Advertiser Newspapers Pty Ltd v Penhall

Link copied
Case Copied 82 min read

COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

ADVERTISER NEWSPAPERS PTY LTD & ORS v PENHALL

[2021] SASCA 76

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Doyle and the Honourable Justice Livesey)

10 August 2021

CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES - SUPPRESSION ORDERS

The respondent is charged with the murder of a Mr Norris.  He was convicted by a jury of this charge in November 2018, and was subsequently sentenced to life imprisonment.  However, an appeal by the respondent was successful, and his conviction was set aside.  The re-trial of this charge was scheduled to commence on 19 July 2021.

On the morning of 19 July 2021, the defendant made an application for a suppression order.  The application sought to suppress publication of material that made reference to matters including the respondent’s earlier trial and conviction, sentencing and appeal, along with any other reference to wrongdoing by the respondent, including his arrest or prosecution for any other criminal charge.  The application was intended to capture publication of material that included, inter alia, reports of the respondent’s acquittal for an earlier charge of murder in 2004. 

The respondent sought the suppression of such material until a verdict was rendered by the jury in the re-trial, and sought both an order that suppressed prospective publication of new articles referring to these matters, as well as an order taking down from the internet the existing publications referring to these matters.  The application was opposed in part by the proprietors of various News Corp Australia publications (the appellant publishers), whose opposition was confined to the take-down order.  The trial judge made orders essentially in the terms sought. 

The appellant publishers appeal the take-down order, relying essentially upon the contended ineffectiveness or futility of that order.

Held (per Doyle JA, Kourakis CJ agreeing), dismissing the appeal:

1.      The appropriateness of the take-down order made in the circumstances of the present case requires consideration of both the risk of prejudice to the fair trial of the respondent by reason of the availability of the adverse material, and the likely effectiveness of an order in reducing that risk.

2.      There was a real and significant risk of prejudice in the present case by reason of the matters in issue at the respondent’s re-trial; the seriously adverse nature of the material available on the internet; the widespread and ready accessibility of that material; the likelihood of the material coming to the attention of jurors in the absence of an order (through not only determined searching by defiant jurors, but also casual searching by misguided jurors or the family or friends of innocent jurors); and the limits to the effectiveness of the directions that might be given to the jury in addressing the risk.

3.      The Court should do what it can to reduce the risk of prejudice to an accused person’s right to a fair trial, albeit that it would not ordinarily make an order…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Advertiser Newspapers Pty Ltd v Penhall and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2021] SASCA 76
Decision Date

CaseChat Overview and Summary

Advertiser Newspapers Pty Ltd appealed a take-down order made by the trial judge, which had been sought by the respondent, Mr Penhall. Mr Penhall was facing a re-trial for murder, and his application sought to suppress publication of material referring to his prior trial, conviction, sentencing, appeal, and any other criminal charges. The appellant publishers opposed only the take-down aspect of the order, arguing it was ineffective.

The central legal issue before the Court of Appeal was whether the take-down order was appropriate, requiring consideration of both the risk of prejudice to Mr Penhall's fair trial and the likely effectiveness of the order in reducing that risk. The court had to determine if there was a real and significant risk of prejudice due to the nature of the material, its widespread accessibility on the internet, and the limitations of jury directions in mitigating such risks.

The majority of the Court of Appeal, per Doyle JA and Kourakis CJ, dismissed the appeal. They reasoned that while courts should not make futile orders, they must do what they can to reduce the risk of prejudice to an accused's right to a fair trial. In this case, the adverse material was not so embedded in the public consciousness as to render a take-down order useless. The court found a realistic prospect that the order would materially reduce the risk of jurors encountering the adverse material, and that utility was a matter of degree, focused on reducing, rather than eliminating, risk. Livesey JA, dissenting, allowed the appeal, finding that the ubiquity of personal devices meant confidence must still be placed in jurors' ability to follow directions, and that take-down orders were impractical to enforce and could not avoid the risk of exposure to adverse material.

Orders

Orders of the court

The respondent is charged with the murder of a Mr Norris. He was convicted by a jury of this charge in November 2018, and was subsequently sentenced to life imprisonment. However, an appeal by the respondent was successful, and his conviction was set aside. The re-trial of this charge was scheduled to commence on 19 July 2021.

On the morning of 19 July 2021, the defendant made an application for a suppression order. The application sought to suppress publication of material that made reference to matters including the respondent’s earlier trial and conviction, sentencing and appeal, along with any other reference to wrongdoing by the respondent, including his arrest or prosecution for any other criminal charge. The application was intended to capture publication of material that included, inter alia, reports of the respondent’s acquittal for an earlier charge of murder in 2004.

The respondent sought the suppression of such material until a verdict was rendered by the jury in the re-trial, and sought both an order that suppressed prospective publication of new articles referring to these matters, as well as an order taking down from the internet the existing publications referring to these matters. The application was opposed in part by the proprietors of various News Corp Australia publications (the appellant publishers), whose opposition was confined to the take-down order. The trial judge made orders essentially in the terms sought.

The appellant publishers appeal the take-down order, relying essentially upon the contended ineffectiveness or futility of that order.

Held (per Doyle JA, Kourakis CJ agreeing), dismissing the appeal:

1. The appropriateness of the take-down order made in the circumstances of the present case requires consideration of both the risk of prejudice to the fair trial of the respondent by reason of the availability of the adverse material, and the likely effectiveness of an order in reducing that risk.

2. There was a real and significant risk of prejudice in the present case by reason of the matters in issue at the respondent’s re-trial; the seriously adverse nature of the material available on the internet; the widespread and ready accessibility of that material; the likelihood of the material coming to the attention of jurors in the absence of an order (through not only determined searching by defiant jurors, but also casual searching by misguided jurors or the family or friends of innocent jurors); and the limits to the effectiveness of the directions that might be given to the jury in addressing the risk.

3. The Court should do what it can to reduce the risk of prejudice to an accused person’s right to a fair trial, albeit that it would not ordinarily make an order where it is clear that it will be futile.

4. This is not a case where the adverse material relating to the respondent is already embedded in the public consciousness such that attempts to remove it from ready access on the internet will not achieve any reduction in risk. Indeed, any general awareness or recollection of such matters might serve as a trigger for a juror to seek to check or confirm some name or event that they recognise or recall.

5. On the evidence, there was a realistic prospect of the take-down order materially reducing the risk of jurors becoming aware of the adverse material. While some articles (or snippets thereof) might remain accessible, and include references to the adverse material, it does not follow that the order was futile. Utility, or effectiveness, is a matter of degree. The issue is one of reducing, rather than avoiding or eliminating, risk to an accused person’s right to a fair trial.

6. In the present case, the evidence supported the existence of a sufficient risk of prejudice to the respondent’s right to a fair trial (and hence the proper administration of justice), and a sufficient likelihood of a take-down order materially reducing that risk, such that it was appropriate for the Court to make the take-down order that was made.

Held (per Livesey JA), allowing the appeal:

1. The ubiquity of mobile phones and personal communication devices requires that, of necessity, confidence continue to be placed in the capacity of jury members to abide by their oaths and the directions they are given.

2. A take-down order cannot be effective unless it binds publishers who are not before the Court and about which the Court has no information. Enforcement against publishers who are not within the jurisdiction is impractical, if not impossible.

3. There remains ready access to websites, articles and cached descriptions of the adverse material. Despite the efforts of the parties and responsible news media, the take-down order cannot avoid the serious and material risk that any juror may be exposed to adverse material.

Background

Background to the litigation

The trial judge made orders essentially in the terms sought. The appellant publishers have appealed the take-down order.Background Mr Penhall was charged with the murder of Steven Hydon in 2004. It was alleged that the murder occurred in circumstances where Mr Penhall was a member of the Hells Angels, and Mr Hydon was a member of the rival bikie gang, the Gypsy Jokers. It was alleged that Mr Penhall shot Mr Hydon by way of retribution for an altercation that had occurred earlier in the day, involving Mr Penhall and several members of the Gypsy Jokers. It was alleged by the prosecution that this earlier altercation had occurred in circumstances where Mr Penhall was wearing a Hells Angels shirt and had been taunting the Gypsy Jokers members. Mr Penhall was acquitted by a jury of this 2004 murder charge. In 2008, Mr Penhall was ambushed by four men in a car. He was shot 14 times at very close range. He suffered very significant injuries as a result of this attack. No one has been charged in respect of this incident. That said, and as suggested in some of the publications in evidence before this Court, the ambush had all the hallmarks of payback for what had occurred in 2004.The original trial of the 2017 murder charge In 2017, Mr Penhall was charged with the murder of Mr Norris. The first trial of this charge occurred in November 2018. The circumstances of the alleged murder were that on a Sunday afternoon in September 2017, Mr Penhall attended Mr Norris’ trucking business premises. CCTV footage showed that a few hours after he arrived, Mr Penhall and Mr Norris entered the latter’s workshop together. Three minutes later, Mr Penhall emerged alone. In the intervening three minutes, Mr Penhall had killed the deceased by striking him to the face and head multiple times with a 2.1 kilogram ring spanner. There were no eyewitnesses. The prosecution case was that although there was no discernible motive for the killing, it was a spontaneous attack arising out of a sudden altercation between Mr Penhall and Mr Norris, and that the killing involved multiple blows to the head as Mr Norris lay defenceless on the ground. The defence case was that Mr Penhall attended Mr Norris’ premises essentially to visit his friend, Hans Thaller. He knew Mr Norris only as an acquaintance who he saw occasionally. As for what happened in the workshop, Mr Penhall’s evidence at trial was that Mr Norris attacked him with the spanner without warning as he said the words, “you should be fucking dead already”. Mr Penhall said that the two men then wrestled; that he wrangled the spanner from Mr Norris; that Mr Norris kept coming at him trying to regain the spanner; and that he had no choice but to continuously strike Mr Norris until he fell to the ground. During the course of that trial, Mr Penhall gave evidence of the 2008 ambush. He said that when attacked by Mr Norris, “it took [him] straight back to the last time where [he] was in a life-threatening situation with someone trying to kill [him] with a gun and the same thing was happening again.”

Evidence

Evidence Before The Court

The appellants took immediate steps to expedite their appeal, and on the afternoon of 19 July 2021 filed their notice of appeal challenging the take-down order. The grounds of appeal were that Peek J erred:·in failing to take into account or give sufficient weight to the lack of utility in making the order;·in not concluding that an appropriate direction to the jury to refrain from conducting internet searches would be sufficient to avoid any possible prejudice to the accused;·in giving insufficient weight to the obligation on juries to comply with directions of the Court;·in failing to give consideration to s 69A of the Evidence Act or, in the alternative, in being satisfied that special circumstances existed giving rise to a sufficiently serious threat of prejudice to the proper administration of justice;·in giving too much weight to the prejudice to the accused in the event that a take-down order was not made.The fresh evidence At the hearing of the appeal on the afternoon of 20 July 2021, the Court of Appeal was informed that the commencement of the re-trial had been deferred for at least a week. This had occurred as a result of the announcement that day of a lockdown throughout South Australia in response to developments in the COVID-19 pandemic affecting the State. The Court was informed by counsel for the appellant publishers, Mr Duggan QC, that his clients had complied with the take-down order made by Peek J. During the course of the hearing, Mr Duggan also informed the Court that his instructions were that, even if his clients’ appeal were to be successful, they would not seek to reinstate the articles they had taken down. As such, he acknowledged that the appeal was no longer urgent, but said that his clients wished to have the point of principle addressed by this Court. The Court also received, without objection, further or fresh evidence from both the appellant publishers and the defendant. It included evidence of some matters by way of context and background, which have been included in the preceding section of these reasons. It also included evidence as to some of the publications that were available on the internet (including some of the appellants’ publications), and as to the results returned from various Google searches of the internet (including some carried out after the removal of various articles by media organisations including the appellant publishers). An affidavit of Mr Henderson referred to a Google search of Jesse Ray Penhall that he performed on 19 July 2021. It returned 262,000 results. The affidavit attached the first three pages of those search results, which included articles which, based upon the website addresses in those search results, appear to have been published by a number of what might be referred to as ‘mainstream’ media organisations within Australia, as well as by a number of less recognisable organisations. The search results each include computer-generated summaries, referred to as snippets, containing at least part of the headline of the article in question, as well as a short excerpt from the content of the articles and, in some cases, the date of the article. It is apparent from the snippets that virtually all of the three pages of search results relate to material caught by the take-down order, such as articles referring to Mr Penhall’s acquittal of the 2004 murder charge, his conviction and sentencing for the 2017 murder charge (including reference to Mr Penhall having earlier “dodged death” after being shot more than a dozen times), and his appeal against that conviction. A couple of the snippets made reference to Mr Penhall being an “underworld figure”, and to both Mr Penhall and Mr Norris having affiliations with the Hells Angels.

Decision

Reasons for decision

As I have explained, Croucher J felt unable to distinguish Mokbel in Cerantonio. However, in my view, Mokbel is quite a different case to the present one. The evidence does not support any conclusion that Mr Penhall’s name, let alone the other adverse material about him, has been so widely publicised as to have become embedded in the public consciousness.[107] In this way, it seems to me that the ongoing availability of adverse material on the internet represents a greater risk of prejudice to Mr Penhall than could be said in the case of Mr Mokbel (where the issue was essentially one of an incremental increase in the significant and unavoidable risk of prejudice that already existed by reason of the past publicity).[107] As opposed to that publicity having given rise to some general or vague sense of recognition or recollection on the part of a juror, which might have the unfortunate consequence of prompting a misguided juror to undertake a search.Conclusion I am mindful of the relatively cautious approach to the making of take-down orders demonstrated by the authorities to which I have referred. They make it plain that such orders should not lightly be made, and should not be made where the evidence does not establish a real risk of prejudice to an accused’s right to a fair trial by reason of material that is readily accessible on the internet, and a real prospect that such an order will have some material effect in reducing that risk. They also make it plain that when considering the appropriateness of making such an order, the Court should take a relatively robust view of jurors’ preparedness and ability to obey the directions they are given, and hence to not to seek out extraneous information, to ignore any extraneous material that might nevertheless come to their attention, and to act solely upon the basis of the evidence in the trial. But those authorities also recognise that the Court has the power to make a take-down order in an appropriate case. Jurors are human beings, and are not infallible. The Court’s confidence in jurors’ ability to obey the directions they are given, while an important consideration, is not a reason for the Court to shrink from its responsibility to do what it can to assist jurors in their task. As such, in cases where the evidence reveals a clear threat to an accused person’s right to a fair trial by reason of seriously adverse material available on the internet, and a real prospect of a take-down order materially reducing that risk, the Court should be prepared to lend its assistance to the parties’ efforts to protect jurors from exposure to the adverse material. The requisite utility of the order is to be assessed by its capacity to reduce the risk of prejudice, not its capacity to avoid or eliminate that risk. While it is stating the obvious, an application for a take-down order is more likely to be successful where it is focussed in terms of the publications and publishers it seeks to target; is supported by evidence as to the likely effectiveness of the contemplated order in reducing the risk of jurors becoming aware of the adverse material; and is brought in a timely way, and accompanied by evidence of the efforts made, and to be made, by the applicant to ensure the requisite effectiveness of the orders.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.