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Court of Criminal Appeal 8 March 2019

AB (A Pseudonym) v R (No 3)

[2019] NSWCCA 46

Also reported as (2019) 97 NSWLR 1046
Sexual offences
CRIMINAL PROCEDURE SUPPRESSION AND NON PUBLICATION ORDERS APPEAL AGAINST DECISION NOT TO MAKE NON PUBLICATION ORDER SUPPRESSION AND NON

Citation: AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46
Court: NSW Court of Criminal Appeal
Date: 8 March 2019
Judges: Hoeben CJ at CL, Price J, Adamson J

Background

The applicant, referred to throughout as AB, had pleaded guilty to historic sexual offences committed when he was aged between 17 and 24 against two complainants who were between seven and nine years his junior. The offences occurred within a closed rural church community. The sentencing judge imposed suspended sentences and noted highly unusual subjective circumstances, including the applicant's extreme social isolation, sexual naivety, and genuine remorse.

Following the sentence, a tabloid newspaper published an article that the Court found bore little resemblance to the actual facts. The reporting characterised the applicant as a predator who had raped young girls, inaccurately implied there was a suppression order protecting him from scrutiny, and prompted public figures to make critical statements about the sentencing. The coverage led to vehicles appearing at the applicant's rural property, and caused significant psychological harm to the applicant and his family.

The applicant sought a non-publication order under the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act) to protect his identity. A District Court judge refused that application on 23 January 2019, and the applicant sought leave to appeal that refusal to the Court of Criminal Appeal.

  • Whether the District Court judge materially misconstrued s 8(1)(c) of the Act by applying a "probable harm" test rather than a "calculus of risk" approach when assessing whether an order was necessary to protect a person's safety.
  • Whether, on a rehearing under s 14(5) of the Act, the evidence established that a non-publication order was necessary to protect the safety of the applicant and his family.
  • The appropriate scope and duration of any non-publication order.

Decision

The Court of Criminal Appeal granted leave to appeal, finding that the primary judge had applied the wrong legal test. The judge below had assessed whether physical harm to the applicant was probable, whereas the correct approach under s 8(1)(c) required a broader "calculus of risk": weighing the nature of the potential harm, its gravity, and the likelihood of its occurrence, without requiring that harm be shown to be probable. This misconstruction of the statutory threshold was a material error that justified appellate intervention.

The Court then conducted a rehearing on the merits under s 14(5) of the Act. The evidence included accounts of threatening behaviour toward the applicant following the initial publicity in 2015 and the more substantial media campaign in late 2017, as well as evidence of significant and ongoing psychological harm to the applicant and members of his family. The Court also considered the misreporting itself, which had characterised AB in terms that bore no relation to the sentencing judge's findings and which had foreseeably incited community hostility.

The Court was satisfied that publishing AB's identity created a real and serious risk of physical harm, and that significant psychological harm to the applicant and his family had already occurred and would continue. The decision to make a non-publication order under s 8(1)(c) is not discretionary once the court is satisfied the order is necessary, in light of the construction of the Act confirmed in prior authority. The Court found the order was necessary to protect the safety of AB, his spouse, and his children.

Because the Court was not satisfied that a shorter period would suffice, it made the order for 20 years, the term sought by the applicant.

Orders Made

  • Leave to appeal granted against the District Court's refusal to make a non-publication order.
  • Appeal allowed.
  • Non-publication order made under s 7 of the Act, prohibiting publication of any information tending to reveal the identity of AB (or AB's spouse or children) in connection with the proceedings.
  • The order applies to all media, including print, radio, television, internet, and social media, anywhere in the Commonwealth.
  • The order operates for 20 years from the date of the decision (8 March 2019).
  • The order is made on the ground under s 8(1)(c) that it is necessary to protect the safety of AB and AB's spouse and children.

Key Takeaways

  • The Court of Criminal Appeal confirmed that s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) requires a "calculus of risk" approach, not a test of probable harm. A court assessing whether an order is "necessary" to protect a person's safety must weigh the likelihood of harm against its gravity and nature, without requiring that harm be probable.

  • Under s 8(1)(c), once a court is satisfied that an order is necessary to protect safety, the making of the order is not a matter of discretion. The statutory language compels the order in those circumstances, consistent with the construction confirmed in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim and Rinehart v Welker.

  • Misreporting by media that bears little resemblance to actual court findings can be a material factor in establishing the necessity of a non-publication order, particularly where the reporting has demonstrably incited hostility toward the subject.

  • Significant psychological harm to the applicant and the applicant's immediate family was accepted as relevant to the safety ground under s 8(1)(c), not merely risk of physical harm.

  • Where a court cannot identify a shorter period after which a non-publication order will no longer be necessary, a 20-year order is open under s 12 of the Act, which requires only that the order operate for no longer than is reasonably necessary for its purpose.

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 10, 12, 13, 14
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15D
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Evidence Act 1995 (NSW), s 64
- Federal Court Act 1976 (Cth), s 50
- Interpretation Act 1987 (NSW), s 33

Cases
- Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
- Rinehart v Welker (2016) 93 NSWLR 311; [2011] NSWCA 403
- Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21
- John Fairfax Publications Pty Limited v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324
- AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6
- R v AB (No 1) [2018] NSWCCA 113
- R v AB (No 2) [2018] NSWCCA 148
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Devries v Australian National Railways Commission (1993) 177 CLR 472
- D1 v P1 [2012] NSWCA 314
- Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36