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Supreme Court 16 February 2011

R v PERISH; R v LAWTON; R v PERISH

[2011] NSWSC 1102

Public order & justice offences
CRIMINAL LAW JURISDICTION PRACTICE AND PROCEDURE ARTICLES HIGHLY PREJUDICIAL TO ACCUSED RIGHT OF ACCUSED TO FAIR TRIAL JURISDICTION OF SUPREME COURT

Citation: R v Perish; R v Lawton; R v Perish [2011] NSWSC 1102
Court: Supreme Court of New South Wales
Date: 16 February 2011
Judge: Price J

Background

Three accused persons, two charged with murder and one with conspiracy to murder arising from the death of the same victim, were awaiting a joint trial in the Supreme Court. In the lead-up to jury empanelment, counsel for two of the accused made separate ex parte applications for orders requiring several major news organisations to remove specific articles from their websites.

The articles in question, all published in 2008 and 2009, were highly prejudicial. They linked the accused to numerous other murders and suspected murders under investigation by a police strike force, to bikie gangs, to amphetamine manufacturing, and to other serious offending for which the accused had not been charged or convicted. One article described a co-accused as the victim's "right hand man" who was "high in the hierarchy" of a motorcycle gang, a characterisation the Crown did not intend to advance at trial.

Price J granted the take-down orders ex parte in early February 2011. The media organisations, Nationwide News Pty Limited, News Digital Media Pty Limited, and Fairfax Media Publications Pty Limited, then filed a notice of motion seeking to have all those orders vacated and a further application by the third accused dismissed.

  • Whether the Supreme Court had jurisdiction to make orders requiring the removal of articles from commercial websites hosted by news organisations.
  • Whether the internet take-down orders were reasonably necessary to ensure the accused received a fair trial, or whether jury directions and the operation of the Jury Act 1977 were sufficient.
  • Whether the orders were futile, given the breadth of the internet and the possibility of accessing the same articles through other channels.
  • Whether the onus lay on the applicants seeking vacation of the orders, or on the accused who originally obtained them.
  • Whether the orders should be extended to cover related corporate entities within the same media groups.

Decision

Price J confirmed the court's inherent jurisdiction to control the criminal process and protect the accused's right to a fair trial, drawing on settled High Court authority including Jago v The District Court of New South Wales (1989) 168 CLR 23 and Dietrich v The Queen (1992) 177 CLR 292. His Honour accepted that this jurisdiction extends to making orders directed at ensuring the integrity of criminal proceedings, including orders addressed to third parties such as media organisations.

The media applicants argued that jury directions, the operation of s 68C of the Jury Act 1977, and the general robustness of jurors rendered the orders unnecessary. Price J acknowledged the well-established confidence placed in juries to follow directions, but rejected the proposition that this alone was sufficient to displace the court's duty to do all it reasonably could to protect jurors from unnecessary exposure to prejudicial material. His Honour drew on the Victorian Court of Appeal's reasoning in News Digital Media Pty Ltd v Mokbel [2010] VSCA 51 to the effect that confidence in juries does not mean courts should abandon their traditional protective role.

On the question of futility, Price J accepted that the orders could not eliminate all avenues of access to the offending material. However, he concluded that the immediate accessibility of the named articles by simply searching the accused persons' names on the applicants' own websites created a real and ongoing risk of prejudice. The articles were described as archival, inaccurate, and precisely identified, distinguishing the application from a broader or blanket suppression order.

His Honour dismissed the application to vacate the orders, directed that the orders be recast to run only for the duration of the trial, extended coverage to the additional articles sought by the accused Andrew Perish and Matthew Lawton, and indicated the orders should be extended to any related corporate entity within each media group's stable. The parties were given an opportunity to be heard on the width of that final extension before formal orders were made.

Orders Made

  • The application by Nationwide News Pty Limited, News Digital Media Pty Limited, and Fairfax Media Publications Pty Limited to vacate the internet take-down orders was dismissed.
  • The existing ex parte orders were to be recast, limited to the duration of the trial.
  • Additional articles relating to Andrew Perish (the Fourth arrest in Falconer murder and Couple's murder tied to Bikie death articles) were to be brought within the scope of the orders.
  • An order in the terms sought by Matthew Lawton in respect of the Three to stand trial for Falconer murder article was to be made, also limited to the duration of the trial.
  • Price J indicated the orders would be extended to cover "any related corporate entity" within each media group's corporate structure; the making of final orders was adjourned to 17 February 2011 to allow the applicants to be heard on this width.

Key Takeaways

  • The Supreme Court confirmed it possesses inherent jurisdiction to make orders requiring removal of online articles where those articles pose a real risk of prejudice to an accused's right to a fair trial, including orders directed to media organisations as third parties.
  • Confidence in jurors' ability to follow directions does not, by itself, render protective orders unnecessary; courts retain a duty to take available steps to make the jury's task easier and to reduce unnecessary exposure to prejudicial material.
  • Orders are not automatically futile merely because other internet sources may carry similar content. The precise identifiability of the articles, and their ready accessibility on the applicants' own websites through name searches, were material factors supporting necessity.
  • Where a media organisation publishes across multiple related entities or platforms, an order targeting one masthead or website may be insufficient; Price J signalled that orders should extend to related corporate entities to prevent cross-publication defeating the order's purpose.
  • The characterisation of articles as archival, inaccurate, and linking the accused to uncharged offending was significant in distinguishing the application from a general suppression order and in supporting the finding that removal was reasonably necessary.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), s 68C
- Supreme Court Act 1970 (NSW)

Cases
- Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
- General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49; (2008) 19 VR 68
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- Her Majesty's Attorney-General in and for the State of New South Wales v Time Inc Magazine Company Pty Limited [1994] NSWCA 134
- Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
- 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
- News Digital Media Pty Ltd v Antonios Sajih Mokbel [2010] VSCA 51
- Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
- R v Jamal [2008] NSWCCA 177; (2008) 72 NSWLR 258
- Riley McKay Pty Ltd v McKay (1982) 1 NSWLR 264
- State Drug Crime Commission (NSW) v Chapman (1987) 12 NSWLR 447