Citation: A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym) [2020] NSWSC 1713
Court: Supreme Court of New South Wales
Date: 2 December 2020
Judge: Cavanagh J
Background
A solicitor, identified by the pseudonym "A Lawyer," was charged in 2020 with aggravated sexual assault alleged to have occurred at his workplace law firm. The criminal proceedings remained at the committal stage in the Local Court. Two partners of the law firm (referred to as DA and JC) were also implicated in media coverage as employer-principals of the accused solicitor.
In October 2020, Magistrate Keady made a non-publication order protecting the identities of DA, JC, and the law firm, but refused to make any corresponding order protecting the identity of the accused solicitor. Two separate appeals to the Supreme Court followed: one by the solicitor seeking an order protecting his own identity, and one by media organisations challenging the orders protecting DA, JC, and the law firm.
Cavanagh J heard both appeals together as a rehearing de novo under s 14 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act). Both the solicitor and DA and JC ultimately relied solely on the "safety ground" under s 8(1)(c) of the Act, which permits a suppression or non-publication order where one is "necessary to protect the safety of any person."
Legal Issues
- Whether leave to appeal should be granted to both the solicitor and the media parties under s 14 of the Act.
- Whether the phrase "any person" in s 8(1)(c) extends to third parties not directly involved in the proceedings, such as the accused's mother.
- What "necessary" means in the context of the safety ground, and how real or serious a risk must be before an order is warranted.
- Whether "safety" in s 8(1)(c) encompasses the risk of self-harm arising from the aggravation of pre-existing psychiatric illness caused by media reporting.
- Whether the potential for fair or accurate media reporting, or other mitigating steps, is relevant to the necessity assessment.
- Whether the orders protecting DA, JC, and the law firm were justified on the safety ground.
Decision
Cavanagh J confirmed that an appeal under s 14 of the Act is a hearing de novo, meaning the Supreme Court hears the matter afresh and may receive fresh evidence regardless of whether error in the lower court decision is identified. Leave to appeal was required in both proceedings, and his Honour granted it in each case.
On the meaning of the safety ground, Cavanagh J held that "any person" in s 8(1)(c) is not limited to parties or witnesses in the proceedings. It can encompass a third party, such as the accused's mother, whose safety might genuinely be at risk as a consequence of publication. His Honour also accepted that "safety" includes the risk of self-harm arising from the aggravation of a pre-existing psychiatric condition triggered by media reporting, not only risk of harm from the actions of others.
On the question of necessity, Cavanagh J applied a calculus of risk approach: the court must weigh the seriousness and likelihood of the identified harm against the fundamental principle of open justice. The standard is demanding. The mere possibility of harm, or speculative psychiatric risk, will not suffice. His Honour found that the evidence concerning the solicitor's mother disclosed a sufficiently serious and real psychiatric risk to satisfy the safety ground, and made a non-publication order in respect of his identity on that basis.
In contrast, Cavanagh J dismissed the media parties' appeal against the orders protecting DA, JC, and the law firm. The Magistrate's orders in respect of those persons were upheld. His Honour also addressed the relevance of media accuracy and fairness, indicating that the prospect of accurate or fair reporting does not, of itself, negate the necessity for an order where genuine safety risks have been established.
Orders Made
- The solicitor's appeal (Proceedings 2020/294356) was allowed: a non-publication order was made under s 7 of the Act prohibiting publication of any information tending to reveal the solicitor's identity, on the ground that it is necessary to protect the safety of a person under s 8(1)(c), applicable throughout the Commonwealth of Australia until the conclusion of the criminal proceedings.
- The media parties' appeal (Proceedings 2020/297599) was dismissed, leaving intact the Magistrate's orders (orders 2, 3, and 5 of 9 October 2020) protecting the identities of DA, JC, and the law firm.
- A non-publication order was also made in respect of the Supreme Court proceedings prohibiting publication of information tending to reveal the identities of DA, JC, and the law firm.
- Access to the judgment was restricted pending further application or orders within seven days.
- The parties were granted liberty to re-list either matter on two days' notice on any issue arising from the judgment, including costs.
- The parties were directed to consider whether further orders were necessary in respect of parts of the judgment, including material relating to the mental health and treatment of persons involved.
Key Takeaways
- The "safety ground" in s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) extends to third parties with no formal role in the proceedings: the court found that "any person" is not confined to accused persons, witnesses, or parties.
- A risk of self-harm arising from the aggravation of a pre-existing psychiatric illness, caused by media reporting of criminal proceedings, can constitute a threat to "safety" within the meaning of s 8(1)(c).
- Necessity under s 8(1)(c) is assessed by a calculus of risk: the seriousness and likelihood of the identified harm must be weighed against the principle of open justice, and the threshold is a high one. Speculative or remote risks will not be sufficient.
- The prospect of accurate or fair media reporting does not automatically defeat a safety-based application. Where the risk of harm is real and serious, the manner of anticipated reporting does not negate necessity.
- Under s 14 of the Act, an appeal is a hearing de novo: the Supreme Court rehears the matter on any evidence, including fresh evidence, and is not confined to correcting error in the lower court decision.
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 9, 13, 14
- Crimes Act 1900 (NSW), ss 61J, 578A
Cases:
- AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46
- D1 v P1 [2012] NSWCA 314
- Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
- Hamzy v R [2013] NSWCCA 156
- Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4
- John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465
- John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324
- Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
- Liu v Fairfax Media Publications Ltd [2018] NSWCCA 159
- R v AB (No 1) (2018) 97 NSWLR 1015; [2018] NSWCCA 113
- Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
- Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403