Supreme Court New South Wales Medium Neutral Citation: AB v Director of Public Prosecutions [2024] NSWSC 596 Hearing dates: 15 May 2024 Date of orders: 15 May 2024 Decision date: 15 May 2024 Jurisdiction: Common Law Before: Campbell J Decision: (1) Under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), a non-publication order is made over the name of the plaintiff or any information tending to identify him or members of his immediate family. (2) This order is made in respect of any written and oral submissions, evidence, or reasons for judgment in relation to this application and further proceedings in 2023/00299395 and any other proceedings based upon the matters alleged in H-80625151. (3) These orders are made on the ground that they are necessary to protect the safety of the plaintiff and his family as specified in s 8(1)(c) of the said Act. (4) The orders are to apply throughout the Commonwealth of Australia. (5) These orders are to continue until expiration of 14 days following the completion of all proceedings on the matters based upon H-80625151. (6) To give effect to these orders, the plaintiff is to be referred to, in relation to proceedings to which these orders apply, by the pseudonym AB. Catchwords: CRIMINAL PROCEDURE – suppression and non-publication orders – appeal against Local Court decision refusing non-publication order – gangland murder – lethal retribution on other co-accused resulting in death – strong temporal connection between retribution and publication of arrests – paramountcy of "open justice" – calculus of risk approach – evaluative judgment – necessity of non-publication order for genuine safety concerns Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8, 10, 14 Crimes (Appeal and Review) Act 2001 (NSW) Cases Cited: AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; 93 ALJR 321 AB (a pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 Category: Procedural rulings Parties: AB (Plaintiff) Director of Public Prosecutions (Defendant) Representation: Counsel: L Rowan (Plaintiff) N Lawrence (Solicitor) (Defendant) Solicitors: Criminal Lawyers Group (Plaintiff) Office of the Director of Public Prosecutions (Defendant) File Number(s): 2024/173373 Publication restriction: As above Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Division Date of Decision: 9 May 2024 Before: Magistrate Horan File Number(s): 2023/299395 JUDGMENT 1. By summons filed on 9 May 2024, the plaintiff appeals from an order of Magistrate Horan in the Local Court made on the same day refusing the plaintiff's application for an extension of a non-publication order made by her Honour on 30 November 2023, or for a further order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the "Act") on the ground specified in s 8(1)(c) of the Act. 2. The matter was brought on with some urgency before the then duty judge, my colleague Cavanagh J, at about 6pm on 9 May 2024 on an ex parte basis. His Honour made an interim order protecting the identity of the plaintiff under s 10 of the Act. His Honour also made further directions for bringing on the final hearing of the appeal expeditiously, listing it before me in my capacity as duty judge today. 3. Ms Rowan of learned counsel appears for the plaintiff, and Mr Lawrence, solicitor from the Office of the Director of Public Prosecutions, for the defendant. I have been greatly assisted by the material put before me by the parties and, in particular, by the written submissions of Ms Rowan. 4. This Court's jurisdiction to entertain the appeal is conferred by s 14(2) of the Act, which provides: "[t]he "appellate court" for an appeal under this section is the court to which appeals lie against final judgments or orders of the original court or, if there is no such court, the Supreme Court." 1. As is obvious, there is a bifurcated system of appeal from the Local Court in criminal matters to the District Court, and also to this court under respective provisions of the Crimes (Appeal and Review) Act 2001 (NSW). I am satisfied that I have jurisdiction to entertain the appeal either because of the branch of appeal that leads to this court or because this court is, as s 14(2) specifies, the default court for appeals in matters arising under the Act. 2. The Court's powers on an appeal are specified in s 14(5) which is in the following terms: "An appeal under this section is to be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal." 1. Ms Rowan submits that although described as an appeal by way of rehearing, the full ambit of the power to hear and dispose of the appeal rather suggests an appeal by way of a fresh hearing, or hearing de novo, and the matter was dealt with in that fashion by the Court of Criminal Appeal in AB (a pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 (Hoeben CJ at CL, Price and Adamson JJ). I have made those observations because in the urgency with which this matter was brought on for hearing, no transcript of the first instance decision made by Magistrate Horan is available. However, on the evidence before me, it can be inferred that her Honour made a non-publication order on 30 November 2023 after the plaintiff's arrest on serious charges relating to a notorious gangland murder. At the time of his arrest, the plaintiff was on bail for the very serious criminal charge of supplying a large commercial quantity of a prohibited drug for which he had been committed to trial in the District Court fixed to commence on 1 July 2024. It is evident to me from the form of the orders made by her Honour that they were based upon the ground specified in s 8(1)(a) of the Act. While her Honour prohibited the publication of any information tending to identify the plaintiff in relation to his alleged involvement in the murder, the purpose of that order was to protect the integrity of his trial for the serious drug charges rather than his safety or the safety of any other person related to or associated with him. While it remained in force, the order incidentally served to protect his personal safety even though that was not the ground upon which it was made. 2. Things changed when the plaintiff changed his plea in respect of the drug supply charges from not guilty to guilty on 29 April 2024. Given this appraisal of the ground, purpose and scope of the orders made by her Honour on 30 November 2023, those representing the plaintiff were apprehensive that the change of plea would have the effect of bringing the protection the orders incidentally afforded the plaintiff to an end. As goes without saying, there would now be no jury trial in relation to those charges and no ongoing need to protect the integrity of the administration of justice. 3. The orders of 30 November 2023 were cascading, in a sense. On one view of them, there was a seven-day extension of the orders if it became apparent that there would be no jury trial. The condition upon which that extension operated seems to have been an order for a judge alone trial. In any event, an urgent application was made to the Local Court for an extension of her Honour's orders on the ground specified in s 8(1)(c). The matter came back before Magistrate Horan on 9 May and her Honour refused the orders. 4. While as I have said I do not have her Honour's reasons, it is apparent to me that the basis upon which her Honour probably refused an extension of the orders was, as I have said, her primary concern that the orders were necessary to prevent prejudice to the proper administration of justice. I infer that she was not satisfied that the orders were necessary to protect the safety of the plaintiff or persons related to or associated with him, which is the ground upon which Ms Rowan moves. 5. As I have said, the murder charges relate to a notorious gangland killing, and currently, I am informed both from the bar table and by the evidence, there are eight co-accused including this applicant. His role in this shooting is substantially that of an accomplice before the fact, in that he is said to have been, according to the police facts which are of course untested, directly involved in the planning of the murder and in locating the victim through the use of tracking devices purchased commercially. The origin of the concern about the plaintiff's safety is that, in respect of two co-accused being persons who do not have the protection of a non-publication order, shootings have taken place directed at their family following their arrest for this alleged offending. I need not name those persons for present purposes but in one case, the brother of a co-accused was gunned down in a public street and died as a result of the gunshot wounds he received. In another case there was a drive-by shooting of the home of the co-accused from where he was arrested. In his case, footage of his arrest was apparently broadcast on television news clearly showing his home. Police were of the view that the first-mentioned case was a targeted killing and on the evidence before me investigations are continuing. Police are not prepared to disclose the stage reached in those investigations, nor are they prepared to speculate about who did the targeting or why. In that regard, the evidence put forward by the prosecution establishes that each of those co-accused had an extensive involvement in organised crime before their arrest on the murder charges; and both of them, not unlike this plaintiff, are in addition facing unrelated serious drug and firearms charges. From the evidence put before me one of the co-accused the subject of the shooting appears to be in a senior position within an organised crime network, and he has been recorded boasting about that network's capacity to exact lethal retribution on persons who double-cross them. From that evidence, it would be open to infer there may be many persons who would have a reason to retaliate against the family of those co-accused once the co-accused themselves were out of the way and secured in a correctional centre. 6. Nonetheless, Ms Rowan's case is that, in respect of the murder of the brother of the co-accused, there is a very strong temporal connection between its occurrence and the arrest and charging of the co-accused which was given much publicity due to the notoriety of the particular murder. In the case of the other more senior co-accused, the drive-by shooting was apparently some weeks after his arrest for the murder. 7. At a factual level, one can see the possibility that while these shootings came about because the perpetrators were aware that the co-accused were in custody on remand, they yet are unrelated. It might also be said that possibility does not necessarily dispose of the question of whether there is a need for the protection of this plaintiff. 8. When dealing with an application for a non-publication or suppression order, by dint of s 6 of the Act, the Court must take into account that the "primary objective of the administration of justice is to safeguard the public interest in open justice". The open justice principle is an overriding consideration. However, as the grounds for making suppression or non-publication orders specified in s 8 of the Act demonstrate, even to such an important rule there are legitimate exceptions. 9. The decision in AB v R may be taken to have settled a difference of views about the proper approach to application of the statutory language in s 8(1)(c) to the facts of a particular case. I will set out the provision: "A Court may make a suppression order or non-publication order on one or more of the following grounds- ... (c) The order is necessary to protect the safety of any person. ..." These questions related to the determination of what is "necessary" and were resolved in AB v R in the passage which is often cited at [56] to [58]. The difference of opinion was between what has been referred to as the "calculus of risk" approach, on the one hand, and the "probable harm" approach, on the other. These approaches were competing methods of giving meaning to the word "necessary" which conditions the making of a suppression or non-publication order in the different grounds specified in s 8. 1. As the phrase suggests, the "probable harm" test required an applicant for an order to prove that death threats or other significant threats of harm to him or her "would be likely to be carried out" (AB v R at [57]). The Court said: "…Under the calculus of risk approach the nature of the harm (death) would carry weight in the calculus of risk which would have the effect that it would not be necessary for the court to be satisfied that it was probable that the threats would be carried out. The fact that the possible harm was so serious would lead to the court's being satisfied under s 8(1)(c) that an order was necessary in circumstances where it could not be said to be probable that the threats would be carried out." (Original emphasis.) 1. A useful description of the application of the test is provided by Nettle J in a single-justice decision in AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; 93 ALJR 321. His Honour gave the following prosaic (his expression) example at [15]: "The criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person. And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence. To take but one, prosaic example, no one today rationally doubts that the wearing of seat belts while traveling in a motor car is necessary to protect the safety of drivers and passengers. At the same time, it is certainly not the case that, but for the wearing of a seat belt, it is more probable than not that an occupant of a moving car will suffer harm. That is not to suggest that just any risk of harm will suffice. To repeat, the provision is not concerned with trivialities. But what it is intended to convey is that, because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of "necessary to protect the safety of any person" that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable." 1. The test is not a discretionary one but a matter of an evaluative judgment by application of a legal standard. 2. As I have already said there are eight co-accused. Of them, two, including the plaintiff so far, have had the benefit of non-publication orders protecting their identity. Of the eight of them, two persons of the six not so protected have suffered lethal threat to their family or associates being made after their arrest and incarceration. I repeat, in one of those cases, the lethal threat materialised in the death of the brother of the co-accused. 3. I suppose one could try to calculate the risk arithmetically by reference to those numbers. But what is required is a qualitative approach and as the Court in AB v R and Nettle J in AB v CD contemplated, a threat of catastrophic or lethal harm is a very significant factor to weigh in the calculus of risk. It is often said in other contexts where assessment of risk is required for a legal purpose that a very small risk of catastrophic harm justifies legal intervention, including by way of, for example, an extended supervision order under high risk offender legislation. 4. I should observe there is no evidence of any actual threat having been made to this plaintiff. The origin of the concern is his perhaps natural fear of lethal consequences being visited upon his family given the two examples I have referred to. And while retribution may be exacted from persons while they are on remand, or otherwise in custody, his fear naturally extends to his family who are at liberty, and therefore more accessible to evil persons who might do them serious harm. As Nettle J said, the provision is not concerned with trivialities especially having regard to the importance of the open justice principle. Having said that, given the following interrelated considerations: the material that has been put before me; the notoriety of the particular homicide in respect of which he is charged; the notorious fact that in Sydney, organised crime networks do exact lethal retribution from those who have crossed them; and the occurrence of the two shootings to which I have referred, I am satisfied that the risk of harm to the plaintiff and his family extends well beyond mere speculation and is certainly not trivial. 5. While one must acknowledge that many persons would prefer that their identity were kept secret when they are charged with serious criminal matters to protect themselves or their families from the shame associated with such circumstances, I think this matter goes well beyond that consideration. I acknowledge, as Ms Rowan submitted, that the infringement on the open justice principle by the order sought is not great, although the Court must always jealously guard the full measure of open justice except in the cases specified in s 8. 6. I am satisfied that the s 8(1)(c) ground has been made out in the plaintiff's case. I acknowledge that, as Ms Rowan submitted, notwithstanding the suppression of his identity for the protection of him and his family, the prosecution will be undertaken in open court, with a number of co-accused, and it will be case-managed in that way. There is no restriction upon the press or other media reporting in that general way upon the progress of the case or evidence that is led or statements that are made in open court in respect of the matter. 7. I should add that the evidence before me is that the media took a neutral stance in relation to non-publication orders when the matter was in the Local Court and have not sought to intervene in any way as they would be entitled to do in the application before me. For that reason, I propose to make the orders sought. 8. These are my orders: 1. Under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), a non-publication order is made over the name of the plaintiff or any information tending to identify him or members of his immediate family. 2. This order is made in respect of any written and oral submissions, evidence, or reasons for judgment in relation to this application and further proceedings in 2023/00299395 and any other proceedings based upon the matters alleged in H-80625151. 3. These orders are made on the ground that they are necessary to protect the safety of the plaintiff and his family as specified in s 8(1)(c) of the said Act. 4. The orders are to apply throughout the Commonwealth of Australia. 5. These orders are to continue until expiration of 14 days following the completion of all proceedings on the matters based upon H-80625151. 6. To give effect to these orders, the plaintiff is to be referred to, in relation to proceedings to which these orders apply, by the pseudonym AB. ********** Amendments 20 May 2024 - Cover Sheet - Date of decision before Magistrate Horan amended. 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: 20 May 2024