Xx (Pseudonym) v Nationwide News Pty Limited

[2022] NSWDC 405

District Court

New South Wales

Medium Neutral Citation:

XX (Pseudonym) v Nationwide News Pty Limited [2022] NSWDC 405

Hearing dates:

12 August 2022

Date of orders:

12 August 2022
09 September 2022

Decision date:

09 September 2022

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

At [9]

Catchwords:

Suppression and non-publication order – take down order

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010

Cases Cited:

AB v R (No 3) [2019] NSWCCA 46

Hogan v Australian Crime Commission [2010] HCA 21

Category:

Consequential orders

Parties:

XX (a barrister)
Nationwide News Pty Ltd

Representation:

Counsel:
Ms Rodger (Applicant)

Solicitors:
Mr Reslan (Applicant)
Mr Coombs (Respondent)

File Number(s):

Application related to proceedings 2020/111645

Publication restriction:

Non-publication and suppression order relating to the identity of the accused XH and the applicant barrister.

Judgment

1. By Notice of Motion dated 10 August 2022, a barrister (the Protected Person) formally retained on behalf of an accused person seeks a “take-down” order in respect of two articles published by Nationwide News (the Publisher) following the making of a non-publication and suppression order which I made on 20 July 2022 concerning the identity of the Protected Person.

2. The articles were published by the Daily Telegraph on 3 May 2022 and 10 May 2022. They remained available to be accessed on the Internet, notwithstanding the orders made on 20 July 2022.

3. I do not intend to revisit the reasons for the suppression and non-publication orders, save to observe that I found that the orders were necessary to protect the safety of a person (section 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (the Act)). Following that finding I made an order pursuant to section 7 of the Act that the name of the Protected Person be suppressed and that no information identifying him was to be published from 2:00PM on 20 July 2022 until the order was lifted.

4. In making that order, I took into account that a primary objective of the administration of justice is to safeguard the public interest in open justice (s 6). That interest was weighed against the risk to the safety of the protected person. I concluded that in this instance the public interest in open justice was outweighed by the risk to the safety of the Protected Person. I remain of that view.

5. The correct approach to the interpretation of section 8(1)(c) is the “calculus of risk approach” which requires the court to consider the nature, imminence and degree of likelihood of harm to the relevant person when determining whether an order is necessary to protect the safety of the person (AB v R (No 3) [2019] NSWCCA 46). That subsection is not confined to the physical safety of a person that also encompasses psychological safety. Further, the court does not have a discretion to refuse to make a suppression or non-publication order once it is satisfied that the order is necessary (Hogan v Australian Crime Commission [2010] HCA 21).

6. In support of the orders sought in the Notice of Motion, the applicant relied upon an affidavit of Abdullah Reslan sworn 11 August 2022 (Exhibit A). Mr Reslan undertook an Internet search on 10 August 2022 and discovered that the two articles published by the Daily Telegraph remained accessible online. The Uniform Resource Locator (URL) or web address for those articles are referred to in paragraph 5 of the affidavit. The application is also supported by a report by a psychiatrist dated 26 July 2022 in respect of the protected person (Exhibit B).

7. The application was opposed by Mr Coombs for the Publisher. There is no suggestion that the reporting was in any way unfair or inaccurate. Further, this is not an example of a criminal case where denunciation of a person’s conduct would be subverted by the granting of the non-publication order. The principal basis upon which the publisher sought to resist the taking down order was that to do so offends the principles concerning the public interest in open justice. That question was determined by me when the suppression and non-publication orders were made.

8. It was submitted for the protected person that to not make the take-down order would render the suppression and non-publication orders a nullity. I accept that submission. I raised with Mr Coombs whether the fact that the articles were still available online and readily discoverable upon a very basic search would result in the articles in respect of the Protected Person being retrieved on every such occasion such that the publisher would be in breach of the suppression and non-publication orders when that occurred. He was not in a position to answer that question.

9. In order to give effect to the integrity of the suppression and non-publication orders which I have made, and to prevent the Publisher from contravening those orders, I make the following consequential orders:

1. the Daily Telegraph is to remove from its website an article published on 3 May 2022 entitled in part “Barrister Denies Allegations of Sex with Client”. The URL for that article is set out in paragraph 5 of exhibit A;

2. the Daily Telegraph is to remove from its website an article published on 10 May 2022 entitles in part “Barrister Suspended by NSW Bar”. The URL for that article is also set out in paragraph 5 of exhibit A;

3. orders (a) and (b) to be complied with by 11:59 pm on 12 August 2022;

4. orders (a) and (b) apply throughout the Commonwealth of Australia;

5. order 1 made 20 July 2022 is varied so that the suppression and non-publication order made at that time shall remain in place for a period of 20 years or until further order; and

6. I grant liberty to the publisher to make an application to vary these orders in the event that the circumstances of the Protected Person materially change.

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Decision last updated: 09 September 2022