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2
Court of Criminal Appeal 5 April 2019

Darren Brown (a pseudonym) v R (No 2)

[2019] NSWCCA 69

Public order & justice offences
CRIMINAL PROCEDURE SUPPRESSION AND NON PUBLICATION ORDERS SUPPRESSION AND NON PUBLICATION ORDERS SUPPRESSION AND NON

Citation: Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 5 April 2019
Judges: Payne JA; Johnson J; N Adams J

Background

The appellant had successfully appealed his sentence in the Court of Criminal Appeal, with that judgment published on the NSW Caselaw website on 21 November 2018 in accordance with the Court's usual practice. The judgment, once published, was widely re-published electronically. Critically, no application had been made by any party for suppression orders, pseudonym orders, or a closed court at any stage of the appeal proceedings.

Approximately one week after publication, the Court was first notified that such orders might be sought. A formal notice of motion was not filed until 25 January 2019, roughly two months after judgment. The appellant's solicitor deposed that the appellant had expressed concerns for his own safety and that of his family if the judgment remained accessible online, given that the reasons revealed his assistance to law enforcement authorities.

The NSW Police also sought orders, and the matter became further complicated when the District Court judge resentencing the appellant on 31 January 2019 made suppression orders purporting to affect the dissemination of the Court of Criminal Appeal's own judgment. The Court of Criminal Appeal was not informed of those District Court orders before or after they were made, and they only came to light through a JusticeLink search.

  • Whether a suppression or pseudonym order was "necessary to prevent prejudice to the proper administration of justice" under s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW)
  • Whether an order was "necessary to protect the safety of any person" under s 8(1)(c)
  • Whether an order was "otherwise necessary in the public interest" and that interest significantly outweighed the public interest in open justice under s 8(1)(e)
  • Whether orders sought after a judgment had already been widely published online could be effective, or whether they lacked utility
  • Whether the delay in making the application was relevant to the exercise of the Court's discretion

Decision

The Court confirmed that the test of "necessity" under s 8(1) of the Act imposes a high threshold. It is not sufficient that a proposed order appears convenient, reasonable or sensible. The Court must be satisfied the order is genuinely necessary to protect an identified interest, and it must also assess whether the order will actually be effective, or whether it lacks utility given the information has already entered the public domain.

The Court applied the "calculus of risk" approach, weighing the seriousness of the potential harm against the probability of it eventuating, taking into account the extent to which the information had already been disseminated. Despite the delay and prior online publication, the Court found that a sufficiently serious potential risk to the appellant's physical safety had been demonstrated to justify a pseudonym order and limited, targeted redactions to the principal judgment. The judgment noted that by the time of this decision, the un-redacted version had already been removed from Caselaw and steps had been taken to have it removed from republication sites.

The Court declined to make the broader suppression orders sought, including orders prohibiting publication of information tending to reveal the appellant's assistance to law enforcement. It held that the existing pseudonym order and targeted redactions were sufficient, and that the additional orders were not necessary in the relevant sense. The Court expressly stated that this case did not disturb the settled procedure for dealing with assistance matters in sentencing appeals: such matters may ordinarily be addressed in judgments without pseudonyms or redactions.

The Court also set aside the suppression orders made by Culver DCJ in the District Court on 31 January 2019. The District Court had been placed in an invidious position by the parties in being asked to make orders affecting a Court of Criminal Appeal judgment. The Court described the failure to inform it of those orders, either before or after they were made, as an undesirable aspect of how the parties and NSW Police had conducted the matter.

Orders Made

  • The suppression orders of Culver DCJ made on 31 January 2019 were set aside.
  • In their place, the Court ordered under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW):
  • The appellant to be identified in connection with all proceedings (including District Court proceedings) by the pseudonym "Darren Brown," on the ground that the order is necessary to protect the safety of one or more persons.
  • Publication prohibited of any information tending to reveal the identity of "Darren Brown" as a party to these proceedings, or the identity of his family members, in connection with the proceedings or evidence given in them.
  • Specified paragraphs of the Court's judgment dated 21 November 2018 to be redacted as described at paragraph [40] of the reasons.
  • All orders to apply to all media (including print, radio, television, internet, and social media), anywhere in the Commonwealth, for a duration of 20 years from the date of the order.
  • The order made on the ground in s 8(1)(c): necessary to protect the safety of Darren Brown and his spouse and family.

Key Takeaways

  • Under the Court Suppression and Non-publication Orders Act 2010 (NSW), the "necessity" threshold is high: an order that is merely convenient, reasonable, or sensible does not satisfy it, and the court must also consider whether the order will have any practical effect given prior publication.
  • The "calculus of risk" approach governs the necessity assessment, requiring the court to weigh the gravity of potential harm against the likelihood of that harm materialising, having regard to how widely the information has already circulated.
  • Applications for suppression or pseudonym orders must be raised promptly, before or at the hearing, not weeks or months after judgment has been published and widely re-published online.
  • A District Court cannot validly make suppression orders affecting the published judgment of the Court of Criminal Appeal; the proper course is to bring any such application to the higher court that delivered the judgment.
  • Assistance by a person being sentenced remains a matter that can ordinarily be addressed in judgments of the Court of Criminal Appeal without pseudonym orders or redactions; this decision does not alter that settled procedure.

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6, 7, 8
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23

Cases
- Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
- D1 v P1 [2012] NSWCA 314
- AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46
- AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; 93 ALJR 59
- Matthews v R (No 2) [2013] NSWCCA 194
- R v Cartwright (1989) 17 NSWLR 243
- Greentree v R [2018] NSWCCA 227
- R v Fandakis [2002] NSWCCA 5
- Cain v Glass (No 2) (1985) 3 NSWLR 230
- Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643; [2007] NSWCA 366
- Commonwealth Director of Public Prosecutions v Christian [2019] FCAFC 5
- R v Smith (1996) 86 A Crim R 308