AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46

AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46

Leave was granted and the appeal allowed because the District Court erred by applying a probable harm test and by failing to consider psychological safety under s 8(1)(c). On rehearing, the Court was satisfied that if a non-publication order were not made, renewed media and social media publicity would likely recommence, causing a significant risk to AB's psychological health including suicidal ideation, jeopardising his wife's mental health, and exposing AB and his family to risks of physical harm including vigilante conduct. Applying the calculus of risk approach, the order was necessary to protect the safety of AB and AB's spouse and children, and it would not materially compromise...

Jurisdiction
Australia
Judgment Date
08 March 2019
Procedural Posture
Criminal Procedure Appeal Concerning Suppression and Non Publication Orders / Application for Leave to Appeal and Appeal Under S 14 of the Court Suppression and Non Publication Orders Act 2010 (nsw) From the District Court's Refusal to Make a Non Publication Order
Outcome
Leave to appeal granted; appeal allowed; non-publication order made protecting the identity of AB and AB's spouse and children for 20 years.
Legal Topics
['non Publication Order Protecting Identity' 'safety Under S 8(1)(c) of the Court Suppression and Non Publication Orders Act 2010 (nsw)' 'calculus of Risk Approach' 'psychological Safety and Risk of Self Harm' 'media and Social Media Publicity' 'vigilante Threats']
['criminal Procedure' 'suppression and Non Publication Orders' 'open Justice'] ['non Publication Order Protecting Identity' 'safety Under S 8(1)(c) of the Court Suppression and Non Publication Orders Act 2010 (nsw)' 'calculus of Risk Approach' 'psychological Safety and Risk of Self Harm' 'media and Social Media Publicity' 'vigilante Threats']

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Procedural Posture

Criminal Procedure Appeal Concerning Suppression and Non Publication Orders / Application for Leave to Appeal and Appeal Under S 14 of the Court Suppression and Non Publication Orders Act 2010 (nsw) From the District Court's Refusal to Make a Non Publication Order

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the District Court's refusal to make a non-publication order in respect of the applicant's identity." 'Whether the District Court misconstrued s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) by applying a probable harm test rather than a calculus of risk approach.' 'Whether s 8(1)(c) extends to psychological safety, including aggravation of a pre-existing mental condition and risk of suicide or self-harm.' "Whether, on rehearing, a non-publication order was necessary to protect the safety of AB and AB's spouse and children." "Whether the public interest in open justice or the prior publication of AB's identity meant that the order should not be made."]

Ratio Decidendi

Leave was granted and the appeal allowed because the District Court erred by applying a probable harm test and by failing to consider psychological safety under s 8(1)(c). On rehearing, the Court was satisfied that if a non-publication order were not made, renewed media and social media publicity would likely recommence, causing a significant risk to AB's psychological health including suicidal ideation, jeopardising his wife's mental health, and exposing AB and his family to risks of physical harm including vigilante conduct. Applying the calculus of risk approach, the order was necessary to protect the safety of AB and AB's spouse and children, and it would not materially compromise...

Court Disposition

Leave to appeal granted; appeal allowed; non-publication order made protecting the identity of AB and AB's spouse and children for 20 years.

Orders

  • ["Grant leave to appeal against the decision of Williams SC DCJ on 23 January 2019 to refuse to make a non-publication order in respect of the applicant's identity." 'Allow the appeal.' 'Order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the applicant be referred to by the...