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District Court 10 September 2021

R v AB (A pseudonym) (No.3)

[2021] NSWDC 482

Public order & justice offences
CRIMINAL PROCEDURE C OURT S UPPRESSION AND N ON PUBLICATION O RDERS REVIEW OF SUPPRESSION ORDERS

Citation: R v AB (A pseudonym) (No.3) [2021] NSWDC 482
Court: District Court of New South Wales
Date: 10 September 2021
Judge: Abadee DCJ

Background

In May 2021, the District Court sentenced an offender who had pleaded guilty to robbery in company. Before the sentencing hearing, the Court made a suppression order under the Court Suppression and Non-Publication Act 2010 (NSW), which among other things suppressed the disclosure of evidence given in the proceedings. A news publisher was granted leave to appear and opposed the suppression application, but the orders were made nonetheless.

The publisher then sought access to a forensic psychologist's report that had been tendered and extensively discussed during the sentencing proceedings. The Court's Registry declined access to that report. The publisher renewed its request, explaining that it wished to review the report's contents in order to obtain legal advice and decide whether to seek a review of the suppression order or apply for leave to appeal it.

By a notice of motion filed in September 2021, the publisher formally applied for access to, and photocopying rights over, the psychologist's report. The offender opposed the application; the Crown did not appear.

  • Whether the Court had power to grant a media organisation access to a suppressed exhibit for the purpose of considering a challenge to the suppression order itself (as distinct from publishing a report of the proceedings).
  • Whether s 314 of the Criminal Procedure Act 1986 (NSW), which regulates media access to court documents, provided a basis for the application.
  • Whether the Court Suppression and Non-Publication Act 2010 (NSW), specifically the review and appeal provisions in ss 13 and 14, empowered the Court to vary its own suppression order to permit limited access.
  • Whether the Court's implied powers provided an alternative or supplementary source of power to make the order sought.

Decision

Abadee DCJ first considered whether s 314 of the Criminal Procedure Act supplied the relevant power. His Honour concluded it did not, because that provision is directed to facilitating media access for the purpose of compiling fair reports of criminal proceedings for publication. The present application served a different purpose entirely: obtaining access to consider and potentially prosecute an appeal or review of the suppression order itself.

The Court found a more appropriate source of power in the Court Suppression and Non-Publication Act itself. Section 9(4) of the Act allows a court to impose exceptions and conditions on a suppression order. Section 13 empowers the Court to review, on its own initiative, any suppression order it has made and, in doing so, to make "any other order" that the court may make under the Act. His Honour reasoned that this encompassed the carving out of a specific and limited exception to the existing suppression order so as to permit the publisher's legal representatives to access the report for the sole purpose of advising on and prosecuting any review or appeal.

The Court also found it at least reasonably arguable that an appellate court, in determining any leave application, could be influenced by the content of the psychologist's report. Granting the publisher's legal representatives access to that material was therefore appropriate to facilitate that process. His Honour noted as an alternative basis the Court's implied powers to regulate its own processes, drawing on Grassby v The Queen (1989) 168 CLR 1 and John Fairfax Publications v Ryde Local Court (2005) 62 NSWLR 512, where the standard of "necessity" was interpreted to connote reasonableness rather than strict essentiality.

On the question of what version of the report should be disclosed, the Court accepted that the offender's real name should be redacted and replaced with the pseudonym "AB." However, the Court declined to limit access to only those portions of the report said to be relevant to a potential appeal, noting that the publisher's legal representatives were officers of the court bound by the Harman undertaking (the implied obligation not to use documents obtained through litigation processes for collateral purposes), and that a contentious exercise in sifting through the report was both impractical and unnecessary.

Orders Made

  • The existing suppression order (order 2, made 11 May 2021) was varied to permit the Registrar to grant access, including photocopying access, to the forensic psychologist's report to the legal representatives of Nationwide News Ltd, solely for the purposes of: (a) providing legal advice in connection with considering whether to apply for review or leave to appeal the 11 May 2021 orders; and (b) prosecuting any such application.
  • The version of the report provided is to be redacted so that the pseudonym "AB" replaces any reference to the offender's real name.
  • The varied order is subject to any further order made by the District Court on a review application, or by the Court of Criminal Appeal on any leave to appeal application.
  • Liberty to apply is granted on three days' notice.

Key Takeaways

  • The District Court held that s 314 of the Criminal Procedure Act 1986 (NSW) does not provide a pathway for media access to court documents when the purpose is to pursue a challenge to a suppression order, rather than to compile a fair report of proceedings for publication.
  • Under ss 9(4) and 13 of the Court Suppression and Non-Publication Act 2010 (NSW), a court that has made a suppression order retains power, including on its own initiative, to vary that order by carving out a specific and limited exception to permit access for the purpose of a review or appeal of the order itself.
  • A media publisher that was granted leave to appear at the original suppression hearing has standing under s 14(3)(d) of the Act to seek leave to appeal that order, and may rely on fresh evidence on any such appeal.
  • The Court's implied power to regulate its own processes also provided an alternative basis for the order, with "necessity" in this context understood to mean reasonableness rather than strict essentiality, consistent with Grassby v The Queen and John Fairfax Publications v Ryde Local Court.
  • Access to the suppressed document was conditioned on redaction of identifying information and was limited to the publisher's legal representatives, who were bound by the Harman undertaking. No broader disclosure was authorised.

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-Publication Act 2010 (NSW), ss 7, 8, 9, 13, 14
- Criminal Procedure Act 1986 (NSW), s 314
- District Court Act 1973 (NSW)
- District Court Rules 1973 (NSW), Pt 52 r 3

Cases
- Grassby v The Queen (1989) 168 CLR 1
- John Fairfax Publications v Ryde Local Court & Ors (2005) 62 NSWLR 512
- PCC v Stylianou [2018] NSWCCA 300
- Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
- R (Cth) v Elomar [No.3] [2008] NSWSC 1443
- R v AB (a pseudonym) [2021] NSWDC 173
- R v AB (a pseudonym) (No.2) [2021] NSWDC 175