Citation: R v AB (A Pseudonym) (No. 4) [2022] NSWDC 17
Court: District Court of New South Wales
Date: 11 February 2022
Judge(s): Abadee DCJ
Background
In May 2021, the District Court at Gosford made pseudonym and non-publication orders protecting the identity of an offender ("AB") who had pleaded guilty to robbery in company. The orders were made after newspaper articles published by Nationwide News Pty Ltd depicted AB in a manner the Court found to be unbalanced. AB had been diagnosed with PTSD, bipolar disorder, and ADHD, and the Court grounded the original orders in s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), finding them necessary to protect AB's safety, including psychological safety.
The orders were subsequently varied in September 2021 to allow the publisher limited access to a redacted forensic psychology report by Ms Sarah Brann, which had informed the original decision. In December 2021, the publisher filed a notice of motion seeking full revocation of the orders.
AB opposed revocation, relying in part on evidence of events in AB's life since the orders were made. The Crown did not seek to be heard on the application.
Legal Issues
- Whether the pseudonym and non-publication orders made on 11 May 2021 should be revoked under s 13 of the Court Suppression and Non-Publication Orders Act 2010 (NSW)
- What the correct legal framework is for reviewing such orders, including whether changed circumstances or fresh evidence may be considered
- Whether the continued operation of the orders remained "necessary" to protect AB's safety under s 8(1)(c) of the Act, balanced against the principle of open justice
- Whether the fact that AB's identity had previously been published was a basis for revoking the orders
Decision
Abadee DCJ confirmed the orders and refused the publisher's application for revocation. On review, the Court's task is a reconsideration of the s 8 grounds as they apply at the time of the review hearing, not an identification of error in the original decision. Either party may adduce fresh evidence, and the review process is distinct from an appeal.
The Court applied the principles set out by the Court of Appeal in Council of the NSW Bar Association v EFA (a pseudonym) [2021] NSWCA 339, which confirmed that "necessity" under s 8(1)(c) encompasses harm to a person's psychological safety, including aggravation of a pre-existing mental health condition. The assessment of necessity requires the Court to weigh the nature, imminence, and degree of likely harm against the principle of open justice.
The Court found that the orders had been demonstrably effective: AB's mental health had tangibly improved since they were made. However, revocation would expose AB to a real and substantial risk of further unbalanced reporting, comparable social media harassment, and a serious deterioration in mental health, including suicidal ideation. That risk was sufficient to meet the necessity threshold.
The Court rejected the publisher's "horse has bolted" argument, confirming that prior publication of a person's identity does not in itself defeat an application for, or continuation of, suppression orders. The publisher proposed no alternative measures that might achieve the same protective outcome, and its fall-back position of allowing the orders to expire on the day of the decision was also rejected as inconsistent with the earlier reasoning about the appropriate duration of the orders.
Orders Made
- The publisher's application for revocation of the pseudonym and non-publication orders was refused.
- The orders made on 11 May 2021, as varied on 10 September 2021, were confirmed.
Key Takeaways
- A review under s 13 of the Court Suppression and Non-Publication Orders Act 2010 is a fresh reconsideration of the s 8 grounds as at the time of the review hearing, not an appeal requiring identification of error in the original order.
- Under s 8(1)(c), "necessity" to protect a person's safety encompasses psychological safety and the aggravation of pre-existing mental health conditions, provided that the degree and likelihood of harm are weighed against the principle of open justice.
- Prior publication of a person's identity does not, by itself, justify revoking suppression or non-publication orders; the risk of further harmful reporting remains a relevant and cognisable consideration.
- Improvement in a protected person's mental health condition during the currency of the orders is capable of evidencing the orders' efficacy and supporting their continuation, rather than forming a basis for their revocation.
- Where a party seeks revocation of orders under the Act, the failure to propose any less-restrictive alternative that could achieve the same protective outcome is a relevant factor in the court's assessment.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 8, 13
- Crimes Act 1900 (NSW), s 97
Cases
- Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339
- D1 v P1 [2012] NSWCA 314
- JB v R [2019] NSWCCA 48
- Telstra Corporation Ltd v NBN Co Ltd [2014] NSWSC 940
- R v AB (A pseudonym) [2021] NSWDC 173
- R v AB (A pseudonym) (No. 2) [2021] NSWDC 175
- R v AB (A pseudonym) (No. 3) [2021] NSWDC 482