District Court New South Wales Medium Neutral Citation: R v AB (A pseudonym) [2021] NSWDC 173 Hearing dates: 11 May 2021 Date of orders: 11 May 2021 Decision date: 11 May 2021 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 37 Catchwords: CRIMINAL LAW – interlocutory application pseudonym and non-publication order – whether order is necessary to protect applicant's safety – substantial commentary about offender on Facebook following publication of newspaper articles Legislation Cited: Court Suppression and Non-Publication Act 2010 (NSW) ss 6, 7, 8 Cases Cited: AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046 DRJ v Commissioner of Victims Rights [2020] NSWCA 136 Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384 Texts Cited: Nil. Category: Procedural rulings Parties: AB (Applicant) Director of Public Prosecutions (NSW) Nationwide News Pty Ltd (Respondent on the application) Representation: Counsel: Mr M Valentin for the applicant Mr M Cameron (solicitor) for the respondent Solicitor Advocate for the Director of Public Prosecutions (NSW) Solicitors: LegalAid for the applicant File Number(s): 2020/86187 Publication restriction: (1) Order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), that the applicant be referred to as "AB" until 11 May 2024. (2) Order that there be a prohibition upon the disclosure of information identifying AB, being the description of her name and location of her residential address, until 11 May 2024 (3) Orders (1) & (2) are made on the basis that it is necessary to protect the safety of the applicant. Judgment 1. The offender is before the Court for sentencing following a guilty plea to the offence of robbery in company. 2. By a notice of motion dated 20 April 2021, the offender applies for an order under the Court Suppression and Non-Publication Act 2010 (NSW) ('the Act') suppressing any information relating to her or any other person named or identified in the agreed facts, including any description of any circumstances, locations, addresses, names or descriptions of any persons. 3. In support of that application, the offender relies upon two affidavits of a solicitor employed with Legal Aid, dated 20 April 2021 and 5 May 2021. 4. The Crown has indicated that it is neutral about the application. 5. Nationwide News Pty Ltd (whom I will call 'the publisher') was granted leave to appear in opposition to the application. Although Mr Cameron, who appeared for the publisher, initially foreshadowed that he would like opportunity to adduce evidence (having only been notified of the application last Friday, 7 May 2021), ultimately he did not pursue that application with any vigour. Mr Cameron has seen the two affidavits relied upon to support the application and, this morning, was given an adjournment to consider the short written submissions of the applicant's Counsel. He then made oral submissions to the Court. 6. The facts supporting the application are of short compass. On 3 November 2020, the offender entered her plea of guilty to the offence of robbery in company at the Wyong Local Court. 7. With the assistance of her legal team, the offender reached agreement with the Crown on a number of agreed facts, which will be addressed at length in her sentencing hearing. It suffices, for present purposes, to say that she had been invited by the victim to join him for what was a sexual encounter in a motel on the Central Coast. But the offender persuaded the victim to join her for a walk along a beach. During that walk, an unidentified male came from behind and assaulted the victim. That was apparently not a co-incidence, but rather the result of an arrangement made by the offender with the unidentified male. The victim's wallet was seized and some bank and credit cards were taken. An agreed fact is that the victim had previously had one of his legs amputated. 8. On 3 November 2020, articles about the offender's entry of her plea were published in the Daily Telegraph and Central Coast Local News. 9. This press reportage of the event depicted the offender as a 'femme fatale' who had lured an amputee to the motel, for an arranged night of sex before robbing him. 10. A fair reading of the Agreed Facts suggests that the newspaper articles were unbalanced in at least three respects. First, it was the victim who asked the offender to join him in the motel for the encounter, for a fee; which she agreed to. Secondly, on the basis of the agreed facts, the offender is asking this Court to sentence her on the premises that she herself had been a 'victim' of unsolicited messages of the 'sexting' kind from the victim; which she took to amount to sexual harassment. It is apparent that in the sentencing hearing, she will be relying upon her assertions of the victim's conduct towards her in mitigation of her conduct. Thirdly, in the agreed facts, she stated that she unaware that the victim was an amputee. 11. It appears to me that the article conveys that the offender took advantage of the victim's physical disability and disadvantage in planning and committing the robbery. The assumption underlying that is she knew of his physical disability but went ahead with planning and committing the offence. The offender however, contests that assumption. 12. It is also apparent that at the sentencing hearing, the offender will invite the Court to find that pre-existing mental disorders that she has suffered from since the age of 12 not only have a connection with the offending, but have been exacerbated by her awareness of what has been said about her on social media. It is pertinent to observe that some of the material placed before the Court in the sentencing hearing has referred to the offender as having made multiple attempts on her life, before the subject offending. In the sentencing hearing, she will rely upon the report of a forensic psychologist who considers the past and present mental health of the offender at considerable length. That psychologist, most relevantly, has opined that media reporting of the matter has already adversely affected her mental health. 13. The two affidavits in support of the application indicate that the publicity from the newspaper articles has led to substantial commentary on social media; and in particular the 'Facebook' platform; featuring much derogatory and offensive comment about the offender. 14. In particular, in the solicitor's most recent affidavit, two abusive messages were sent directly to the applicant on Facebook. 15. The Legal Aid solicitor deposed that attempts were made to have Facebook moderate or remove some of the comments of her. But they have been unavailing. Apparently, Facebook's position is that it is not responsible for posts shared from the mainstream media. 16. Further, the publisher of the articles also disclaims any responsibility for the posts conveyed on social media. 17. Two grounds for making a suppression order or non-publication order are that: the order is necessary to protect a person's safety (s 8(1)(c)); and, alternatively, it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice (s 8(1)(e)). These were the two grounds relied upon in the application. 18. Before such order can be made, however, the Court must take into account that it is a primary objective in the administration of justice to safeguard the public interest in open justice (s 6). 19. As indicated, the Crown takes no view of the present application. Principles 1. An order under s 8 may only be made in exceptional circumstances. It will not suffice that the order is convenient, reasonable or sensible, or serves some general notion of public interest: Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384 at [22], [24]. 2. Further, as the legal representative for the publisher submitted, the order must have some utility. 3. "Safety", in s 8(1)(c), includes psychological safety, including the aggravation of a pre-existing mental condition: AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046 at [59]; applied in DRJ v Commissioner of Victims Rights [2020] NSWCA 136 ('DRJ') per Leeming JA (Bell P and Meagher JA agreeing) at [29]. Argument 1. Counsel for the applicant acknowledges that the Court would only make an order of the one sought if satisfied that exceptional circumstances exist. He submits that the content of the Facebook posts is such that the Court could hold that there is a reasonable concern for her safety and that the continued reporting is likely to generate further harm to the applicant; thus leading to the additional concern about the effect of press reporting on public confidence in the criminal justice system. 2. Mr Cameron, appearing for the publisher, argued that there had already been extensive coverage on the internet relating to the case. That would make the order futile: the 'horse had already bolted'. He argued, essentially, that by the nature of her offending, the applicant brought the social media posts upon herself and it is not the Court's role to act as something of a protector of her sensibilities. Consideration 1. I acknowledge the public interest in open justice and that a primary objective of the administration of justice is to safeguard that interest. 2. The media plays an important role in transmitting information about Court proceedings for the benefit of the community. It has a role to inform and contribute to public debate. It is not for nothing that it is known as the 'Fourth Estate'. It is very powerful. Its commentary of what goes on in Courts can, at its best, lead to law reform. It plays a vital role in assisting the public to have confidence in what occurs in Courtrooms. 3. Sometimes however, information it transmits is unfair to those affected by it, because of inaccuracies. It is not necessary to express a view whether that is deliberate or not, or, if inaccuracies are expressed, what, if any, motives might be had on the part of the publisher. 4. It appears to me, with respect, that the commentary in the newspaper articles was unbalanced in the ways that I have indicated. Further, I find a connection between the unbalanced commentary and the social media posts that followed. 5. On the basis of the material compiled, the inaccurate media articles have led to a series of venomous, if not vicious, posts regarding the offender. 6. The circumstance that publisher, before this Court, disclaimed any responsibility for the social media posts is, in my view relevant to the question whether, if left unrestrained, it would likely provide further balanced commentary. In this respect, the Court is concerned with the unwillingness of the publisher, through its legal representative, to even accept that the articles published conveyed the matters that I have referred to. That being so, whilst acknowledging the importance of the public interest in open justice, there is, in my view, a serious risk that further press reporting of the case, or at least identification of the offender, will exacerbate the social media commentary that has already distressed the offender, a person with identified mental disorders. I take into account the evidence of the offender's psychologist that has already indicated the mental harm she has suffered as a result of the Facebook posts. 7. I do not accept that to make the order is futile, in view of earlier publicity; or the circumstance that no application is brought for a 'takedown' order. On the contrary, I consider there is a real risk that publication of the applicant's identity, in conjunction with reporting of the sentence to be imposed upon her, is likely to generate further Facebook 'commentary' which is likely to augment the distress associated with posts which followed the earlier publicity. 8. I do not accept Mr Cameron's argument that the applicant, by her admitted offending, has brought on the abuse and vilification she has sustained as a basis for rejecting the application. That would logically mean that any accused person who pleads guilty to an offence would be fair game for any reporting, irrespective of how accurate it may be, and the responses of social media thereafter. It should be plain to publishers that an admission of guilt may be made for all sorts of reasons and that the culpability of the offender can only be properly understood and be the subject of fair commentary in the light of a fair sentencing hearing. 9. This is not, as Mr Cameron suggested, the Court trying to act as moral guardian towards what his client wishes to publish. In the absence of any application for takedown, I accept that damage has been sustained by the applicant which is ineradicable. But that says nothing about the damage that further reporting of the sentencing may give rise to. Further, in circumstances where the publisher has, in my view, erroneously denied any linkage between the earlier coverage and the ensuring social media coverage, the risk of further psychological harm to the applicant is sufficiently serious to engage the protection referred to in s 8(1)(c) of the Act. 10. I am satisfied that it is in the public interest for the order to be made. For the purposes of s 8(2) that order is made on the basis that it is necessary to protect the safety of the offender as applicant. 11. In terms of its duration, I have in mind an order that extends beyond the sentence which I impose to the date when the offender's rights of appeal against such sentence are exhausted. I estimate that this should take no longer than 3 years. The importance of specificity in the duration of the order was emphasised in DRJ at [46]-[50]. 12. I have also considered the scope of the order. The essence of the restraint is, as order 1 in the motion envisages, upon publication of information which identifies the offender. I do not think it is necessary that the restraint should extend to other persons identified in the statement of facts. I accept the submission of Counsel for the applicant that it is enough to withhold publication of the name and address of the applicant. 13. I make the following orders: 1. Order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), that the applicant be referred to as "AB" until 11 May 2024. 2. Order that there be a prohibition upon the disclosure of information identifying AB, being the description of her name and location of her residential address, until 11 May 2024. 3. Orders (1) & (2) are made on the basis that it is necessary to protect the safety of the applicant. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2021