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

[2019] NSWCCA 69

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. CRIMINAL PROCEDURE — suppression and non-publication orders — application for suppression orders and pseudonym orders — where no application made by any party to close the Court or for suppression orders or pseudonym orders at hearing — where application for suppression orders and pseudonym orders made approximately one month after the judgment was published on the internet — whether order sought is futile or ineffective
1. CRIMINAL PROCEDURE — suppression and non-publication orders — whether order necessary to protect the safety of any person — where appellant fears for his safety and his family’s safety
1. CRIMINAL PROCEDURE — suppression and non-publication orders — whether order necessary to prevent prejudice to the proper administration of justice — whether 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 — whether the continuing availability of the judgment is detrimental to the administration of justice by discouraging co-operation with the authorities — where order sought that there be no publication of information which tends to reveal assistance to law enforcement authorities
1. CRIMINAL PROCEDURE — suppression and non-publication orders — test of necessity — calculus of risk approach

Quick Take

The 'calculus of risk' approach applies to applications for pseudonym and suppression orders under s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW): where the prospective harm is very severe (such as a serious risk to physical safety), a suppression order may be necessary even though it cannot be said to be probable that harm will occur. However, applications must be made promptly — delay and prior publication are significant factors, and parties and investigating officials bear responsibility for raising suppression issues at the hearing rather than after judgment is published. The settled Cartwright procedure for dealing with confidential assistance material at sentencing remains undisturbed, and the issue of assistance may be addressed in appellate judgments without pseudonyms or redactions.