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Supreme Court 7 February 2023

R v Haile

[2023] NSWSC 52

Homicide
CRIMINAL PROCEDURE SUPPRESSION AND NON PUBLICATION ORDERS QUASHED VERDICT ON SAME CHARGE NATURE OF PRE TRIAL PUBLICITY

Citation: R v Haile [2023] NSWSC 52
Court: Supreme Court of New South Wales
Date: 7 February 2023
Judge: Harrison J

Background

The accused had been tried and convicted of murder in 2016, following a trial before a jury. He successfully appealed to the Court of Criminal Appeal, which quashed his conviction and ordered a new trial scheduled to commence on 13 February 2023.

The 2016 trial, sentencing, and appeal had all attracted significant media coverage. That coverage, though accurate at the time, continued to be accessible online and identified the accused as a person who had been found guilty of the murder for which he was about to be retried.

The accused applied for orders under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) requiring online media organisations to take down articles referring to his earlier conviction. The media organisations opposed the application.

  • Whether the court had power to order the removal of online articles referring to a quashed conviction in advance of a retrial
  • Whether such orders were "necessary" within the meaning of s 8(1) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), specifically to prevent prejudice to the proper administration of justice
  • Whether pre-trial publicity about a quashed conviction creates a risk of unfair trial that judicial directions to the jury cannot adequately address
  • Whether a court may account for the possibility that jurors will disobey instructions and conduct their own research when assessing the need for such orders

Decision

Harrison J refused to make the take-down orders. The applicable ground under s 8(1)(a) requires that an order be "necessary" to prevent prejudice to the proper administration of justice. Drawing on Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384, his Honour confirmed that "necessary" is a strong word. It is not satisfied merely because an order would be convenient, reasonable, or sensible. There is no balancing exercise: an order either meets the threshold of necessity or it does not.

His Honour accepted that a juror becoming aware of a previous conviction on the same charge would be a serious matter. However, the law proceeds on the footing that jurors will comply with judicial directions to decide the case only on the evidence before the court, absent specific evidence to the contrary. The High Court in The Queen v Glennon (1992) 173 CLR 592 had confirmed that the mere possibility of a juror encountering prejudicial information is inherent in any criminal trial, and a fair trial does not require jurors to be entirely ignorant of pre-trial publicity.

Harrison J also drew a distinction between the present case and the position in R v Dawson, where publicity was current and ongoing. Here, the publicity was historical. Significantly, any references to the accused's prior conviction would be accompanied by references to that conviction having been set aside. Moreover, the jury would itself know the accused was being retried for the same offence, which would carry an implicit message that the earlier verdict was a flawed result that must be disregarded.

Finally, his Honour noted the Court of Criminal Appeal's observation in Qaumi that take-down orders of this type would likely be futile in practice, given the difficulty of removing material sufficiently from the internet. That finding reinforced the conclusion that the orders were not necessary within the meaning of the Act.

Orders Made

• Publication of this judgment and of the evidence and submissions upon which it is based should be suppressed

Note: Harrison J indicated he would invite the parties to address whether publication of the judgment itself and the underlying evidence and submissions should be suppressed, consistent with an order made in the analogous Qaumi proceedings.

Key Takeaways

  • Under s 8(1) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), "necessary" sets a high threshold. An order will not satisfy that test merely because it is convenient, reasonable, or in some sense in the public interest.

  • Pre-trial publicity about a quashed conviction does not automatically cross the necessity threshold. The law assumes jurors will follow judicial directions to decide a case on the evidence before them, absent contrary evidence.

  • A distinction exists between current, ongoing prejudicial publicity and historical reporting. Where online articles referencing an earlier conviction also record that the conviction was set aside, the potential for irremediable prejudice is reduced.

  • The Court of Criminal Appeal's finding in Nationwide News Pty Ltd v Qaumi that internet take-down orders are likely to be futile in practice remains a relevant consideration when assessing whether such orders are necessary.

  • Suppression of the judgment and supporting materials may be appropriate as a separate, narrower measure, consistent with the approach taken in Qaumi, though that question was not finally resolved in this decision.

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8
- Jury Act 1977 (NSW), s 68C(1)

Cases
- Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384
- The Queen v Glennon (1992) 173 CLR 592
- Dupas v The Queen (2010) 241 CLR 237
- Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52
- Dawson v R [2021] NSWCCA 117
- R v Dawson [2020] NSWSC 1221