Citation: R v Rogerson; R v McNamara (No 13) [2015] NSWSC 1120
Court: Supreme Court of New South Wales
Date: 10 August 2015
Judge: Bellew J
Background
Two accused men were standing trial in the Supreme Court on serious criminal charges. Since April 2015, the court had been hearing a series of pre-trial applications involving questions of law, each dealt with in the absence of the jury. These included applications concerning the admissibility of evidence of one accused's alleged bad character, and applications by each accused for a separate trial.
On 9 August 2015, a newspaper article was published in the Sunday Telegraph under the heading "Legal Rows Continue Over Trial of Ex-Cops." The article described ongoing "legal negotiations," referred to background evidence about one accused that lawyers wanted put to the jury, and suggested the question of separate trials was still "under discussion."
The court's Media Manager had previously circulated an email to approximately one hundred media outlets, including the author of the article, expressly prohibiting publication of any application heard in the absence of the jury, the evidence and submissions in those applications, and any judgment delivered in relation to them.
Legal Issues
- Whether the published newspaper article breached existing suppression orders and the court's established prohibition on reporting proceedings conducted in the absence of the jury
- Whether the article's contents had the capacity to jeopardise the accused persons' right to a fair trial
- Whether a further, broader suppression order should be made to clarify and reinforce the existing prohibitions
Decision
Bellew J found the article to be inaccurate in several respects. The description of proceedings as "mired in legal negotiations" was inapposite: the court was determining applications, not facilitating any negotiation. The reference to lawyers wanting "background" information put to the jury was a direct, identifiable reference to pending admissibility applications concerning one accused's alleged bad character, applications that were made in the absence of the jury and subject to the existing prohibition.
The statement that the question of separate trials was "under discussion" was described as plainly incorrect. The court had already heard and determined separate trial applications. Counsel for one accused had done no more than flag a possibility of re-agitating the earlier application. Even if there had been ongoing discussion, publication of that fact remained prohibited.
His Honour noted that the contents of the article came "perilously close to constituting a contempt of Court" and had the capacity to jeopardise the accused persons' right to a fair trial. The court observed that the prohibition on publishing details of applications heard in the jury's absence is a feature of every criminal trial, not a special rule applying only to this proceeding, and expressed that no specific order should have been necessary.
Orders Made
- A suppression order was made prohibiting publication of: (a) the fact of any application made in the absence of the jury; (b) the evidence adduced in relation to any such application; and (c) the submissions of the parties in relation to any such application.
- The existing suppression orders attaching to judgments delivered in respect of applications were continued.
- The court's Media Manager was directed to disseminate the order to all media outlets.
- The judgment was directed to be forwarded to the article's author, the author's superiors, and the author's legal counsel.
Key Takeaways
- The prohibition on publishing details of applications heard in the absence of the jury applies as a matter of ordinary principle in every criminal jury trial, not only in high-profile matters or where a specific order has been made.
- A newspaper article published in apparent awareness of a court-issued media advisory still has the capacity to come "perilously close" to contempt where it discloses the subject matter of proceedings conducted in the jury's absence.
- Inaccurate reporting of in-chamber legal proceedings is not a defence to a potential contempt: the court treated the inaccuracy as an aggravating concern rather than a mitigating one, given the capacity to mislead the public about pending matters.
- The Supreme Court can and will make express suppression orders covering the fact of an application, the evidence and submissions within it, and any resulting judgment, where media reporting demonstrates that the general prohibition has not been understood or observed.
- Suppression orders made during a trial are not necessarily permanent: the court indicated the orders were expected to be revoked after verdicts were returned, subject to any submissions from the parties.
Legislation and Cases Referenced
Legislation: Not cited in the judgment text.
Cases: Not cited in the judgment text.