Citation: MA v Director of Public Prosecutions (NSW); AD v Director of Public Prosecutions (NSW) [2025] NSWCCA 54
Court: NSW Court of Criminal Appeal
Date: 14 April 2025
Judges: Bell CJ, Ward P (with whom Bell CJ agreed), Sweeney J
Background
Two accused persons (identified only as MA and AD due to their ages at the time of the alleged offending) had been charged with serious sexual offences. In 2023, the Court of Criminal Appeal dismissed their appeal from a District Court decision refusing to permanently stay their criminal proceedings. The publication of those 2023 appeal reasons was restricted to the parties and their legal advisers until the trial was completed.
In February 2025, the Office of the Director of Public Prosecutions notified the Court that the District Court trial before Gallagher DCJ had concluded, with the accused acquitted of all counts. With the notification came attention to a separate complication: the District Court had previously made suppression orders protecting the identities of two ODPP practitioners involved in the case, namely an instructing solicitor (referred to as EAJ) and a solicitor advocate (referred to as TB).
The concern was that the now-publishable 2023 appeal reasons identified those individuals by their initials. The DPP sought amendments to redact or replace those initials. The two practitioners also separately applied for suppression orders under the Court Suppression and Non-Publication Orders Act 2010 (NSW) (CSPO Act) to protect their identities in the published reasons.
Legal Issues
- Whether the Court of Criminal Appeal had power to make suppression or non-publication orders under the CSPO Act in respect of the two practitioners, given that the existing District Court suppression orders were made in relation to different proceedings before a different court
- Whether the grounds for making a suppression order under s 8 of the CSPO Act were satisfied, specifically:
- Whether an order was necessary to protect the safety of either practitioner (s 8(1)(c))
- Whether an order was necessary to avoid undue distress or embarrassment in criminal proceedings involving a sexual offence (s 8(1)(d))
- Whether the public interest significantly outweighed the public interest in open justice (s 8(1)(e))
- Whether the 2023 CCA judgment should be published without redaction or anonymisation
Decision
Ward P (with whom Bell CJ and Sweeney J agreed) dismissed all notices of motion and ordered that the 2023 appeal reasons be published without anonymisation or redaction.
On the threshold question of jurisdiction, the Court noted that the existing District Court suppression orders were made in relation to proceedings before that court and did not bind the Court of Criminal Appeal. The CSPO Act empowers a court to make suppression orders in relation to its own proceedings, not those of another court. The Court therefore considered the applications fresh, on their merits under s 8.
Turning to the instructing solicitor's application, the Court accepted that a suppression order may in principle be warranted where there is a real and substantial risk to a person's safety. However, the psychological report relied upon was prepared in June 2023 and expressed the opinion that symptoms would subside within six months once the work-related stressor was resolved. By the time of the application, that period had long elapsed. The instructing solicitor had also left the ODPP and moved interstate. The evidence supporting continued vulnerability amounted only to her solicitor's "understanding," which the Court found insufficient to establish the necessity required by s 8(1)(c).
As for the solicitor advocate, the Court acknowledged that his conduct had attracted sharp criticism from the District Court and that he had given evidence at the trial. His anxiety about public exposure of that conduct did not, however, rise to the level of "undue distress or embarrassment" within the meaning of s 8(1)(d), particularly because the impermissible witness coaching that attracted criticism could occur in any criminal proceeding and was not connected to the sexual nature of the charges. The Court also declined to find that the public interest in protecting legal practitioners involved in prosecutions was sufficient to outweigh the significant public interest in open justice under s 8(1)(e).
Orders Made
No orders were made in this decision.
Key Takeaways
- Suppression orders made by the District Court in its own proceedings do not bind the Court of Criminal Appeal, which must assess any application for suppression in its own proceedings independently and afresh under the CSPO Act.
- Under s 8(1)(c) of the CSPO Act, necessity to protect a person's safety requires more than a solicitor's assertion of a client's ongoing vulnerability, particularly where the supporting evidence is outdated and the underlying circumstances have changed materially.
- A suppression order on the ground of "undue distress or embarrassment" under s 8(1)(d) is not available merely because a witness experienced anxiety about exposure of their professional conduct; the distress must have a genuine connection to the sexual nature of the proceedings, not just to the subject matter of the witness's evidence.
- In dismissing both applications, the Court of Criminal Appeal reaffirmed that the public interest in open justice carries significant weight and that suppression orders are only appropriate where the statutory necessity threshold is clearly met.
- Where the CSPO Act authorises suppression orders in respect of a court's own proceedings, it does not on its face authorise orders that would govern or override information arising from proceedings before a different court in the hierarchy.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8, 12
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61I, 61J(1)
- Victims Rights and Support Act 2013 (NSW)
Cases
- MA v R; AD v R [2023] NSWCCA 233
- 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
- Munshizada v R; Baines v R; Danishyar v R; Hosseinishoja v R; Shekeb v R; Sultani v R; Abdaly v R [2021] NSWCCA 307
- AB (A pseudonym) v CD (a pseudonym) [2019] HCA 6
- AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46
- A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym) [2020] NSWSC 1713
- Hogan v Australian Crime Commission (2010) 240 CLR 652; [2010] HCA 21
- Commissioner of The Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5
- John Fairfax & Sons v Police Tribunal (NSW) (1986) 5 NSWLR 465
- DRJ v Commissioner of Victims Rights [2020] NSWCA 136
- Police Member 1 (a pseudonym) v Antonios Sajih Mokbel [2025] VSCA 34