AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 27 November 2017

R v Agius; R v Castagna (No 1)

[2017] NSWSC 1863

Fraud & dishonestyPublic order & justice offences
SUPPRESSION ORDER ORDER NOT OPPOSED HELD

Citation: R v Agius; R v Castagna (No 1) [2017] NSWSC 1863
Court: Supreme Court of New South Wales
Date: 27 November 2017
Judge(s): Adamson J

Background

Two co-accused, referred to here by their roles as the first and second accused, faced an imminent jury trial on charges of conspiracy to defraud the Commonwealth. Prior to trial, the second accused brought a motion seeking a court order requiring that various online articles concerning both accused be removed from the internet in New South Wales. The motion was not opposed by the other parties.

The application was supported by two affidavits. One identified the specific articles and their contents. The other, filed on behalf of the Commonwealth Director of Public Prosecutions, set out the steps already taken to remove relevant material from websites within that office's control.

  • Whether the court should make a "take-down" order under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) requiring removal of internet articles about the accused pending the conclusion of their trial.
  • Whether making such an order was necessary to prevent prejudice to the proper administration of justice under s 8(1)(a) of that Act.
  • Whether the proposed duration of the order (until the conclusion of the trial or until further order) satisfied the requirement in s 12 of the Act that an order operate no longer than reasonably necessary.

Decision

Adamson J granted the take-down order in terms of the short minutes of order provided by counsel for the second accused. Her Honour was satisfied, on the basis of the affidavit evidence, that making the order was appropriate in respect of each article identified.

The order was made on the ground that it was necessary to prevent prejudice to the proper administration of justice (s 8(1)(a)). Her Honour noted that, while firm jury directions about not conducting internet searches would be given, it was nonetheless desirable to afford the accused and the fairness of their trial as much protection as possible given the imminence of the jury trial.

On the question of duration, Adamson J was satisfied that an order operating until the conclusion of the trial or until further order met the requirements of s 12 of the Act. That section obliges the court to specify the period of operation and to ensure the order runs no longer than reasonably necessary to achieve its purpose.

Orders Made

  • A take-down order made under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), requiring that the specified internet articles concerning the two accused be removed from the internet in New South Wales.
  • The order to operate until the conclusion of the trial or until further order.
  • Orders made in terms of the short minutes of order initialled and dated by Adamson J and placed with the papers.

Key Takeaways

  • The Supreme Court confirmed that a take-down order requiring removal of internet articles can be granted under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) where such an order is necessary to prevent prejudice to the proper administration of justice.
  • Under s 8(1)(a) of the Act, the existence of an imminent jury trial and the risk that jurors may encounter prejudicial online material constitutes sufficient basis for the necessity finding, even where the court intends to give firm directions against juror internet research.
  • An order framed to last until the conclusion of the trial "or until further order" satisfies the requirement in s 12 that the order operate no longer than reasonably necessary, at least in the context of an imminent trial.
  • The fact that the prosecution had already taken voluntary steps to remove relevant material from websites under its own control was noted by the court as part of the evidential picture supporting the application.
  • Absence of opposition from the other parties did not of itself determine the outcome; the court conducted its own assessment of the affidavit evidence and the statutory grounds before granting the order.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8(1)(a), 12

Cases cited: None cited in the judgment.