R v AB (A Pseudonym) (No. 4) [2022] NSWDC 17

District Court New South Wales

Medium Neutral Citation: R v AB (A Pseudonym) (No. 4) [2022] NSWDC 17 Hearing dates: 11 February 2022 Date of orders: 11 February 2022 Decision date: 11 February 2022 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 61 Catchwords: Criminal procedure - pseudonym and non-publication orders - application for review Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW) ss 8, 13 Crimes Act 1900 (NSW) s 97 Cases Cited: Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 D1 v P1 [2012] NSWCA 314 JB v R [2019] NSWCCA 48 R v AB (A pseudonym) [2021] NSWDC 173 R v AB (A pseudonym) (No.3) [2021] NSWDC 482 R v AB (A pseudonym)(No.2) [2021] NSWDC 175 Telstra Corporation Ltd v NBN Co Ltd [2014] NSWSC 940 Texts Cited: Nil Category: Procedural rulings Parties: Nationwide News Pty Ltd (Applicant) AB (Offender) Representation: Counsel: Mr D Sibtain for the Applicant Ms M Avenell SC for the Offender

Solicitors: Ashurst for the Applicant Legal Aid NSW for the Offender File Number(s): 2020/00086187 Publication restriction: Non Publication Order with respect to the name of the complainant or any information that may identify AB.

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION 1. On 11 May 2021, I made pseudonym and non-publication orders (the 'orders') prior to hearing a sentencing proceeding in the District Court at Gosford. Both orders related to the identity of the offender ('AB') in the sentencing proceeding [1] . The orders were made on AB's application after publication of newspaper articles relating to the sentencing proceeding, over the opposition of Nationwide News Pty Ltd (the 'publisher'). Order 3 made on 11 May 2021 identified that the ground for the pseudonym and non-publication orders was that the orders were "necessary to protect the safety of any person", under s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the 'Act'). 2. Sentencing remarks were published on Caselaw on 13 May 2021 [2] . Reference was made in those remarks, amongst other things, to AB's diagnoses of PTSD, bi-polar disorder and ADHD and consideration was given in those remarks to the connection between those mental health disorders and the offending. AB was sentenced to a term of imprisonment of 2 years, to be served by intensive correction. 3. On 10 September 2021, the orders were varied, on the publisher's application, so as to permit it confined access to a (redacted version of) report prepared by a forensic psychologist, Ms Sarah Brann (dated 18 February 2021), which had been referred to in the reasons for decision for the orders [3] . This application for variation followed the publisher's complaint that it had not had prior access to Ms Brann's report and therefore could not make submissions regarding the content of that report prior to the orders being made. 4. By a notice of motion filed on 13 December 2021, the publisher now applies for review and seeks the revocation of the orders made on 11 May 2021. AB opposes the application. 5. As was position at the time AB applied for the orders, the Crown did not wish to be heard on this review application.