Citation: MA v Director of Public Prosecutions (NSW); AD v Director of Public Prosecutions (NSW) [2025] NSWCCA 54
Court: Court of Criminal Appeal
Date: 14 April 2025
Judge(s): Bell CJ; Ward P (principal judgment); Sweeney J
Background
The underlying criminal proceedings involved two accused, MA and AD, who had been charged with serious sexual offences. Following a contested application, the District Court declined to permanently stay the prosecution. The accused appealed to the Court of Criminal Appeal, which dismissed the appeal in September 2023 in reasons that identified a solicitor advocate and an instructing solicitor by their initials. Publication of those reasons was restricted until the completion of the trial.
In February 2025, the Court was notified that the trial had concluded, with the trial judge acquitting both accused on all counts. That notification also drew attention to suppression orders made in the District Court protecting the identities of the instructing solicitor and the solicitor advocate, whose conduct during a witness conference in April 2021 had been the subject of significant judicial criticism.
Three notices of motion were then filed seeking to prevent publication of the 2023 Court of Criminal Appeal judgment in its original form: one by the Director of Public Prosecutions (seeking anonymisation to align with the District Court suppression orders), and one each by the two legal practitioners (seeking either anonymisation or formal suppression orders under the Court Suppression and Non-Publication Orders Act 2010 (NSW)).
Legal Issues
- Whether the Court of Criminal Appeal should anonymise its published 2023 judgment to give effect to, or avoid inadvertent breach of, suppression orders made in the District Court
- Whether suppression orders should be made under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) in respect of the identities of the solicitor advocate and the instructing solicitor
- Whether the grounds for a suppression order under s 8(1)(c) (protection of personal safety), s 8(1)(d) (undue distress or embarrassment in sexual proceedings), or s 8(1)(e) (public interest) were satisfied on the evidence
Decision
Issue 1: Crown's anonymisation application
Ward P dismissed the Crown's application (at [27]-[34]). The Crown argued that anonymisation was needed to prevent publication of the 2023 judgment from inadvertently rendering the District Court suppression orders ineffective. Ward P rejected this reasoning, finding that suppression orders made in the District Court are confined to the proceedings in which they are made and do not bind the Court of Criminal Appeal (at [28]-[33]). Anonymisation was therefore neither necessary nor desirable, and any reader who disclosed identifying information in breach of the District Court orders would be responsible for that breach independently of the appellate judgment's terms.
Issue 2: Suppression order under s 8(1)(c) (safety)
Ward P was not satisfied that a suppression order was necessary to protect the safety of either applicant (at [52]). In relation to the solicitor advocate, the medical evidence indicated moderate depression and high anxiety, and an increased risk of suicidal ideation if his identity were published. Ward P accepted that psychological safety falls within the concept of "safety" in s 8(1)(c), applying a calculus of risk approach. However, his Honour found that worsening anxiety and low mood did not constitute sufficiently severe harm, and that an increased risk of suicidal ideation did not indicate a real or imminent likelihood of actual self-harm, particularly given the applicant's demonstrated capacity to manage his condition through coping mechanisms (at [54]-[56]). The trial had also concluded, removing one source of his identified anxiety. As for the instructing solicitor, her position had changed markedly: she had moved interstate and left the ODPP, and the expert had opined in June 2023 that symptoms would subside within six months if the stressor resolved. The evidence put forward amounted to little more than her solicitor's "understanding" of ongoing vulnerability, which Ward P found insufficient (at [57]).
Issue 3: Grounds under s 8(1)(d) and s 8(1)(e)
Ward P disposed of these grounds briefly (at [58]). The solicitor advocate's anxiety about exposure of his conduct had no connection to the fact that the underlying proceedings involved sexual assault charges; that ground of undue distress or embarrassment applies where the distress is linked to the sexual nature of the proceedings, not to criticism of a lawyer's own conduct. On the public interest ground, Ward P accepted that protecting the wellbeing of prosecution lawyers is a legitimate interest but found it did not outweigh the significant public interest in open justice, for the same reasons that s 8(1)(c) was not satisfied.
Orders Made
- The respondent Director of Public Prosecutions' notice of motion dated 5 March 2025 is dismissed.
- The notice of motion filed 13 March 2025 by the solicitor advocate is dismissed.
- The notice of motion filed 14 March 2025 by the instructing solicitor is dismissed.
- The Court of Criminal Appeal judgment [2023] NSWCCA 233 is to be published without anonymisation or redaction.
Key Takeaways
- Suppression orders made by the District Court operate only within the proceedings in which they are made and do not bind the Court of Criminal Appeal or require that court to anonymise its own published judgments (at [28]-[33]).
- Under s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), each ground requires that a suppression order be "necessary" for the stated purpose; it is insufficient that an order would be convenient, reasonable, or sensible, or that it would serve some notion of the public interest (at [35]-[36]).
- Applying the calculus of risk approach to s 8(1)(c), an increased risk of suicidal ideation does not automatically satisfy the necessity threshold where the evidence does not establish a real or imminent likelihood of actual self-harm and the applicant has demonstrated capacity to manage symptoms through coping strategies (at [52]-[56]).
- Suppression orders are an exceptional departure from the principle of open justice, and s 6 of the Act requires courts to treat the safeguarding of open justice as a primary objective of the administration of justice (at [56]).
- The ground in s 8(1)(d) (undue distress or embarrassment in proceedings of a sexual nature) is not engaged simply because proceedings involve sexual offence charges; the distress must have a connection to the sexual nature of those proceedings rather than arising from criticism of a lawyer's own professional conduct (at [58]).
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings Act 1987 (NSW)), s 15A
- Court Suppression and Non-Publication of Orders Act 2010 (NSW), ss 7, 8
- Crimes Act 1900 (NSW), s 61
- Federal Court of Australia Act, s 50
- Victims Rights and Support Act 2013 (NSW)
Cases
- A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym) [2020] NSWSC 1713
- AB (A pseudonym) v CD (a pseudonym) [2019] HCA 6
- AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46
- Commissioner of The Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5
- DRJ v Commissioner of Victims Rights [2020] NSWCA 136
- Hogan v Australian Crime Commission (2010) 240 CLR 652; [2010] HCA 21
- John Fairfax & Sons v Police Tribunal (NSW) (1986) 5 NSWLR 465
- MA v R; AD v R [2023] NSWCCA 233
- Munshizada v R; Baines v R; Danishyar v R; Hosseinishoja v R; Shekeb v R; Sultani v R; Abdaly v R [2021] NSWCCA 307
- Police Member 1 (a pseudonym) v Antonios Sajih Mokbel [2025] VSCA 34
- R v MA; R v AD [2024] NSWCCA 69
- Sultani v R; Shekeb v R; Abdaly v R; MD v R; Baines v R; Munshizada v R; Hosseinishoja v R [2021] NSWCCA 301