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Supreme Court 11 May 2022

R v Dawson

[2022] NSWSC 555

Homicide
CRIMINAL LAW MURDER TRIAL COURT SUPPRESSION AND NON PUBLICATION ORDERS ACT 2010

Citation: R v Dawson [2022] NSWSC 555
Court: Supreme Court of New South Wales
Date: 11 May 2022
Judge: Harrison J

Background

The accused stood trial in the Supreme Court on a charge of murdering his wife, who had last been seen in early 1982. The Crown alleged he killed her to pursue a relationship with a former student, identified only as JC. A separate charge of carnal knowledge relating to that same relationship was listed for trial in the District Court following the conclusion of the murder proceedings.

Both the accused and the Crown applied for a suppression order before the murder trial began. They argued that publicity generated by the Supreme Court proceedings would so damage the accused's prospects in the subsequent District Court trial that a fair jury could not realistically be empanelled.

Media organisations intervened to oppose the application. They were represented by counsel and filed affidavit evidence addressing the extent of existing public material about the case.

  • Whether a suppression order covering all evidence and submissions in the murder trial was available under s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW)
  • Whether granting such an order was "necessary" to prevent prejudice to the proper administration of justice, or "otherwise necessary" in the public interest
  • Whether the relevant public interest significantly outweighed the public interest in open justice
  • Whether the practical futility of a suppression order, given the volume of existing online material, was relevant to the statutory "necessary" test

Decision

Harrison J refused both applications on 9 May 2022 and delivered reasons on 11 May 2022. The court accepted that the accused held a genuine and legitimate interest in receiving a fair trial in the District Court, and that the evidence to be led in the murder trial, including JC's testimony, would also feature centrally in the carnal knowledge proceedings. Despite this, the court was not persuaded that a suppression order met the statutory threshold.

The court's central finding turned on the meaning of "necessary" under the Act. Drawing on Rinehart v Welker (2011) 93 NSWLR 311, the court held that an order is not necessary merely because it is convenient, reasonable, or sensible, or because it serves some notion of the public interest following a balancing exercise. Something that will have no practical consequence cannot satisfy the necessity requirement, even if the desired outcome would be highly desirable.

On the facts, searches using the accused's name returned several million online results, much of the material unfavourable to him and entirely beyond the reach of any court order. The court found that suppressing what would amount to a less sensational version of that same material would be effectively futile. A measure that makes no practical difference cannot be characterised as "necessary."

The court also addressed, and rejected, the submission that characterising the suppression application as potentially "outrageous" advanced the analysis. That framing implicitly invited a balancing exercise between the right to a fair trial and the principle of open justice, which is not the correct statutory approach. Even accepting the weight of the accused's interest, the public interest in open justice was not "significantly outweighed" where the proposed order would achieve nothing of substance.

Orders Made

  • The applications for a suppression order were refused.

Key Takeaways

  • Under s 8 of the Court Suppression and Non-publication Orders Act 2010, a suppression order must be "necessary" to meet at least one of the statutory grounds; convenience, reasonableness, or a general balancing of competing public interests is insufficient.
  • The "otherwise necessary in the public interest" ground requires the relevant public interest to significantly outweigh the public interest in open justice, a deliberate and high statutory bar.
  • Where extensive prejudicial material already exists in the public domain and is beyond the reach of court orders, a suppression order directed at trial evidence may be rendered effectively futile, and a futile order cannot satisfy the necessity requirement.
  • Framing a suppression application in terms of a balance between the right to a fair trial and the principle of open justice does not correctly state the statutory test, even where both parties to criminal proceedings are united in seeking the order.
  • The fact that both the Crown and the accused joined in seeking suppression did not alter the analysis; the court assessed the application against the statutory criteria regardless of the alignment of the parties.

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 8

Cases
- Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
- Hogan v Australian Crime Commission (referenced within Rinehart v Welker)