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Supreme Court 17 May 2005

Regina v A, Regina v S, Regina v M

[2005] NSWSC 478

Sexual offences
CRIMINAL LAW: SEXUAL ASSAULT TRIALS BACK TO BACK SAME ACCUSED WHETHER ORDER SHOULD BE REVOKED

Citation: Regina v A, Regina v S, Regina v M [2005] NSWSC 478
Court: Supreme Court of New South Wales, Common Law Division
Date: 17 May 2005
Judge(s): Hidden J

Background

Three accused brothers faced separate but closely related sexual assault trials, each involving a young teenage complainant. All alleged offences occurred at the same address. The trials were listed to run consecutively, one immediately after the other.

Before the first trial concluded, Hidden J made an order prohibiting publication of any evidence from that trial until further order. The order was made specifically to protect the fairness of the two subsequent trials involving some of the same accused, and was intended to be temporary, expected to lift at the end of the series of trials approximately six weeks later.

The Australian Broadcasting Corporation applied to have that non-publication order revoked, arguing that the existing orders suppressing the names of the accused and complainant were sufficient protection, and that jury directions could address any residual prejudice.

  • Whether the non-publication order prohibiting publication of evidence from the first trial should be revoked
  • Whether the existing name suppression orders and jury directions were a sufficient alternative to a blanket prohibition on publishing trial evidence
  • Whether an adjournment of the subsequent trials represented a preferable means of protecting trial fairness
  • Whether the test of "necessity" for such an order, as articulated in John Fairfax Publications v The District Court, was satisfied in the circumstances

Decision

Hidden J refused the application and maintained the non-publication order. The court accepted the ABC's submissions about the fundamental importance of open justice and accurate media reporting of court proceedings, and acknowledged that the power to make such an order was not in dispute. The central question was whether the order was necessary.

Applying the test from John Fairfax Publications v The District Court, Hidden J found a very high degree of certainty that publication of the first trial's evidence would cause prejudice in the subsequent trials. The three trials shared a striking constellation of similarities: the same accused, the same location, the same general nature of the alleged conduct, and complainants of similar ages. The Crown also intended to tender evidence from the first trial as tendency or coincidence evidence in at least the second trial. In those circumstances, the court concluded it was virtually inevitable that jurors in later trials would draw impermissible connections between the published evidence and the allegations before them.

The court considered, but rejected, partial suppression of particular details such as the location of the offences, finding that approach would not adequately address the cumulative effect of the similarities. Hidden J also acknowledged the general confidence courts place in juries to follow directions, but concluded that this was one of those rare situations where the degree of potential prejudice strained that confidence to its limit.

The court declined to adjourn the subsequent trials as an alternative. The chronology of the proceedings disclosed a long and difficult history of delay, and further postponement would impose additional emotional harm on the young complainants and risk a miscarriage of justice. Hidden J distinguished this situation from the mere administrative conveniences referred to in John Fairfax, describing the interests at stake as substantially more significant.

Orders Made

  • Application by the ABC to revoke the non-publication order refused
  • Non-publication order prohibiting publication of evidence from the first trial remained in force

Key Takeaways

  • The test of necessity for a non-publication order, as articulated in John Fairfax Publications v The District Court, requires a high degree of certainty that prejudice would result and that no lesser measure could adequately protect trial fairness.
  • Where multiple related trials proceed consecutively and share a dense cluster of factual similarities, the cumulative effect of those similarities may satisfy the necessity test even where name suppression orders are already in place.
  • Jury directions, while generally sufficient to address media publicity, may not provide adequate protection where the similarities between separate trials are so marked as to make prejudicial reasoning by jurors virtually inevitable.
  • Adjournment of subsequent trials is a recognised alternative to suppression, but courts may decline to order it where delay would cause serious harm to vulnerable complainants and risk a miscarriage of justice.
  • Under s 292 of the Criminal Procedure Act 1986, the power to suppress evidence in proceedings of this kind has long been available and, as confirmed in Nationwide News v The District Court, extends to protecting the interests of an accused.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 292
- Crimes Act 1900 (NSW), s 578 (predecessor provision)

Cases:
- John Fairfax Publications v The District Court [2004] NSWCA 324
- Nationwide News v The District Court (1996) 40 NSWLR 486
- Regina v MSK and Ors [2004] NSWSC 1009
- Re K [2002] NSWCCA 374