Citation: R v Ngo, R v Dao, R v Dinh [2000] NSWSC 976 revised - 2/03/2001
Court: NSW Supreme Court, Common Law Division
Date: 7 September 2000
Judge(s): James J
Background
Three accused, referred to here as Ngo, Dao, and Dinh, each faced charges of murdering a NSW State Member of Parliament in September 1994. By the time of this application, the matter had already proceeded through two trials: one aborted mid-hearing, and a second resulting in a hung jury. Separate third trials were scheduled to begin on 29 January 2001.
The immediate trigger for this application was an affidavit sworn by Detective Superintendent Kaldas, the senior investigator on the case. That affidavit disclosed that in May 2000, the foreman of the second-trial jury had contacted him seeking a meeting. Eight jurors subsequently met with two police officers, and at that meeting the jurors raised allegations about the conduct of a fellow juror.
Shortly before this hearing, the Sydney Morning Herald's chief of staff contacted Detective Kaldas and indicated awareness of an affidavit relating to police contact with jurors from the Newman trial. The Director of Public Prosecutions moved urgently for orders suppressing publication of the relevant portions of the affidavit and of that day's court proceedings.
Legal Issues
- Whether the Supreme Court had power to make a suppression order over evidence adduced in open court, in the absence of any order closing the court
- Whether, if such a power existed, the circumstances justified its exercise
- The appropriate scope and duration of any suppression order
- Whether the court could make an order directly binding on the media or the general public
Decision
James J held that the court retained power to make a suppression order even where no order had been made closing the court. His Honour relied principally on the judgment of Mahoney JA in Attorney General of NSW v Mayas (1998) 14 NSWLR 342, which recognised that the fundamental principles of open justice and free reporting are not absolute. Those principles yield where departing from them is necessary to ensure justice is done in accordance with the law, a qualification Mahoney JA described as the "Scott qualification."
His Honour accepted that publishing even the bare fact of a meeting between police and former jurors, without any detail of what was discussed, carried a real risk of generating speculation that could prejudice a fair trial at the third hearing. On that basis, James J declined to draw any distinction between the paragraphs of the affidavit describing the fact of the meeting and those describing its contents. All of paragraphs 12 to 22 were covered by the order.
On the question of who could be bound, James J noted the doubt raised by McHugh JA in John Fairfax & Sons v The Police Tribunal (1986) 5 NSWLR 465 about whether a court order can bind the media or the general public directly. His Honour acknowledged, however, that conduct outside the court may still constitute contempt. The orders were framed accordingly, without purporting to create obligations directly binding on third parties as a matter of express order.
The suppression orders were limited in duration to 3 October 2000, the date on which the broader application (including the question of restricted public access and jury sequestration at the third trial) was listed before the likely trial judge. Legal representatives for the Crown and each accused were expressly exempted from the orders to allow preparation for that hearing.
Orders Made
- No publication of the contents of paragraphs 12 to 22 of Detective Kaldas's affidavit sworn 23 August 2000, until and including 3 October 2000 (exempting legal representatives of the Crown and accused for preparation purposes)
- No publication of the contents of any conversations referred to in paragraphs 12 to 22 of the same affidavit, until and including 3 October 2000 (same exemption applied)
- No publication of any part of the proceedings conducted on 7 September 2000, until and including 3 October 2000
Key Takeaways
- The Supreme Court confirmed it has power to make a suppression order over evidence adduced in open court even without a formal order closing the court, relying on the principle that open justice is not absolute and may yield where necessary to secure a fair trial.
- Under the "Scott qualification" as described in Attorney General of NSW v Mayas, departure from the principles of open justice and free reporting is authorised where it is necessary for justice to be done in accordance with law.
- Publishing even partial information about sensitive jury conduct, such as the bare fact of post-trial contact between jurors and police, can create a sufficient risk of prejudice to justify suppression if that disclosure could prompt harmful speculation.
- Doubt exists, following John Fairfax & Sons v The Police Tribunal, about the extent to which a NSW court can make a suppression order that directly binds media organisations or the public at large, though publication in breach of such an order may still constitute contempt.
- Where a broader suppression application is pending before the trial judge in the near term, a short-duration order limited to the date of that hearing is an appropriate way to manage interim publication risk without pre-empting the trial judge's own determinations.
Legislation and Cases Referenced
Cases:
- Attorney General of New South Wales v Mayas (1998) 14 NSWLR 342 (Mahoney JA at p 345)
- John Fairfax & Sons v The Police Tribunal (1986) 5 NSWLR 465 (McHugh JA at pp 476-477)
Legislation: No specific legislation was cited in the text provided.