AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46
AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46 · Read the judgment on AustLII
Catchwords: Suppression and non-publication orders – risk of harm to the applicant – misreporting by the media
The Court of Criminal Appeal (‘CCA’) has held that, in considering whether to make a non-publication order under the Court Suppression and Non-Publication Orders Act 2010 on the basis that a person might suffer harm, the correct approach is one of the ‘calculus of risk’. Additionally, it found that the concept of ‘safety’ includes potential psychological harm.
The applicant was charged with sex offences dating back to the 80’s, at a time when he was between 17 (that is, notably, it commenced when he was a child) and 24 years old, relating to complainants who were respectively 7 and 9 years younger than him. The offences occurred in the context of a closed church community, where the applicant had been given no sexual education, he was left to play unsupervised with the complainants, and he offended against them. In 2017 he pleaded to a range of charges and was sentenced in June. On sentence, the Crown submitted that a full-time custodial sentence ought to be imposed, but accepted it was open to the Court to suspend the sentences. The sentencing judge duly imposed suspended sentences, and there was no Crown appeal against that decision.
About five months later a journalist from the Daily Telegraph published an article about the decision. Consistently with that publication’s preferred style, the article’s title was ‘Victims fight court secrecy. HIDE AND FREAK. EXCLUSIVE: Judge spares predator jail because of insomnia and “high cholesterol”’ (capitals in original). In the week that followed, the Daily Telegraph continued to publish articles about the applicant. Per the Court, those articles evidently included misreporting which had the effect of inciting community outrage against the applicant; amongst other things the articles insinuated that the only explanation for the suspended sentence was a conspiracy or some act of corruption. Even though he had been 17 when some of the offences occurred, so that an automatic, statutory non-publication order applied, the articles also published information sufficient to identify the applicant to anybody who knew him. This, inferentially, caused business connections to abandon him. Ray Hadley – a news source similarly not renowned for his nuanced approach to this kind of issue – concluded a show by exhorting his listeners that they should ‘name the filthy low grub at every opportunity’. An online petition was started against the applicant; it contained the kind of invective you might imagine given the subject matter and the (evidently unreliable) sources of the reports about it. The applicant was threatened. It seems an attempt was made on his life, in the sense that a wheel on his car came off whilst being driven by someone else. The threats had an impact on the applicant’s physical and mental health, and to a lesser extent that of his wife.
The court history is complicated, but while the matter bounced around the appellate court system, and was then returned to the District Court, various applications for non-publication orders were made on an interim basis, orders stayed, and other positions in between. All this eventually culminated in an application for non-publication which was refused by a District Court judge. That was the decision which was ultimately under appeal here.
The Court (Hoeben CJ at CL, Price and Adamson JJ), in a unanimous judgment, was asked to interpret provisions of the Court Suppression and Non-Publication Orders Act 2010 (‘the Act’), under which application was made here (there are some other applicable laws where children are involved, not discussed in this summary).
Previous cases discuss two different approaches to the question under s8(1)(c) of the Act, which provides that an order may be made if it is ‘necessary to protect the safety of any person’. The District Court judge had adopted an approach known as the ‘probable harm’ approach, but here the Court considered that the other approach, known as the ‘calculus of risk’ approach was in fact correct (at [58]). The calculus of risk approach provides that, whereas a less serious harm might need to be shown by an applicant to be fairly likely to occur before an order is warranted, on the other hand if the potential harm is more severe then it may be more readily concluded that the order is necessary even if the risk does not rise beyond a mere possibility (at [56]).
Additionally, the Court found in relation to the interpretation of the word ‘safety’ that nothing in the legislation limits that word to physical safety; the psychological injury to the applicant and his wife were relevant (at [59]), not least because the mental harm to the applicant had given rise to suicidal ideation and so had a real potential to affect his physical safety (at [60]).
In reconsidering the need for the order, the Court also considered s6 of the Act, which requires the Court to safeguard the public interest in open justice. After making some fairly cutting remarks about the ‘reporting’ by the Daily Telegraph (at [102] – sarcastic quotations marks in the original), the Court considered that the only relevant effect that a non-publication order would have in the present case was to prevent the further identification of the applicant and his family in connection with these proceedings, with the aim of eliminating or minimising vigilante conduct (at [103]).
In light of the recent referral to the NSW Law Reform Commission of a review of open justice in NSW, and other publicity about non-publication orders made in other States about other matters, it would seem that this area will remain in a state of flux for a while yet.