Citation: DPP (CTH) v Knox (No 2) [2025] NSWDC 106
Court: District Court of New South Wales
Date: 4 April 2025
Judge: Lerve DCJ
Background
The offender had been sentenced in March 2025 following a Commonwealth criminal matter, with reasons published (or intended for publication) on CaseLaw. After sentence was passed, the offender filed a Notice of Motion seeking a non-publication order to anonymise the published sentencing remarks, asking to be referred to only as "AA" for a period of 20 years across the Commonwealth.
The application was brought under s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), on the ground that publication of the offender's identity was necessary to protect his safety. The basis of the application was a psychiatric report from Dr Furst, which identified a risk of suicidal ideation if the offender's identity became publicly known.
The Commonwealth Director of Public Prosecutions opposed the orders. A short hearing was conducted via audiovisual link on 31 March 2025, with the parties also confirming their positions in writing at the court's request.
Legal Issues
- Whether the non-publication order was "necessary to protect the safety" of the offender under s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW)
- Which interpretive approach applies to the word "necessary" in s 8(1)(c): the "calculus of risk" approach or the "probable harm" approach
- Whether the risk of self-harm or suicide was sufficiently imminent or likely to justify overriding the principle of open justice
- Whether a 20-year duration for any such order was appropriate
Decision
His Honour applied the "calculus of risk" approach to s 8(1)(c), as confirmed by the NSW Court of Criminal Appeal in AB (a Pseudonym) v R (No 3) [2019] NSWCCA 46. Under this approach, a court assesses the nature, imminence, and degree of likelihood of harm. Where prospective harm is very severe, an order may be warranted even if the risk does not rise to a probability. The competing "probable harm" approach, which would require the applicant to show harm was more probable than not, was rejected as inconsistent with the statutory text.
Despite accepting that some ongoing risk of self-harm existed, Lerve DCJ found that the risk was not imminent. Two significant factors informed this conclusion. First, the sentencing court had already recommended the offender be placed on suicide watch. Second, his Honour had directed that Dr Furst's psychiatric report be forwarded to the Department of Corrective Services, ensuring that the relevant custodial authorities were informed of the offender's mental health needs and the psychiatrist's recommendations.
His Honour also noted that, in a custodial setting, medications are administered in daily doses, making it extremely difficult for the offender to self-administer an overdose. Taken together, these existing safeguards meant the court could not conclude that any threat to the offender was imminent, or that self-harm was likely on the material before it.
The court noted that the offender relied solely on Dr Furst's report from the sentencing hearing and tendered no additional material in support of the motion. The Crown's submission that 20 years was an excessively lengthy period, particularly given the absence of any demonstrated media interest, was also noted, though the application was refused in its entirety without the need to determine the duration question.
Orders Made
- The application for a non-publication order under s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 was refused.
Key Takeaways
- The District Court confirmed that the "calculus of risk" approach governs applications under s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010, requiring courts to weigh the nature, imminence, and likelihood of harm rather than requiring proof that harm is more probable than not.
- A risk of suicidal ideation will not automatically satisfy the s 8(1)(c) threshold: the court must be satisfied the risk is real and not adequately addressed by other existing safeguards.
- Where a sentencing court has already recommended suicide watch and forwarded a psychiatric report to the Department of Corrective Services, those measures may be sufficient to displace a finding that publication poses an imminent threat to the offender's safety.
- Open justice remains the primary objective. The Act requires non-publication to be "necessary," and courts must weigh any claimed safety risk against that foundational principle.
- Applicants seeking non-publication orders on safety grounds should be aware that existing custodial protections and the absence of demonstrated media interest are relevant factors in the court's assessment of whether the order is truly necessary.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8(1)(c)
- Crimes Act 1900 (NSW), Division 10 of Part 3
- Interpretation Act 1987 (NSW), s 33
Cases
- AB (a Pseudonym) v R (No 3) [2019] NSWCCA 46
- AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6
- Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (cited within AB v R (No 3))
- Hamzy v R [2013] NSWCCA 156
- Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36