Citation: R v Perish; R v Lawton; R v Perish [2011] NSWSC 1101
Court: Supreme Court of New South Wales
Date: 11 July 2011
Judge: Price J
Background
Three accused, Anthony Perish, Matthew Lawton and Andrew Perish, were charged with murder and conspiracy to murder and were about to stand trial together in the Supreme Court. In anticipation of jury empanelment, the accused brought motions seeking internet take-down orders against Fairfax Media Publications Pty Limited, the publisher of the Sydney Morning Herald website.
The motions targeted three articles. Two of them, published on 17 and 18 February 2011, reported on Price J's earlier take-down orders and criticised those orders as ineffective and an unwarranted restriction on free speech. A third article, dated 6 August 2010, linked one of the accused to a range of uncharged criminal conduct.
The respondent, Fairfax Media Publications Pty Limited, opposed removal of the February 2011 articles on the basis that they were reports of open-court proceedings and that the test for necessity had not been met. The Crown neither consented nor opposed, but informed the court of its position.
Legal Issues
- Whether the court was satisfied to a high degree of certainty that removing the February 2011 articles was necessary to ensure a fair trial, applying the test under the Court Suppression and Non-publication Orders Act 2010
- Whether articles criticising prior take-down orders, rather than containing inherently prejudicial content about the accused, could satisfy the necessity threshold
- Whether the 2010 article linking an accused to uncharged crimes warranted a take-down order
- Whether a non-publication order should cover the motions themselves and this judgment during the trial
Decision
Price J ordered the removal of the August 2010 article because it associated Anthony Perish with crimes for which he had not been charged. Consistent with his earlier judgment of 16 February 2011, his Honour found this highly prejudicial material met the necessity test and warranted an immediate take-down order.
The February 2011 articles presented a different question. The respondent argued that the articles were reports of open-court proceedings, reflecting genuine competing views about free speech and fair trial protections, and that their removal would require the court to assume jurors would defy trial directions. Price J accepted that argument in substance. The applicable test, drawn from John Fairfax Publications Pty Ltd v District Court of New South Wales and Attorney-General for New South Wales v Nationwide News Pty Ltd, requires the court to be satisfied to a high degree of certainty, not merely on a standard of reasonableness, that removal is necessary.
His Honour held that the court must proceed on the assumption that jurors will comply with trial directions. The possibility that a juror might inadvertently encounter the articles, or that a third party might share them, did not rise to the level of necessity required to justify suppression. The objective of a fair trial could be achieved through appropriate jury directions. Accordingly, Matthew Lawton's motion was dismissed.
A separate concern arose from the proceedings themselves. Because reporting on the motions and the judgment would constitute fresh news not covered by existing trial directions, Price J was satisfied to a high degree of certainty that a non-publication order over the motions, the evidence, the arguments and the judgment was necessary to prevent prejudice to the proper administration of justice during the trial.
Orders Made
- The article "Men accused over drug dealer's murder" (Sydney Morning Herald, 6 August 2010) was ordered to be immediately removed from the SMH website and any website under the control of Fairfax Media Publications Pty Limited in New South Wales, and not republished online until after the verdict in the matter of R v Anthony Perish or further order.
- The motion of Matthew Lawton was dismissed.
- The evidence, argument and judgment in these motions were ordered not to be published until after the trial and verdicts in all three matters, R v Anthony Perish, R v Matthew Lawton and R v Andrew Perish, or further order.
Key Takeaways
- The necessity test for suppression and non-publication orders under the Court Suppression and Non-publication Orders Act 2010 requires the court to be satisfied to a high degree of certainty, not merely on a standard of reasonableness, that the order is necessary to ensure a fair trial or prevent prejudice to the administration of justice.
- Courts must proceed on the assumption that jurors will accept and comply with trial directions; speculative concerns about inadvertent exposure or third-party communication are insufficient to satisfy the necessity threshold.
- Articles reporting on, and criticising, prior take-down orders fall into a different category from historically prejudicial articles about uncharged conduct, and the former do not automatically meet the standard required for removal.
- Highly prejudicial material associating an accused with uncharged crimes can satisfy the necessity test and justify a take-down order, consistent with the approach taken in earlier proceedings in the same trial.
- Fresh reporting on suppression-related motions may itself warrant a non-publication order because such reports constitute new material not captured by existing jury directions, and their publication during a trial could undermine the administration of justice.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW)
Cases
- BUSB v R [2011] NSWCCA 3
- Attorney-General for New South Wales v Nationwide News Pty Ltd [2007] NSWCCA 307; (2007) 73 NSWLR 635
- John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344
- John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
- R v Yuill (1993) 69 A Crim R 450