Darren Brown (a pseudonym) v R (No 2)

1. [1]

   THE COURT: On 21 November 2018, the Court published its principal decision in this matter and made the following orders:

   1. (1)

      Application for leave to appeal granted.

   2. (2)

      Appeal allowed.

   3. (3)

      Matter remitted to the District Court for re-sentence.

   4. (4)

      Vary the order made in relation to the confidential affidavit on the file so that the sealed envelope may be opened by order of a judge of the District Court.

2. [2]

   The matter had been heard by the District Court on 6 June 2016 and a sentence judgment delivered on 10 June 2016 containing the name of the appellant and all relevant details of his crimes. No application was made by any party for suppression orders or pseudonym orders in the District Court. That judgment was not, however, made available on the internet.

3. [3]

   The appeal was heard by this Court on 26 September 2018. No application was made by any party to close the Court or for suppression orders or pseudonym orders. In accordance with the usual practice of the Court the judgment of the Court of Criminal Appeal was published electronically on the NSW Caselaw website (Caselaw) on the day it was handed down, 21 November 2018. The judgment, once published, was re-published widely in electronic form.

4. [4]

   On 28 November 2018, the Court was informed for the first time (by email to the chambers of the presiding judge) that orders may be sought by the parties in the nature of suppression orders and/or pseudonym orders.

5. [5]

   On 18 December 2018, the Court was informed (by email to the chambers of the presiding judge) that the parties proposed to make a “joint application” to redact parts of the already published judgment. On 19 December 2018, the Court removed the judgment from Caselaw and took steps to ensure that sites that re-publish judgments of the Court also take the judgment down. Orders were made for the filing of a motion, supporting evidence and submissions.

6. [6]

   On 25 January 2019, a notice of motion was filed by the appellant seeking the following orders:

   1. (1)

      that pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) and upon the grounds referred to in s 8(1)(b) of the Act, that there be no publication of information which:

   2. (2)

      that pursuant to s 7 of the Act, there be no publication of the un-redacted version of the judgment dated 21 November 2018.

7. [7]

   On 25 January 2019, the appellant filed an affidavit of the appellant’s solicitor, Ms van der Velde, sworn that day, annexing a version of the judgment marked with proposed redactions. The only matter of significance in that affidavit was that the appellant had expressed concern to Ms van der Velde for his safety and the safety of his family if the judgment remained on the internet.

8. [8]

   On 30 January 2019, Mr Singleton, then counsel for the NSW Police, filed submissions and an affidavit of an Assistant Commissioner of Police, Mr Corboy, sworn that day.

9. [9]

   On 31 January 2019, the appellant was resentenced in the District Court. Culver DCJ made the following orders, which were entered on JusticeLink:

10. [10]

    Although nothing turns on it, it appears that her Honour actually made orders in handwriting as follows:

11. [11]

    The notice of motion her Honour referred to in order (3) was dated 31 January 2019 and provided:

12. [12]

    It will be necessary to return to these orders as, unless amended or set aside, they plainly affect the subject matter of this application, namely the further publication of this Court’s decision.

13. [13]

    It was submitted on behalf of the NSW Police that the “police were neither present nor represented when this matter was before this Court”. Whilst strictly correct, that statement is misleading by omission. The NSW Police were plainly aware of the appellant’s original sentencing hearing; the information described in our principal judgment contained a statement from a senior police officer. No suppression orders or pseudonym orders were sought at that hearing. Increasingly, sentencing judgments of the District Court are published on Caselaw. This enhances both transparency and access to justice. District Court judges in the discharge of their important functions are entitled to rely upon the parties, and the NSW Police, to make any application for a pseudonym order or the suppression of evidence prior to or at a hearing. In the present case the sentencing judge did not receive the help his Honour was entitled to expect from the parties or the NSW Police.

14. [14]

    This Court on any appeal also relies upon the parties (and we include investigating officials in this description) to make any application for a pseudonym order or the suppression of evidence prior to or at a hearing. If the police harbour concerns, including any concern about the safety of a person in the criminal justice system, it is incumbent upon the police to communicate those concerns to those who appear in this Court, being the appellant’s legal representatives and legal representatives of the Crown. It is highly desirable that the Director of Public Prosecutions and the NSW Police establish a system to ensure that what occurred in this case does not happen again. The present highly sensitive approach by the NSW Police to disclosure, after all that has gone before, is to be contrasted with the absence of any expressed concerns at the time of the sentencing hearing or the hearing of the appeal.

15. [15]

    In the present application, the NSW Police relied upon two alternative versions of the principal judgment with redactions and an explanatory note about the redactions. The first was a version heavily redacted to remove material. The second removed a more limited subset of material and suggested the adoption of a pseudonym. On 15 March 2019, at the hearing of the motion, leave was granted to the appellant to file an amended motion which relied instead upon subs 8(1)(a),(c) and (e) of the Court Suppression and Non-publication Orders Act in prayer 1. The NSW Police also provided an updated version of the original judgment containing the redactions sought. The appellant essentially supported the position of the NSW Police. The Crown neither joined in, nor opposed, the application.

Submissions of the parties

1. [16]

   The appellant adopted the submissions of the NSW Police but made no substantive submission in support of the orders sought. The appellant’s representatives pointed out that until contacted by the Crown at the urging of the police after the judgment had been published, they were not aware of any safety concerns based on the judgment.

2. [17]

   The principal submissions in support of making orders were made by counsel for the NSW Police. Counsel submitted that it was necessary for the Court to make orders for some restriction on publication of the judgment on the grounds of subs 8(1)(a), (c) and (e) of the Act.

3. [18]

   It was submitted that orders were necessary because its publication without redaction would tend to discourage future assistance to the police “whether or not [the person the subject of the order is] harmed, but especially if harmed”. It was submitted that this case involved “great potential danger” to the appellant and that harm to the appellant was a “realistic possibility”.

4. [19]

   It was submitted that the Court should exercise its jurisdiction to make orders because of the need to prevent unacceptable consequences.

5. [20]

   It was submitted that a valid claim of public interest immunity will trump the open justice principle. It was further submitted that “the informer rule” has a “paramount” position “in the spectrum of public interest immunity and that is only outweighed ‘where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence’”. The following cases were cited: R v Smith (1996) 86 A Crim R 308; R v Fandakis [2002] NSWCCA 5; Cain v Glass (No 2) (1985) 3 NSWLR 230; Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643; [2007] NSWCA 366; and AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; 93 ALJR 59.

6. [21]

   Counsel for the NSW Police submitted that “[t]hree limits should be mentioned, even though they do not defeat the present application”:

   1. (1)

      a claim of public interest immunity may be defeated if the information has already been published, however, if the publication has been limited and there would be utility in making an order, then an order can still be made;

   2. (2)

      a claim of public interest immunity will not be upheld if to do so would fundamentally undermine the justice system; and

   3. (3)

      a statute may override public interest immunity which is a common law immunity.

7. [22]

   The Crown did not make submissions on the application. It neither joined in, nor opposed, the application.

Consideration

1. [23]

   The Court Suppression and Non-publication Orders Act 2010 provides, relevantly, as follows:

2. [24]

   The questions in the present case are whether:

   1. (1)

      “the order is necessary to prevent prejudice to the proper administration of justice”;

   2. (2)

      “the order is necessary to protect the safety of any person"; and/or

   3. (3)

      “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”.

3. [25]

   In Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403, the Court made clear that s 6 of the Act records and confirms that in deciding whether to make, inter alia, a non-publication order the Court must take into account that “a primary objective of the administration of justice is to safeguard the public interest in open justice”. At [27], Bathurst CJ and McColl JA noted that this provision “reinforces the legislative intention that [orders under the Act] should only be made in exceptional circumstances”.

4. [26]

   Subsections 8(1)(a) to (e) specify a number of grounds upon which such an order can be made. All of them require that the order sought be “necessary” to protect an identified interest. The exceptional nature of the power and the high threshold imposed by “necessity” may be seen from the fact that it is not enough that it appears to the Court that the proposed order is convenient, reasonable or sensible: Rinehart at [31]; D1 v P1 [2012] NSWCA 314 at [48].

5. [27]

   Another important matter in the present case is whether the orders sought will be effective or lack utility. In D1 v P1, Bathurst CJ emphasised the need to consider the utility of making the order. His Honour noted at [52] that there had been publicity about the incident in that case which gave rise to the litigation, and further discussion of the matter would seem likely irrespective of the order made.

6. [28]

   Another important matter relevant in the present case is the delay in making the application. In Matthews v R (No 2) [2013] NSWCCA 194, between the time the Court heard argument in open court and handed down its judgment, the appellant made an application for a non-publication order that the reasons “not appear on Caselaw or other public databases”. At the time judgment was handed down, the parties were advised that the principal judgment would not appear on Caselaw until further consideration of the submission. The Court refused the application for the non-publication order at [10], because “all of the details to which this part of the application refers were extensively canvassed at the appellant’s trial which was conducted in open court”, and there was “no basis for concluding that any appreciable risk to the safety of the appellant would accrue or increase from the publication”.

7. [29]

   In Commonwealth Director of Public Prosecutions v Christian [2019] FCAFC 5, the Director sought an order that judgments delivered (in relation to a bail application and sentence hearing) be recalled and thereafter not be made available on the “open source internet”. The Director asserted that they revealed the identity of the complainant, and that the continuing publication of the judgments on the “open source internet” would cause significant embarrassment, trauma and/or psychological harm to the complainant. The Full Court dismissed the appeal. The matter had been heard in open court and no application had been made for non-publication at the time of the hearing. At [126], Flick J observed that a “belated application may remain one that seeks to ensure the proper administration of justice”, but described the belated timing of the Director’s application as one of two “disturbing undercurrents” in the proceedings.

8. [30]

   In Christian, Besanko and Robertson JJ found that the primary judge did not err in relying on Matthews v R (No 2) without taking into account other features which distinguished the two cases. Their Honours noted at [84] that in Matthews v R (No 2), as in the case before them, the trial had been conducted in open court, and that here the judgments had also been available on the internet for a number of weeks. Their Honours stated:

9. [31]

   A principal theme of submissions on behalf of the NSW Police was that the continuing availability of the judgment on the internet was detrimental to the administration of justice by discouraging co-operation with the authorities. This is not, however, a case which directly engages the principle described in R v Fandakis and Cain v Glass (No 2). Those were cases where in the trial the accused sought the identity of a person who had provided information to the police for the purposes of conducting their defence. Nothing said by the High Court in AB (a pseudonym) v CD (a pseudonym) or in Commissioner of Police New South Wales v Nationwide News Pty Ltd assists in the resolution of the present question.

10. [32]

    This is a case where the information sought to be redacted was provided to the Court by the person himself and taken into account in sentencing and on appeal: ss 21A(3)(m), 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Nothing in what we have said should be thought to cast any doubt on the longstanding procedure, adopted in the present case, of providing a confidential letter about assistance to the sentencing court: R v Cartwright (1989) 17 NSWLR 243 at 257 (Hunt and Badgery-Parker JJ). The present case involves no failure of that longstanding approach. To the contrary, that part of the sentencing hearing proceeded as usual and appropriate confidentiality orders were made about the contents of the letter of assistance.

11. [33]

    It is necessary for a sentencing judge, and this Court on appeal, to provide reasons concerning an offender’s assistance to law enforcement authorities for the purpose of s 23 of the Crimes (Sentencing Procedure) Act. In Greentree v R [2018] NSWCCA 227, Beech-Jones J (Hoeben CJ at CL and McCallum J agreeing) referred at [55]-[57] to the tension which arises concerning the extent of reasons to be given with respect to assistance and any risk which could flow from those reasons. Beech-Jones J said:

12. [34]

    As the decision in Greentree v R illustrates, the issue of assistance may be addressed in judgments of this Court without the use of a pseudonym or other redactions. Where the parties wish to contend that the Court should utilise a pseudonym in the publication of a judgment where an offender has provided assistance to authorities, the issue should be raised directly by the parties with the Court so that the application can be considered on its merits and with the Court implementing the conclusion reached in the publication of reasons on sentence.

13. [35]

    In Christian, Besanko and Robertson JJ also held that the primary judge did not err by finding that the evidence provided little, if any, support that the continuing availability of the judgments was detrimental to the administration of justice by discouraging other complainants or victims from reporting offences or co-operating with the authorities. Their Honours stated:

14. [36]

    The safety of the appellant is obviously a relevant matter. In D1 v P1, Bathurst CJ (McColl JA and McClellan CJ at CL agreeing) concluded that it was not appropriate to extend an order prohibiting the disclosure of the existence or subject matter of related proceedings, as this was not necessary to protect the safety of the person said to be affected by the publication of the existence of the proceedings.

15. [37]

    There had been a debate in the cases about whether the probability of harm is a precondition to making an order. That debate has now been concluded by a recent decision of this Court in AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46. The correct approach is a “calculus of risk” approach which the Court described in the following way:

16. [38]

    Although this application has many undesirable features, in particular the gross delay in making the application, we are persuaded, applying the “calculus of risk” approach, that this is an appropriate case in which to make a pseudonym order and also to make some limited redactions of the principal judgment on the basis that a sufficiently serious potential risk to the appellant’s physical safety has been demonstrated.

17. [39]

    This is a case where the possible harm identified by Mr Corboy in the confidential affidavit is so serious that the Court is satisfied under s 8(1)(c) that a pseudonym order is necessary, although it plainly could not be said on the evidence that it is probable that the appellant’s physical safety will be harmed in the absence of an order.

18. [40]

    In addition to the pseudonym order we are persuaded that the following matters should be redacted in the Court’s original judgment:

    1. (1)

       the appellant’s actual name (the name he used in travelling to Australia was itself a pseudonym) at [4];

    2. (2)

       the name of his wife at [4];

    3. (3)

       the country which allegedly issued his false passport in the headnote and at [4];

    4. (4)

       the appellant’s continent and country of birth and the capital of that country in the headnote and at [5], [6], [15], [18(3)], [25], [28], [58], [60], [76], [89];

    5. (5)

       the appellant’s address in Sydney at [6], [59], [61]; and

    6. (6)

       the appellant’s age at [58].

19. [41]

    We reject the submission that any redactions other than those which may identify the appellant are necessary in the sense we have described. In particular:

    1. (1)

       There is no demonstrated necessity to redact the dates sought to be redacted. As emerged in argument, it is now common ground that the original sentencing judgment was never made available on the internet. In the absence of publication on the internet of the original sentencing remarks, the possibility that any internet enquiry could be made using those dates disappears.

    2. (2)

       There is no demonstrated necessity to redact the nature of the appellant’s impairment. We are not persuaded that this description makes identification of the appellant any more likely.

    3. (3)

       There is no demonstrated necessity to redact the ethnicity of the victims targeted by the appellant. We are not persuaded that this description makes identification of the appellant any more likely.

    4. (4)

       There is no demonstrated necessity to redact the appellant’s mother tongue or the fact that he asked others to translate documents for him in gaol. We are not persuaded that this description makes identification of the appellant any more likely.

    5. (5)

       There is no demonstrated necessity to redact the fact that the appellant has a wife. We are not persuaded that this description makes identification of the appellant any more likely.

    6. (6)

       There is no demonstrated necessity to redact the dates of the appellant’s offending. In the absence of publication on the internet of the original sentencing remarks, the possibility that any internet enquiry could be made using those dates disappears.

    7. (7)

       There is no demonstrated necessity to redact the fact that the appellant has two siblings. We are not persuaded that this description makes identification of the appellant any more likely.

20. [42]

    In making these findings we have considered the judgment as a whole after the redactions have been made and the pseudonym order imposed. The additional redactions sought are not necessary in the sense we have described.

21. [43]

    It remains to deal with the orders of Culver DCJ. One of the undesirable aspects of the way the parties and the NSW Police have approached this case is that her Honour was placed in the invidious position of making an order which affected the dissemination of this Court’s judgment. Another undesirable aspect of this case is that the parties and the NSW Police did not bring her Honour’s orders to this Court’s attention either before they were sought or after they were made. It was only upon searching JusticeLink records that the orders came to light.

22. [44]

    We trust that we have said enough to explain that what occurred in this case should not happen again.

23. [45]

    We make the following orders:

    1. (1)

       Set aside the suppression orders of Culver DCJ made on 31 January 2019 and in lieu thereof order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW):

    2. (2)

       Order (1) shall apply:

    3. (3)

       Order (2) is made on the ground under s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the order is necessary to protect the safety of any person, namely, Darren Brown and Darren Brown’s spouse and family.