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Court of Criminal Appeal 18 May 2023

AXR (a pseudonym) v R (No 2)

[2023] NSWCCA 113

Firearms & weapons
NON

Citation: AXR (a pseudonym) v R (No 2) [2023] NSWCCA 113
Court: Court of Criminal Appeal, NSW
Date: 18 May 2023
Judges: Adamson JA; Garling J; Button J

Background

The appellant, referred to by the pseudonym AXR, had sought leave to appeal against a sentence imposed in 2021 for possession of a firearm while subject to a Firearms Prohibition Order under the Firearms Act 1996 (NSW). His sole ground was that the sentence was manifestly excessive, arguing that insufficient weight had been given to his willingness to hand the weapons to police and his cooperation as an informant. The Court of Criminal Appeal dismissed that appeal on 7 December 2022 but deferred publication of its reasons pending a separate application for non-publication orders.

AXR applied on 19 December 2022 for non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW). The NSW Commissioner of Police made a parallel application. This judgment, AXR v R (No 2), sets out the Court's reasons for the non-publication orders it ultimately made on 19 April 2023.

  • Whether non-publication orders were necessary under s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) to protect the appellant's identity and safety as a police informant.
  • Whether the public interest in preserving the confidentiality of police informants outweighed the public interest in open justice under s 8(1)(e) of the Act.
  • What geographic scope and duration were appropriate for any non-publication orders, having regard to the requirement under s 12(2) of the Act that orders operate no longer than reasonably necessary.

Decision

The Court accepted that non-publication orders were necessary on two distinct grounds. First, disclosure of AXR's status and assistance as a police informant posed a real risk to his personal safety, satisfying s 8(1)(c) of the Act. Second, the public interest in protecting the identity of police informants significantly outweighed the public interest in open justice, satisfying s 8(1)(e).

The Court determined that a period of 30 years from the date of the orders was no longer than reasonably necessary to achieve the protective purpose of the orders. It also found that the orders needed to operate throughout the Commonwealth of Australia, rather than being confined to New South Wales, to be effective.

To balance these protections against the principle of open justice, the Court published a redacted version of the original appeal judgment on the Judicial Information Research System (JIRS) as a restricted judgment. That redacted version (AXR (a pseudonym) v R [2022] NSWCCA 257) was designed to preserve as much public access as possible without revealing AXR's identity or his cooperation with police.

Orders Made

  • No publication of those parts of the judgment delivered on 7 December 2022 that reveal or tend to reveal: the appellant's status as a police informant; the fact that he provided assistance to police; or the nature and extent of that assistance. This order applies for 30 years from 19 April 2023 and throughout the Commonwealth of Australia.
  • The appellant is to be identified in connection with the proceedings by the pseudonym "AXR," pursuant to the Court's inherent jurisdiction.
  • No publication of: the appellant's affidavit sworn 14 October 2022; the contents of the non-publication application to the extent they reveal the matters sought to be protected; and the appellant's written submissions dated 20 December 2022. This order also applies for 30 years from 19 April 2023 and throughout the Commonwealth of Australia.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a non-publication order may be justified on two independent grounds under the Court Suppression and Non-publication Orders Act 2010 (NSW): protection of personal safety (s 8(1)(c)) and the public interest in maintaining police informant confidentiality outweighing open justice (s 8(1)(e)).
  • A 30-year non-publication order was held to be no longer than reasonably necessary, within the meaning of s 12(2) of the Act, where the subject matter involved an informant's ongoing safety risk.
  • Nationwide application of a non-publication order is available where confining it to New South Wales would fail to achieve its protective purpose.
  • In dismissing the underlying appeal, the Court's reasons necessarily canvassed the nature of the appellant's informant assistance, which itself triggered the need for the suppression regime applied in this judgment.
  • Publishing a redacted version of a judgment on JIRS as a restricted document was treated as a means of maintaining the open justice principle to the extent reasonably possible, even where significant portions must be withheld.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 12
- Firearms Act 1996 (NSW)

Cases:
- AXR (a pseudonym) v R [2022] NSWCCA 257 (the redacted underlying appeal judgment)