setting, abuse by correctional officers and other inmates, feels under threat and is in a special section of the facility. If his relationships are devastated, hope for the future would be further damaged and heighten the risk as he would see little purpose to stay alive.

  14. There is an extremely high risk of suicide or self-harm attempts if the suppression order was lifted.

  1. The applicant’s brother provided a letter representing the following:

  1. Their family name is unique and would be easily recognised leading to identification of the family, their business, and community connections.

  2. The town in which he resides is small and anonymity is impossible.

  3. He built his business over two decades and now operates it the benefit of his family and employees.

  4. Identification of the family name with the family business will likely lead to closure within months, based upon comments generated by “rumours” that clients would discontinue their support, resulting ultimately in bankruptcy, loss of homes, staff unemployment, loss of superannuation, and effects upon local suppliers and contactors.

  5. Deleterious effects upon his children and grandchildren and other family members innocent of wrongdoing.

  1. A letter of 15 April 2025 from a registered nurse from New England Northwest Metal Health Services. The applicant self-referred to this service after (the incident known to the Court) and attended fortnightly, and on alternate weeks attend by telehealth the Treatment & Rehabilitation Clinic operated by Justice Health.

  1. Added to this material and considered in the determination of this application is that tendered in mitigation of the penalty imposed by the magistrate including the initial report from Dr Ahmed written on 24 May 2024 in which he opined:

“Mr Tretheway suffers from a serious mental condition.

It is a rare one called Vorarephilia. It is a sexual disorder. It is known as the erotic desire to be eaten by someone. In his case it also involves animals. He said this has grown stronger in the past decade, but he has always had it but largely suppressed it throughout his life. He says the downloaded images are linked to this urge. He said he has never actually carried it out and the desire to actually carry out is low. It is more the imagining of it. This is consistent with the limited research on this topic. Note this topic has received popular appeal, especially in 2001 when a German, Armin Meiwes posted an advertisement that he wanted to be eaten.

The causes are unknown. I have not elicited evidence of any trauma or abuse in Mr Tretheway’s case. I also have not elicited evidence of broader sexual disorders. However, the opinion is based largely from his self-report. I cannot rule out the possibility of paedophilia entirely given the images on the computer, as related in the police facts sheet, are sexualised and at least some are of children. However, his account of what is an otherwise rare and embarrassing disorder of vorarephilia is convincing. The possibility of him being a paedophile is however low.

Mr Tretheway also satisfies the criteria for a major depression. While him feeling distressed in the context of his situation is appropriate since the charges, there is a preceding history of self-harm thoughts, greater rumination about his fetish and some disruption in sleep and appetite.”

  1. The applicant’s submissions include arguments upon the jurisdiction of this court to deal with orders for suppression made in the Local Court, including that the District Court lacks jurisdiction to modify, vary or revoke the Local Court suppression order because this appellate jurisdiction is limited by statute to conviction and sentence appeals only, whereas suppression orders are separate ancillary matters governed by distinct legislation, the suppression order was not part of the appeal, and to deal with the suppression order made in the Local Court would constitute jurisdictional error. There is no need to embark upon analysis of these submissions since the interim order in the Local Court expired without any further application in that jurisdiction for it to be final.

  2. I agree with the submission that the jurisdiction of this court may be exercised upon the application of the Court Suppression and Non-publication Orders Act 2010 to the appeal proceedings.

  3. The applicant submits that orders for suppression and non-publication of his name pursuant to s 8(1) Court Suppression and Non-Publication Act 2010 are required in this instance because of the consequential aggravation of psychological harm and pre-existing mental health conditions may be anticipated if the application is refused: AB (A Pseudonym) v R (No 3) 2019 NSWLR 1046, [2019] NSWCCA 46 is cited.

  4. The Court of Criminal Appeal made orders inter alia,

(3) Order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW):

(a) that the applicant be referred to by the pseudonym AB.

(b) that publication of any information:

(i) tending to reveal the identity of AB, a party to these proceedings, in connection with these proceedings or in connection with the evidence given in these proceedings or in connection with information about evidence given in these proceedings; or

(ii) tending to reveal the identity of AB's spouse or children in connection with these proceedings or in connection with the evidence given in these proceedings or in connection with information about evidence given in these proceedings;

be prohibited.

(4) Order (3) shall apply:

(a) to all media including but not limited to print, radio, television, internet and social media;

(b) anywhere in the Commonwealth;

(c) until 20 years from the date of this order.

(5) Order (3) is made on the ground under s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the order is necessary to protect the safety of any person, namely, AB and AB’s spouse and children.

  1. The Crown does not cavil with the force of the authority cited, confirming the power given by the Act to make an order as sought by an applicant in the particular case where the circumstances require. As is clear though, each case will turn upon the fact from which it arises to which must be applied the legislation, which recognises the importance of open justice that in circumstances may be curtailed. AB (A Pseudonym) v R ibid was such a case arising out of circumstances in which egregious behaviour by media reporting inaccurately and threatening behaviour by others resulted in significant risk to the person charged and victims whose identity was prohibited from publication by other provisions. Mischief sought to be addressed had occurred and was so serious that the orders that were made would have been made beforehand.

  2. It is necessary to refer to the Court Suppression and Non-Publication Orders Act 2010 to consider the provisions to be applied to the circumstances here.

  3. Section 6 provides,

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

  1. Section 7 provides,

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.

  1. Section 8 provides,

  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,

(b)  the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(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 sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900),

(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.

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

  2. Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

  1. Section 9 provides relevantly,

(1) A court may make a suppression order or non-publication order on its own initiative or on the application of—

(a) a party to the proceedings concerned, or

(b)  any other person considered by the court to have a sufficient interest in the making of the order.

(2) Each of the following persons is entitled to appear and be heard by the court on an application for a suppression order or non-publication order—

(a)  the applicant for the order,

(b)  a party to the proceedings concerned,

(c)  ….,

(d)  …,

(e)  any other person who, in the court’s opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made.

(3) A suppression order or non-publication order may be made at any time during proceedings or after proceedings have concluded.

(4) A suppression order or non-publication order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order.

(5) A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which the order is made.

  1. The solicitor representing the applicant advanced submissions in support of the applicant’s brother who provided a document representing the impact of these proceedings upon him and the probable sequelae for him, his family, and his business should information about the appellant and his offences be exposed to the public gaze. Although not a named party in the proceedings my consideration of the issues included the status he asserted and the risks he identified should the application not succeed.

  2. The applicant argues that there is such a risk of psychological harm to him should his identify in conjunction with his offences be published, and such a risk to the welfare and economic circumstances of his brother and extended family, that the balance falls in favour of an order suppressing the information from publication.

  3. The Crown opposes the order sought but concedes that the infliction of self-harm and the nature of the self-harm chosen by the applicant could be suppressed and proscribed from publication for it is likely that would attract attention and focus beyond what the applicant ought to be required to bear.

  4. The Crown referred to Nationwide News Pty Limited vQaumi [2016] NSWCCA 97. The propositions at paras [20], [22], [23] and [24] are uncontroversial (emphases added):

20.By virtue of s 7, the only grounds upon which an order may be made under the Act are those specified in s 8(1). Section 8(1) requires that the order made must be “necessary” to achieve the objective identified in the relevant subparagraph. It is sufficient that the order is “necessary” to achieve one of the objectives identified in paras (a)-(e) of subs 8(1), although in a particular case, the making of an order may be necessary for more than one of the matters specified in the paragraphs of the subsection.

…

22. In Rinehart v Welker [2011] NSWCA 403, at [27], Bathurst CJ and McColl JA, in considering the background to the introduction of the Act, explained the meaning of “necessary” in s 8 as follows:

“The operative condition for making a suppression order under s 8 of the CSPO Act is that it be ‘necessary’ to do so, which ‘... is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice ... ‘suggests Parliament was not dealing with trivialities’ ’: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commission were made in relation to a legislative scheme which, while it required the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act) did not contain a provision in like terms to s 6 of the CSPO Act. That provision, in our view, reinforces the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd v District Court of NSW (at [21]).” (emphasis added)

23. Bathurst CJ and McColl JA observed, at [28], that “necessity” was the test that had been applied by the courts in the exercise of the inherent jurisdiction to make non-publication orders: …, the requirement of necessity as the test for making any order that impinges upon the rule of open justice has a long history: see R v Macfarlane; Ex parte O’Flanagan and O’Kelly [1923] HCA 39; 32 CLR 518 at 549, cited with approval by the plurality in Hogan v Hinch at [87].

24. Their Honours further noted, at [31], that it was not sufficient, to satisfy the test of necessity, that an order be “convenient, reasonable or sensible, or serve some notion of the public interest”. Their Honours pointed out that there was no question of engaging in a “balancing exercise”: see Hogan v Hinch at [31].

  1. I accept that there is significant embarrassment for the applicant arising from the commission of his offences, including the nature of the materials found in his possession attracting criminal sanction. I accept that his family members are embarrassed by the nature of his misconduct and what others would think of him. It is open to find that his self-harm was not with suicidal intent but to inflict punishment or address an underlying propensity arising from sexual interest in children. However, applying the relevant paragraphs from s 8(1) of the Act, I am not persuaded by the evidence offered to prove the impact of these offences and the nature of the conduct involved in them that the order sought is necessary (emphasis added):

  1. To prevent prejudice to the proper administration of justice, or

  2. To protect the safety of any person, or that 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 sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900), or is otherwise ne

  3. In the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

  1. The facts available from the evidence presented are that the appellant is distressed by his exposure to the extent that he has spoken of suicide, the self-harm was not such as to put his life at risk, he is embarrassed by the nature of the offences, and there is concomitant embarrassment anticipated in his brother and other family members and his brother’s fear of economic consequences should his business suffer because his clients and customers might not wish to continue as such considering the applicant’s misconduct.

  2. I am not satisfied that in these circumstances the order sought is necessary and I refuse the application.

The Decision and Orders

  1. Noting that the interim suppression and non-publication orders in the Local court expired on 30 May 2025 upon the determination of the appeals in the District Court, the application in the District Court for suppression and non-publication of the appellant’s identity as a party in these proceedings is refused. However, in respect of evidence, or information about evidence, given in proceedings before the court pertaining to the applicant’s infliction of self-harm:

  1. Pursuant to paragraph 7(b) upon the grounds specified in paragraphs 8(1)(c) and (d), Court Suppression and Non-Publication Orders Act 2010 publication of any information:

  1. in connection with the evidence given in these proceedings, or in connection with information about evidence given in these proceedings, concerning the infliction self-harm by the applicant after his arrest; or

  2. tending to reveal the nature and sequelae of the self-harm inflicted by the applicant after his arrest,

is prohibited.

  1. Order (1) applies to all persons and extends to:

  1. all media including but not limited to print, radio, television, internet and social media,

  2. anywhere in the Commonwealth of Australia,

  3. until 10 years from the date of this order.

**********

Amendments

27 August 2025 - Paragraph 22 (1) (d)(g) & (m)


Paragraph 22 (3)


Altered to permit publication while maintaining NPO conditions

Decision last updated: 27 August 2025

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Cases Citing This Decision

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Cases Cited

6

Statutory Material Cited

4

AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46
Dacich v Director of Public Prosecutions (No 2) [2020] NSWCA 298
Nationwide News Pty Ltd v Qaumi [2016] NSWCCA 97