Citation: R v Ronald Edward Medich (No. 28) [2018] NSWSC 87
Court: Supreme Court of New South Wales
Date: 9 February 2018
Judge: Bellew J
Background
The accused stood trial in the Supreme Court for the murder of Michael McGurk and the intimidation of McGurk's widow. The Crown's principal witness was a man already serving a prison sentence after pleading guilty to his own role in that same murder.
While in custody, that witness had been charged with conspiring with others to extort money from the accused. The alleged scheme involved demanding payment from the accused in exchange for the witness agreeing to give evidence at trial in a way that would assist the accused to avoid conviction. Those charges were set down for trial in the District Court in October 2018.
During the accused's ongoing trial, the witness applied for a non-publication order under the Court Suppression and Non-Publication Orders Act 2010 (NSW). He sought to suppress any evidence he might give in cross-examination relating to those pending conspiracy charges. The application was opposed by both Fairfax Media and senior counsel for the accused. A near-identical application had been refused in the previous (aborted) trial approximately 12 months earlier.
Legal Issues
- Whether a non-publication order was "necessary to prevent prejudice to the proper administration of justice" under s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW)
- Whether the proximity of the witness's upcoming District Court trial altered the analysis from the earlier refusal
- Whether the possibility that the witness's evidence in the current trial might diverge from his earlier evidence supported granting suppression
- Whether the witness's position as a witness (as opposed to an accused) gave rise to concerns about his right to silence and presumption of innocence that warranted a non-publication order
Decision
Bellew J declined to make the order and discharged the interim non-publication order that had been put in place while judgment was reserved. His Honour reaffirmed that the word "necessary" in s 8(1)(a) carries real weight and that the primary objective of open justice, as stated in s 6 of the Act, must be kept firmly in view. The threshold is not merely that publication might cause some prejudice; it must be necessary to prevent that prejudice.
On the timing argument, the court accepted that the witness's District Court trial was closer than it had been 12 months earlier. However, with approximately eight months still to elapse, the court found that the "fade factor" (the tendency for media coverage to become less influential with the passage of time) retained sufficient force. Any media reporting would occur during the current trial, well before potential jurors would be empanelled in October 2018, and the speculative chain of reasoning required to establish actual prejudice was too attenuated to satisfy the "necessary" threshold.
On the question of jury compliance, the court applied well-established principle that juries act in accordance with directions given by trial judges, citing the Court of Criminal Appeal's observations in Hughes v R. Bellew J noted that those observations were made in a case involving far greater publicity than the present one. Finally, the suggestion that the witness might give divergent evidence was characterised as wholly speculative and insufficient to support the order, either alone or in combination with the other factors.
Orders Made
- The interim non-publication order made on 8 February 2018 was vacated.
- The application for a non-publication order was dismissed.
Key Takeaways
- The word "necessary" in s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) does not have a fixed meaning, but it imposes a genuine threshold; the mere possibility of prejudice to a pending trial is insufficient to satisfy it.
- Under s 6 of the Act, the public interest in open justice is a primary objective that courts must weigh actively against any proposed suppression or non-publication order.
- A lapse of approximately eight months between anticipated media coverage and the commencement of a related trial was considered sufficient for the "fade factor" to operate and reduce the risk of prejudice to potential jurors.
- Long-standing confidence in juries' ability to comply with judicial directions, including directions to disregard prior publicity, formed a significant part of the court's reasoning against suppression.
- Purely speculative arguments, such as the possibility that a witness might give divergent evidence in a later trial, will not meet the threshold required to justify a non-publication order.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 8(1)(a)
- Evidence Act 1995 (NSW), s 128
Cases
- Fairfax Digital Australia & New Zealand Pty Limited v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
- Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
- Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330
- John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324
- Montgomery v HM Advocate [2003] 1 AC 641
- R v McNeil [2015] NSWSC 357; 250 A Crim R 12
- R v Medich (No. 11) [2017] NSWSC 43
- Skaf v R [2008] NSWCCA 303