Batt-Rawden v CXD4 NSWSC 1247: Suppression & Non-Publication Orders

In the recent related matter of Batt-Rawden v CXD4 [2024] NSWSC 1247, the plaintiff, Mr Andrew Batt-Rawden, brought proceedings against the defendant, CXD4 (a pseudonym), in relation to sexual abuse the plaintiff suffered between 1992 and 1996 at his family home when the plaintiff was a child.  

This is an application by the defendant, by way of a Notice of Motion for an order pursuant to section 7 of the Court Suppression and Non-Publications Orders Act 2010 (“the Suppression Act”), to prohibit the publication or disclosure of the name and any other information or visual images tending to reveal the identity of, or otherwise concerning, the defendant in the proceedings or any person who is related to or living with the defendant, including his spouse and children. As well, an order is sought that a pseudonym be substituted for the name of the defendant and used in these proceedings. 

The plaintiff opposes the order, submitting that the defendant has not discharged the onus of persuading the Court that it is necessary for any suppression order to be made, and that the defendant has not discharged his burden of demonstrating that the primary objective of the administration of justice, which is to safeguard the public interest in open justice, would be maintained if such an order was made. 

The defendant drew attention to the undisputed fact that this civil claim against him includes conduct for which he was criminally charged in 2020 and for which he was convicted and sentenced by Pickering SC DCJ on 12 July 2022. At that time, the defendant was sentenced with respect to four offences of aggravated indecent assault and a number of offences relating to aggravated acts of indecency. The conduct the subject of these proceedings and the criminal proceedings occurred at a time when both the plaintiff, who was the victim, and the defendant were under the age of 18. Both fell within the definition of a child within the meaning of the Children (Criminal Proceedings) Act 1987 with the consequence that the provisions of section 15A of this Act are applicable. These provisions have the substantive effect of prohibiting the publication or broadcast of any information, being the name, any other information, picture or other material that identifies or else is likely to lead to the identification of an individual, where that person is the subject of criminal proceedings and where the person was a child at the time the offence occurred. 

In its consideration, the Court provided as follows:  

I have decided that it is necessary that an order by way of a suppression order and the imposition of a pseudonym is necessary in this case (at [15]).  

The first matter is this, that there exists a statutory prohibition by reason of s 15A of the Children (Criminal Proceedings) Act against the publication of the name and identification material with respect to anybody involved in criminal proceedings as a child. That prohibition applies, and continues to apply now and in the future, notwithstanding the termination of the criminal proceedings. It applies even after the death of the defendant (at [16]).  

I would also accept that a suppression order is necessary to avoid causing undue distress or embarrassment to the defendant who was a party in criminal proceedings which involved an offence of a sexual nature: s 8(1)(b) Suppression Act (at [20]).  

The defendant has been dismissed from his employment, in effect, as a consequence of previous publicity. He has been the subject of humiliation. He has contemplated suicide and is naturally concerned about any impact upon his young children. In my view, an order which suppresses his name and identification details is necessary to avoid causing him undue distress or embarrassment (at [21]).  

Finally, and essentially for the same reasons as I have previously articulated, it is in the public interest for the anonymity of people involved in Children’s Court proceedings, particularly of a criminal nature, be preserved and that public interest significantly outweighs the public interest in naming the defendant here as part of the principle of open justice (at [22]).  

Ultimately, on 18 September 2024, the New South Wales Supreme Court ordered as follows:  

Order, until further order, or a period of 50 years, whichever is the sooner, pursuant to s 7 of the Court Suppression and Non Publication Orders Act 2010 (NSW), that the publication of the name of the defendant and any information tending to reveal the identity of the defendant including but not limited to the identity of his spouse or children, be prohibited except as may be necessary for the proper conduct of the proceedings, upon the following grounds as set out in s 8: 

• that the order is necessary to prevent prejudice to the proper administration of justice; 
• that the order is necessary to avoid causing undue distress or embarrassment to the defendant; and/or 
• that it is otherwise necessary in the public interest for the order to be made, and that public interest significantly outweighs interest in open justice. 

Order that the order is to apply throughout the Commonwealth of Australia. 

Order, until further order, that the defendant in these proceedings: 

• be known as CXD4; 
• be described in all pleadings and other documents filed or served in the proceedings as CXD4; and 
• except as may be necessary for the proper conduct of the proceedings, be only referred to as CXD4. 

Order that the name of the proceedings be changed so that the proceedings be referred to as Andrew Batt-Rawden v CXD4. 

Order that the affidavit of Michael Hempsall dated 16.9.24 and its Exhibit, BJB-1 be placed in a sealed envelope and marked confidential, which is envelope is not to be opened without the leave of a Judge of this Court. 

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to Littles Lawyers today. 

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