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Supreme Court 16 June 2026

R v Lui (No 5)

[2026] NSWSC 672

HomicidePublic order & justice offences

Citation: R v Lui (No 5) [2026] NSWSC 672
Court: Supreme Court of New South Wales
Date: 16 June 2026
Judge: McNaughton J

Background

This decision arose from a homicide prosecution concerning the death of a young man found in a stairwell near a gaming café in Sydney's CBD in December 2022. The applicant, referred to by the pseudonym "John Henry," had been present at the scene and was himself charged with murder. After a hung jury in his own trial, he pleaded guilty to manslaughter. The Crown then called him as a critical witness in the separate murder trial of his co-accused, Pei Lui.

The jury in Lui's trial returned a verdict of guilty to manslaughter shortly after McNaughton J reserved his decision on the present application. Because the jury must have accepted the substance of John Henry's evidence to reach that verdict, John Henry's role as a cooperating witness against his former co-accused became publicly significant.

Existing non-publication orders had been in place throughout both sets of proceedings, but those orders were due to expire at the conclusion of Lui's trial. John Henry applied for a pseudonym order and continuing non-publication orders to protect his identity and that of his family going forward.

  • Whether a pseudonym and non-publication order was "necessary" under ss 8(1)(a) and 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) to protect the safety of the applicant and to prevent prejudice to the proper administration of justice.
  • Whether the "calculus of risk" test was satisfied, given there was no evidence of a current specific threat to the applicant.
  • Whether the 50-year duration of the proposed order was appropriate.
  • Whether non-publication orders should extend to the identities of the applicant's family members.

Decision

McNaughton J applied the "calculus of risk" framework endorsed by the Court of Criminal Appeal in AB (A Pseudonym) v R (No 3) (2019) and the High Court in AB (a pseudonym) v CD (a pseudonym) (2019). That framework requires a court to assess the nature, imminence, and likelihood of harm, and permits an order to be made even where the risk does not rise beyond a mere possibility, provided the prospective harm is sufficiently severe. His Honour was satisfied that the prospective harm here was very severe.

The defence submitted, correctly, that there was no evidence of any current or specific threat. However, his Honour found that the applicant's particular circumstances, including certain personal vulnerabilities and distinctive personal features not further described in the judgment, created real exposure arising from his having given critical evidence that led to a co-accused's conviction. The absence of an identified threat did not foreclose the application.

His Honour also found the order necessary under s 8(1)(a) to prevent prejudice to the proper administration of justice. Publicity of the applicant's identity could discourage other criminally involved witnesses from coming forward and giving evidence in future investigations and proceedings. This broader systemic concern provided an independent basis for the order.

As to duration, his Honour accepted the 50-year period sought. Although the risk was most acute during the applicant's parole period, it was considered necessary to extend protection well beyond that period so as to cover the applicant's active life. The court also granted orders anonymising the names of the applicant's family members.

Orders Made

  • The existing non-publication order made on 24 November 2025 in relation to both the applicant's trial and Lui's trial was revoked.
  • Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the grounds in ss 8(1)(a) and (c):
  • The applicant is to be identified in all proceedings and judgments relating to his trial (including sentencing proceedings) and the trial of Pei Lui by the pseudonym "John Henry."
  • Publication of any information tending to reveal the identity of John Henry as a party in his trial or as a witness in Lui's trial (including sentencing proceedings) is prohibited.
  • Publication of any information tending to reveal the identity of John Henry's family by connection with either trial or any evidence given in those proceedings (including sentencing) is prohibited.
  • These orders apply throughout the Commonwealth of Australia for a period of 50 years from the date of the order.

Key Takeaways

  • Under the "calculus of risk" test, a court may grant a non-publication or pseudonym order on safety grounds even where the risk of harm does not rise beyond a mere possibility, provided the prospective harm is assessed as very severe.
  • The absence of evidence of a specific, current threat to a witness does not automatically defeat an application under s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW).
  • A pseudonym order may also be necessary under s 8(1)(a) to prevent prejudice to the proper administration of justice where publication might deter other witnesses, including those who are criminally involved, from cooperating with police or giving evidence in future proceedings.
  • The 50-year duration granted here reflects the court's assessment that the need for protection extends across an applicant's active life, not merely the period of parole.
  • The word "necessary" in s 8 does not carry a narrow meaning; its content is shaped by the severity of the potential harm and the degree to which the proposed order reduces or eliminates the relevant risk.

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8

Cases
- AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 93 ALJR 321
- AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46
- Brown v R (2018) 99 NSWLR 151; [2018] NSWCCA 257
- Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69
- Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
- R v Qaumi & Ors (AVL) [2015] NSWSC 1711
- R v Strawhorn (No 2) [2006] VSC 433
- Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403