Citation: R v Chandler (No. 1) [2017] NSWSC 1565
Court: Supreme Court of New South Wales
Date: 20 October 2017
Judge: Johnson J
Background
The offender pleaded guilty in the Supreme Court to the manslaughter of a young child, who died on 8 January 2015 at Constitution Hill, New South Wales. The Crown case was that at the time of her death, police were pursuing the offender in connection with a series of armed robbery charges. This created an inextricable factual link between the two sets of proceedings.
The armed robbery charges were listed for trial by jury in the District Court commencing 29 January 2018. An earlier attempt to try those matters had already been aborted mid-trial after publicity surrounding the parallel manslaughter prosecution caused the jury to be discharged.
When the offender entered his guilty plea to manslaughter, his legal representatives applied for a non-publication order to prevent the plea from reaching prospective jurors ahead of the rescheduled armed robbery trial.
Legal Issues
- Whether a non-publication order was necessary under the Court Suppression and Non-publication Orders Act 2010 to prevent prejudice to the proper administration of justice in the upcoming armed robbery jury trial.
- What geographic scope the order should carry, given the reach of electronic media across state boundaries.
- How the open justice principle should be balanced against the accused's right to a fair jury trial in the District Court proceedings.
Decision
Johnson J was satisfied that a non-publication order was both warranted and necessary. Publication of the guilty plea to manslaughter would be likely to reach prospective jurors and would inevitably prejudice a fair trial on the armed robbery counts. The earlier jury discharge demonstrated that this was not a speculative risk.
The court considered the open justice principle but found that the interests of the proper administration of justice outweighed the general presumption in favour of publication, at least on a temporary basis. The sentencing proceedings themselves would continue, with the sentencing hearing adjourned to 23 November 2017, but nothing from those proceedings could be published until after the armed robbery verdicts were returned.
On geographic scope, Johnson J declined to limit the order to New South Wales alone. Because interstate electronic media is readily accessible within New South Wales, confining the order to one state would not adequately protect against the risk of juror exposure. The order was accordingly extended to operate throughout the Commonwealth of Australia.
The order was expressly described as temporary. It was to remain in force only until verdicts were returned in the armed robbery trial scheduled for early 2018, at which point the court anticipated lifting the suppression.
Orders Made
- A non-publication order made under the Court Suppression and Non-publication Orders Act 2010 prohibiting publication of the fact that the offender had pleaded guilty to the manslaughter of the deceased.
- The order to operate throughout the Commonwealth of Australia.
- The order to remain in force until further order of the Court, with the expectation it would be lifted upon the return of verdicts in the District Court armed robbery trial.
- The sentencing hearing adjourned to 23 November 2017.
Key Takeaways
- Under the Court Suppression and Non-publication Orders Act 2010, a non-publication order may be granted where publication of guilty plea proceedings would be likely to prejudice a fair jury trial in separate but factually linked proceedings.
- The open justice principle does not operate as an absolute bar to suppression orders; it must be weighed against the competing public interest in ensuring the proper administration of justice, including the integrity of jury trials.
- Where two sets of criminal proceedings are factually interrelated, the risk of prejudice flowing from publication in one proceeding to a pending jury trial in the other is a recognised basis for temporary suppression.
- Geographic scope is a material consideration: the Supreme Court extended the order Australia-wide, finding that limiting it to New South Wales would be insufficient given that interstate electronic media is accessible within the state.
- Non-publication orders of this kind are not permanent by nature; this order was calibrated to expire automatically upon the completion of the connected trial, reflecting that suppression should extend no further than necessity requires.
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), particularly ss 7 and 8
Cases:
- No cases were cited in the judgment text.