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District Court 11 May 2021

R v AB (A pseudonym)

[2021] NSWDC 173

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW PUBLICATION ORDER

Citation: R v AB (A pseudonym) [2021] NSWDC 173
Court: District Court of NSW
Date: 11 May 2021
Judge: Abadee DCJ

Background

An offender appeared before the District Court for sentencing following a guilty plea to robbery in company. In brief, she had arranged for an unidentified male to assault and rob a victim during a beach walk, having initially met the victim through arrangements for a paid sexual encounter.

When the offender entered her plea at Wyong Local Court in November 2020, two newspaper articles were published describing the events. The offender and her legal team contended those articles were unbalanced in material respects, including that they implied she knew the victim was an amputee and that she had initiated the encounter, neither of which accorded with the agreed facts.

The articles generated substantial derogatory commentary on Facebook, including two directly abusive messages sent to the offender personally. The offender had a pre-existing history of mental illness and multiple suicide attempts, and a forensic psychologist opined that the media reporting had already adversely affected her mental health. Against that background, the offender applied by notice of motion for a pseudonym order and a non-publication order suppressing information identifying her. Nationwide News Pty Ltd was granted leave to appear in opposition.

  • Whether exceptional circumstances existed to justify a suppression or non-publication order under the Court Suppression and Non-Publication Act 2010 (NSW)
  • Whether the order was necessary to protect the offender's safety under s 8(1)(c), including her psychological safety
  • Whether any such order would have practical utility given the existing volume of online commentary
  • Whether the public interest in making the order significantly outweighed the public interest in open justice under s 8(1)(e)

Decision

Abadee DCJ acknowledged the foundational importance of open justice under s 6 of the Act and the role of the media as the "Fourth Estate" in communicating court proceedings to the public. The court accepted, however, that the newspaper coverage was unbalanced in at least three ways: it presented the victim as having been lured when the agreed facts indicated he had initiated the encounter; it omitted the offender's claims of prior sexual harassment by the victim; and it implied she knew of the victim's disability when she contested that fact.

The court found a direct connection between the unbalanced reporting and the "venomous, if not vicious" social media posts that followed. The publisher's disclaimer of any responsibility for the social media activity was noted and treated as relevant: rather than negating the causal link, the court considered it indicative of a risk that further reporting would generate further harm without the publisher accepting accountability for downstream consequences.

On the utility argument, the court distinguished between harm already done and harm that further reporting could cause. The fact that some damage was already ineradicable did not mean a non-publication order would be futile as a protective measure against additional harm arising from sentencing coverage.

The court was satisfied that the risk of further psychological harm was sufficiently serious to engage the safety ground in s 8(1)(c), noting that psychological safety, including the aggravation of a pre-existing mental condition, falls within the meaning of "safety" under that provision. The orders were granted for a defined period extending to the expiry of appeal rights, estimated at three years, in keeping with the requirement for specificity in duration. The court declined to extend the orders to other persons named in the agreed facts, limiting them to the offender's name and residential address.

Orders Made

  • The applicant to be referred to by the pseudonym "AB" until 11 May 2024, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW)
  • Prohibition on disclosure of information identifying AB, specifically her name and residential address, until 11 May 2024
  • Both orders made on the basis that they are necessary to protect the safety of the applicant

Key Takeaways

  • Under the Court Suppression and Non-Publication Act 2010 (NSW), suppression or non-publication orders may only be made in exceptional circumstances; it is not sufficient that an order is merely convenient, reasonable or sensible.
  • "Safety" in s 8(1)(c) includes psychological safety, encompassing the aggravation of a pre-existing mental condition, as confirmed in AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046 and applied in DRJ v Commissioner of Victims Rights [2020] NSWCA 136.
  • Existing online commentary does not automatically defeat an application on utility grounds. The District Court distinguished between harm already sustained and prospective harm from further reporting, holding that a non-publication order retains utility if it prevents additional damage.
  • A media publisher's disavowal of responsibility for social media commentary that foreseeably flows from its own unbalanced reporting was treated by the court as relevant to, rather than a negation of, the risk of further harm.
  • Specificity of duration is required when making suppression orders; the court tied the period here to the expiry of the offender's appeal rights, estimated at three years from the date of sentence.

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-Publication Act 2010 (NSW), ss 6, 7, 8

Cases
- AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046
- DRJ v Commissioner of Victims Rights [2020] NSWCA 136
- Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384