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6
Court of Criminal Appeal 6 June 2018

R v AB (No 1)

[2018] NSWCCA 113

Sexual offencesPublic order & justice offences
CRIME SUPPRESSION AND NON PUBLICATION ORDERS ORDER NOT NECESSARY

Citation: R v AB (No 1) [2018] NSWCCA 113
Court: Court of Criminal Appeal, New South Wales
Date: 6 June 2018
Judge(s): Meagher JA; Rothman J; Garling J

Background

The respondent pleaded guilty to eight historical child sex offences against two complainants, both under 18 at the time of the offending. Some offences were committed while the respondent was himself under 18, which engaged the protections in the Children (Criminal Proceedings) Act 1987 (NSW). That statute independently prohibits any publication identifying the respondent in connection with those proceedings.

At sentence in the District Court, the primary judge made suppression and non-publication orders under s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) ("the Suppression Orders Act"), preventing publication of the respondent's name. The orders were made without specifying the grounds, duration, or geographic reach required by the Act. The primary judge's reasons were also brief.

The Crown appealed. The respondent argued the orders were necessary because media outlets had already published material in apparent breach of s 15A of the Children (Criminal Proceedings) Act, and because he had received threats to his physical safety, including the removal of a wheel hub from his vehicle. The respondent also challenged whether the Court of Criminal Appeal had jurisdiction to hear the appeal at all.

  • Whether the Court of Criminal Appeal had jurisdiction to hear the Crown's appeal against the suppression orders under s 14 of the Suppression Orders Act.
  • Whether the suppression and non-publication orders were "necessary" under s 8(1)(a) of the Suppression Orders Act to prevent prejudice to the proper administration of justice, given alleged breaches of s 15A of the Children (Criminal Proceedings) Act.
  • Whether the orders were "necessary" under s 8(1)(c) to protect the physical safety of the respondent or his family.
  • What "necessary" means in the context of s 8 of the Suppression Orders Act.

Decision

Jurisdiction. The respondent argued the Court of Criminal Appeal lacked jurisdiction. The Court rejected this. Section 14 of the Suppression Orders Act confers jurisdiction on the court to which appeals against orders made in the relevant criminal jurisdiction normally lie. That provision is not directed to whether a right of appeal actually exists at the moment jurisdiction is considered. The Court of Criminal Appeal therefore had jurisdiction to hear the appeal.

Administration of justice. The Court held the orders were not necessary to protect the proper administration of justice. Where media outlets had published material apparently in breach of s 15A of the Children (Criminal Proceedings) Act, the appropriate response was to bring enforcement proceedings under s 15A(7) of that Act. The evidence also failed to demonstrate that anyone had taken steps to bring the s 15A prohibition to the attention of the broadcasters alleged to have contravened it. A suppression order under the Suppression Orders Act was not the correct mechanism to address apparent non-compliance with a separate statutory prohibition.

Safety of the respondent. The Court also found the safety ground was not established. The evidence did not identify a real risk of physical harm to the respondent or his family. Garling J specifically noted that the statutory prohibition in the Children (Criminal Proceedings) Act continued to operate independently, preventing publication of the respondent's name without any further order being required.

Meaning of "necessary". Rothman J considered the interpretation of "necessary" in s 8, concluding it means "reasonably required or legally ancillary" rather than "essential." However, his Honour noted that distinction may be more academic than practical in most cases. Any basis for making an order must still be balanced against the overriding public interest in open justice.

Orders Made

  • Leave to appeal granted.
  • The appeal was allowed.
  • The suppression and non-publication orders made in the District Court were set aside.

Key Takeaways

  • The Court of Criminal Appeal confirmed its jurisdiction to hear appeals against suppression orders made in the District Court's criminal jurisdiction under s 14 of the Suppression Orders Act, regardless of whether a separate right of appeal technically existed at the moment jurisdiction was assessed.
  • Apparent breaches of the identification prohibition in s 15A of the Children (Criminal Proceedings) Act do not, without more, justify a suppression order under the Suppression Orders Act. The statute's own enforcement mechanism under s 15A(7) is the appropriate remedy.
  • Under s 8 of the Suppression Orders Act, a suppression order made on safety grounds requires evidence of a real risk of harm. Generalised threats or isolated incidents, without sufficient supporting evidence, do not satisfy that threshold.
  • A statutory prohibition on publication continues to operate independently of any court-issued suppression order. Where legislation already prevents publication of a person's identity, a further order under the Suppression Orders Act may simply not be warranted.
  • Rothman J clarified (on a preliminary basis) that "necessary" in s 8 means "reasonably required or legally ancillary," not "essential," though any order must still be weighed against the public interest in open justice.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), especially s 15A
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 11, 12, 14
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)

Key Cases
- Fairfax Digital Australia and 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
- Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19
- Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
- Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4
- Hamzy v R [2013] NSWCCA 156
- Federated Engine-Drivers and Firemen's Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398; [1911] HCA 31