Advertiser Newspapers Pty Ltd v Penhall

[2021] SASCA 76

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 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.

Evidence Act 1929 (SA) ss 68, 69A, 69B, referred to.
Penhall v The Queen [2020] SASCFC 58; News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; R v Cerantonio [2018] VSC 84; Dupas v The Queen (2010) 241 CLR 237; General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68; John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344; Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384; AW v The Queen [2016] NSWCCA 227; R v Perish [2011] NSWSC 1102; R v Debs [2011] NSWSC 1248; Roberts v The Queen [2020] VSCA 188; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; House v The King (1936) 55 CLR 499; Warne v The Queen [2020] SASCFC 12; R v K (2003) 59 NSWLR 431; Registrar of the Supreme Court of South Australia v S [2016] SASC 93; R v Perre [2019] SASCFC 100; R v Glennon (1992) 173 CLR 592; Channel Seven Adelaide v An Accused (2008) 103 SASR 459; D v The Director of Public Prosecutions (Cth) (2018) 131 SASR 1; Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38; Georganas v Barkla [2021] SASC 47; Minister for Immigration v SZVFW (2018) 264 CLR 541; R v Christie [1914] AC 545; Gilbert v The Queen (2001) 201 CLR 413, considered.

ADVERTISER NEWSPAPERS PTY LTD & ORS v PENHALL
[2021] SASCA 76

Court of Appeal – Civil:  Kourakis CJ, Doyle and Livesey JJA

1. KOURAKIS CJ:     I would dismiss the appeal for the reasons given by Doyle JA.

2. I make the following additional observations. 

3. Websites and webpages are created on electronic devices and may be accessed through the device itself if it is electronically connected to the World‑Wide‑Web.  More commonly however, persons who maintain websites and post electronic material on them do so through private, public or commercially provided servers, but in a way which allows them to control, regulate or preclude access by others.  The access which is allowed electronically is analogous to keeping the doors to a library of hard‑copy information open.  To cease publication on the World‑Wide‑Web requires a step to be taken by the publisher, but it is a step by which the access given by the continuous publication, which the World‑Wide‑Web enables, is restricted.  Importantly, once published, the webpage is not imbued with an existence on the World‑Wide‑Web which is independent of the acts of publication of the publishers.  Its continued existence depends on the continuing management of the publication by its creator.  The use of the metaphor “take down” tends to obscure the nature of publications on the World‑Wide‑Web.

4. Secondly, I would emphasise that orders made pursuant to s 69A of the Evidence Act 1929 (SA) (the Evidence Act), or in the inherent jurisdiction of the Court, are integral aspects of the management of a trial, and a jury trial in particular. The duty of a trial judge is to ensure that the trial is conducted according to law. Adjudications must be made on the evidence adduced by the parties, and only that evidence. They must be made free of any extraneous influence.

5. The question on an appeal against a verdict of guilty in a criminal trial on the ground of extraneous influence is whether there has been a miscarriage of justice.  On appeal, that question is answered retrospectively with the benefit of an assessment of all of the evidence, the summing up and the verdict or verdicts delivered on the conclusion of the trial.  The question before a trial judge on an application to make suppression orders is a fundamentally different prospective one.  The trial judge must endeavour to minimise risks that could impede the fair and just completion of the trial.  The first of those risks is that the judge may be called on to discharge a jury which has, directly or indirectly, become aware of extraneous material.  The second risk is that an appeal court may set aside a verdict or verdicts of guilty on the ground that extraneous publicity has caused a miscarriage of justice.  There is no inconsistency between a trial judge’s responsibility to do all that reasonably practicably can be done to ensure a fair trial according to law, and a robust approach to the question of miscarriage on appeal.

6. The considerations just identified strongly support the conclusion that an appeal brought pursuant to s 69AC of the Evidence Act, like an appeal brought pursuant to s 50 of the Supreme Court Act 1935 (SA), is by way of a rehearing, and that the orders made pursuant to s 69A of the Evidence Act, or in the Court’s inherent jurisdiction, are made in the exercise of a discretion. If that is so, an error of a kind which vitiates a discretionary exercise of power must be shown. Even if the appeal were by way of de novo hearing, or against an evaluative judgment, great deference would be given to the trial judge’s synthesis of the competing multifactorial considerations involved.  A failure to give full weight to the institutional experience of criminal trial judges on what is necessary to bring a jury trial to a fair conclusion may imperil the very institution of trial by jury.

7. The above leads to a consideration of what it means, in the context of orders made pursuant to s 69 of the Evidence Act, and in the inherent jurisdiction to speak of a futile order. Utility is nowhere expressed to be a condition precedent to the making of an order but is entailed in the statutory and common law condition that the order is necessary, or justifiable, in order to prevent prejudice to the proper administration of justice. What is necessary or justified on the one hand, or would be futile on the other, is not to be measured against whether the order would remove all extraneous prejudicial material from the public sphere. It must be measured against what is necessary to prevent, where possible, prejudice to the administration of justice. The administration of justice is not only prejudiced when a jury is discharged or a conviction set aside on the grounds of a miscarriage of justice occasioned by extraneous influences. It is prejudiced when a criminal trial is conducted in the shadow of that influence, when special measures must be taken in the trial to counter its influence, and when a resulting conviction is tainted by a concern about that influence, whether the conviction is ultimately set aside on appeal or not. The utility of the order is, therefore, to be judged by its capacity to materially protect against prejudice to the administration of justice. The trial judge is generally in the best position to make that assessment.

8. Next, I observe that s 69A enshrines the public interest in open justice as the primary objective in the administration of justice. Section 69A(2)(b) declares that only in special circumstances will the open justice principle give way for the need to prevent prejudice to the proper administration of justice in the particular case. Section 69A is not concerned with the public interest in the free communication of information generally. Of course, freedom of speech is both a common law and constitutional value. It is a relevant consideration in the exercise of the power conferred by s 69A and in the inherent jurisdiction of the Court. However, there is no paramount consideration when balancing the proper administration of justice against the freedom of communication. The common law has long been concerned to ensure the fair administration of the criminal law. Even the constitutional freedom of communication is qualified by limits which are inherent in a liberal democratic society ordered by the rule of law. The fair administration of the criminal law is one such limit. It must be remembered that a suppression order is time-limited.

9. Finally, I would warn against conducting a trial within a trial on the question of whether or not to make a prophylactic order.  Affidavits have been filed on this appeal by consent, both before and after the hearing.  Those affidavits have added substantially to the material which was before the trial judge.  Even so, the material has touched, but lightly, on only some of the ways in which online publications may prejudice the administration of justice in the conduct of this trial and the ways in which the Judge’s order would protect against that prejudice.  This Court has had much more time to consider the matter than the trial judge.  Nonetheless, questions remain.  To what extent is a jury likely to regard local mainstream media articles as more authoritative and comprehensive than a snippet, and, for that reason, likely to be more influenced if access was allowed to the full article?  Do mainstream online news media include a link to historic articles with content at the foot of current news items they post?  Do media websites have an internal search function which is commonly used?  How many snippets are shown on a search conducted by a smartphone and do they differ from the results thrown up by another device?  How many pages of snippets do most online searchers generally scroll through?

10. I do not suggest that comprehensive evidence of this kind should be adduced.  Far from it.  I wish to expose the complexity of these matters and the undesirability of adding to the burden of trial judges.  Trial judges should be allowed the space to make an impressionistic assessment guided by their experience and the experience of trial judges generally. 

11. DOYLE JA:     The defendant, Jesse Ray Penhall, is charged with the murder of David Norris on 10 September 2017.  He was convicted by a jury of this charge in November 2018, and was subsequently sentenced to life imprisonment with a non-parole period of 23 years.  However, Mr Penhall’s appeal was successful, and his conviction was set aside.  The re-trial of this charge was scheduled to commence on 19 July 2021.

12. On the morning of 19 July 2021, the defendant made an application for a suppression order.  The application was not opposed by the Director of Public Prosecutions.  It was opposed in part by the proprietors of various News Corp Australia publications (namely Advertiser Newspapers Pty Ltd, Queensland Newspapers Pty Ltd, Herald and Weekly Times Pty Ltd and Nationwide News Pty Ltd) (the appellant publishers).

13. The application sought to suppress publication of material that made reference to matters including Mr Penhall’s earlier trial and conviction, sentencing and appeal.  However, it also sought to suppress from publication any other reference to wrongdoing by Mr Penhall, including his arrest or prosecution for any other criminal charge.  As elaborated upon below, the application was intended to capture publication of material that included reports of Mr Penhall’s acquittal of an earlier charge of murder in 2004. It sought the suppression of such material until a verdict was rendered by the jury in the re-trial that was by then due to commence the following day.

14. The application sought both an order that suppressed prospective publication of new articles referring to these matters, as well an order taking down from the internet the existing publications referring to these matters.  The opposition of the appellant publishers was confined to the so-called take-down order.

15. The trial judge made orders essentially in the terms sought.  The appellant publishers have appealed the take-down order.

    Background

16. 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.

17. 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

18. In 2017, Mr Penhall was charged with the murder of Mr Norris.  The first trial of this charge occurred in November 2018.

19. 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.

20. 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.

21. 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.”

22. No evidence was led, or mention made, during the trial of Mr Penhall having been charged with murder in 2004; of any suggested connection between the events of 2004 and the 2008 ambush; or of any affiliation on the part of Mr Penhall, Mr Norris or Mr Thaller with any bikie gang.   

1. At the conclusion of the trial, a jury convicted Mr Penhall of the charge of murder.

2. In June 2019, Mr Penhall was sentenced by the trial judge (Blue J) to life imprisonment, with a non-parole period of 23 years.  His Honour’s sentencing remarks included reference to Mr Penhall having several convictions for offences involving violence or potential violence.  However, they made no reference to the 2004 charge of murder, the 2008 ambush, or any affiliation with any bikie gang.

3. On the same occasion, Blue J also sentenced Mr Thaller, on his plea of guilty, for the offence of impeding the investigation of the murder by Mr Penhall.  By his plea, Mr Thaller admitted washing blood from the spanner, and giving a version of events to the police that omitted any reference to Mr Penhall.  His Honour sentenced Mr Thaller on the basis that the reason for his conduct was that he was a friend of Mr Penhall and did not wish to implicate him.  His Honour sentenced Mr Thaller to 12 months 18 days imprisonment, with a non-parole period of seven months.  His Honour ordered that Mr Thaller serve his sentence on home detention.

4. Mr Penhall appealed his murder conviction to the Court of Criminal Appeal.  In June 2020, the Court held that Blue J had erred in his directions as to self-defence, and in failing to leave provocation to the jury.  The Court allowed the appeal, set aside the conviction and ordered that there be a re-trial.[1]

   [1]     Penhall v The Queen [2020] SASCFC 58.

   The lead up to the re-trial of the 2017 murder charge

5. The re-trial was originally listed to commence on 7 June 2021.  In the weeks leading up to that scheduled commencement date, Mr Penhall’s solicitor, Mr Henderson, became aware of material on the internet relating to not only the first trial for the 2017 charge of murder, but also the sentencing of Mr Penhall for that murder, the appeal, the related offending of Mr Thaller, and Mr Penhall’s acquittal of the 2004 charge of murder. 

6. In late May 2021, Mr Henderson wrote to some of the publishers of that material, including not only News Pty Ltd (in respect of 17 identified articles or items accessible on the internet), but also the ABC (in respect of four articles), 9 News (in respect of seven articles), 7 Network (in respect of one article), and the Islander (in respect of three articles).  He received a response from 7 Network indicating that it had removed its article.  He received a without prejudice response from News Pty Ltd, which is not in evidence.  He did not receive any response from the ABC, 9 News or the Islander.

7. Mr Henderson also wrote to the operator of a website entitled ‘biker-news.com’ requesting that it remove certain publications from its website.  He received a response from the operator to the effect that these publications had been ‘suspended’.

   The miscarried re-trial of the 2017 murder charge

8. Mr Penhall’s re-trial commenced as scheduled on 7 June 2021, before Peek J.  Following a voir dire, his Honour made a suppression order in the following terms:

   I suppress publication of any reference to the previous trial of the defendant for the present charge or his appeal in relation thereto and any links or references to previous reporting of that trial or appeal.  This suppression order does not apply to evidence given, or submissions made, in the presence of the jury in the present trial which relate to evidence given in the previous trial or to the previous appeal.

9. The jury was empanelled on Friday, 11 June 2021.  Following their empanelment, the jury were given a standard direction by Peek J not to conduct their own research on the internet and to act only on the evidence presented at trial.  Following the prosecutor’s opening address, the trial was adjourned for lunch. 

10. The prosecutor’s address did not include any reference to bikie gangs, and indeed it was agreed that the evidence to be adduced at the re-trial, like the trial, would not include any reference to Mr Penhall’s previous charge for murder in 2004, any suggestion of the 2008 ambush having any connection to bikie gangs, or to any suggestion of Mr Penhall having any connection with the Hells Angels.  It would seem that there was necessarily going to be some reference to the fact of a previous trial, given that the prosecution intended to rely upon the evidence of Mr Penhall from the original trial.  But presumably any such reference would have been accompanied by a direction instructing the jury not to speculate about what might have happened at that trial, and to confine their attention to the evidence presented to them during the trial.

11. Immediately upon the Court reconvening after lunch, Peek J informed the parties that he had received a note from a member of the jury indicating that she had been contacted by her son telling her that someone had recognised her, and that she was “on a bikie case”.  Questioning of the juror revealed that she had been advised by her son that she should “get off the case”.

12. Mr Penhall’s counsel made an application for a mistrial.  It was not opposed by the prosecution, and was granted.

13. Subsequent inquiries revealed that a member of the jury pool who was not selected on the jury thought she recognised the juror in question.  Having heard the name of the accused, but having not been selected as a juror, she carried out a Google search of the defendant’s name and “found out what had previously occurred”.  She mentioned the juror she had recognised to her husband, who posted a message on a Facebook messenger group chat of which the juror’s son was a member.  The son learned that his mother was a juror on a bikie case from this group chat, leading to him contacting his mother, telling her it was a “bikie case” and advising her to get off the case.

    The lead up to the second re-trial of the 2017 murder charge

14. At a subsequent directions hearing, the re-trial was re-scheduled to commence on 19 July 2021.  In the lead up to this trial, the Director’s office wrote to various media outlets seeking their cooperation in removing from the internet various articles that related to Mr Penhall.

15. A response dated 16 July 2021 was received from MinterEllison on behalf of the appellant publishers, namely Advertiser Newspapers Pty Ltd (as publisher of The Advertiser), Queensland Newspapers Pty Ltd (as publisher of The Courier Mail, Cairns Post and Gold Coast Bulletin), Herald and Weekly Times Pty Ltd (as publisher of The Weekly Times) and Nationwide News Pty Ltd (as publisher of The Daily Telegraph and NT News).  The letter from MinterEllison noted the request that any publications relating to Mr Penhall’s original trial, appeal or re-trial be removed from their clients’ affiliated websites until a verdict was delivered in the re-trial.  The letter advised that their clients, the appellant publishers, had declined the request. 

16. The letter went on to set out the reasons for declining the request.  The first was that it was to be expected that jurors would receive and obey directions not to carry out internet searches.  The second was that compliance with the request would be futile and ineffective to address the Director’s concerns given that a Google search of “Jesse Ray Penhall” produced over 270,000 results.  Many of these publications, which included publications on overseas websites, were articles over which the appellant publishers had no control.  The removal of their publications would therefore not clean the internet of references to Mr Penhall, but rather would serve only to give greater prominence to other articles.  The letter cited the decisions in News Digital Media Pty Ltd v Mokbel,[2] Fairfax Media Australia and New Zealand Pty Ltd v Ibrahim[3] and R v Cerantonio[4] in support of the position taken by the appellant publishers.  The letter added that it would not be a simple or quick process for those publishers to remove multiple articles and re-publish them at a later date.  The letter concluded by requesting notice of any application for a take-down order, indicating that the appellant publishers wished to be heard on any such application.

    [2]     News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248.

    [3]     Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52.

    [4]     R v Cerantonio [2018] VSC 84.

    The application for suppression orders

17. An application for suppression orders, including a take-down order, was made on the morning of 19 July 2021, being the date scheduled for the re-commencement of the re-trial of Mr Penhall.  Mr Short of MinterEllison appeared as counsel for the appellant publishers.  Suppression orders in terms similar to those ultimately made (see below) were sought by the defendant’s counsel, and were not opposed by the prosecution. 

18. Mr Short indicated that his clients’ opposition was confined to the take-down order.  He made submissions broadly in line with what had been set out in MinterEllison’s letter of 16 July 2021.  He referred to a Google search indicating that there were some 262,000 results that might be encompassed by the proposed order, and to the contended futility or ineffectiveness of any such order given that many of the results appeared to relate to articles published by organisations outside of South Australia, and indeed outside of Australia.  The removal of his clients’ publications might simply increase the prominence of other publications.  Mr Short referred to an expectation that jurors would abide the stringent directions they were likely to be given in relation to not carrying out searches, and the fact that the material in question was not current material that a compliant juror might inadvertently come across.  Mr Short made brief reference to the cases which had been mentioned in the MinterEllison letter.  Mr Short also made reference to the High Court’s decision in Dupas v The Queen[5] in relation to the Court’s ability to ensure a fair trial by jury despite pervasive pre-trial publicity of the most damaging kind.

    [5]     Dupas v The Queen (2010) 241 CLR 237.

19. In the course of Mr Short’s submissions, Peek J mentioned various countervailing considerations.  His Honour mentioned that any restriction upon publication would be temporary, lasting only until the resolution of the present proceedings.  He mentioned that the proposed order would not strike at the power to report the current proceedings, but would require only the temporary taking down of past articles.  As to the suggested futility of the order, Peek J said that the order might still achieve something, and the mere fact that a remedy sought would not be 100 per cent effective was not fatal to the order being made.  And as to the expectation that jurors will obey directions not to search the internet, Peek J pointed out that this would not address situations such as what had occurred at the miscarried re-trial just a few weeks earlier.

    The orders and the appeal

20. After adjourning for the lunch break, Peek J announced his intention to make the orders sought.  His Honour said:

    Concerning the application for a suppression and ‘take-down’ order, I proceed in the following way.

    In the brief time available to me, I have again considered the principles applicable to the making of suppression orders generally and ‘take-down’ orders in particular, including the decision of the Full Court in D v Director of Public Prosecutions (2018) 131 SASR 1 and the decisions referred to me by Mr Short …

    I’ve taken into account the factors and considerations militating for and against the making of such orders discussed in judgments such as the above, as well as the submissions of Mr Short.  For the reasons that largely appear in the dialogue with counsel this morning, I consider that the correct balance will be come to if I make an order in the terms I largely foreshadowed during that dialogue.

21. His Honour then made orders in the following terms:

    1.Pursuant to s 69A of the Evidence Act 1929 (SA) and to prevent prejudice to the proper administration of justice, I hereby suppress until a verdict is rendered by a jury in the present trial scheduled to commence tomorrow (Tuesday, 20 July 2021), any publications in any way referring to, or concerning, any wrongdoing by Mr Jesse Ray Penhall or his arrest or prosecution in the Magistrates Court, the Supreme Court or the Court of Criminal Appeal for a charge of murder or any other charge. Such publications are to include, but are in no way limited to, any reference to persons by the names of Mr Hans Thaller or Mr David John Norris mentioned in connection with any wrongdoing by, or any charge of a criminal offence brought against, Mr Jesse Ray Penhall [the suppression order].

    2.Further, media organisations, including but not limited to those represented by Mr Short, are hereby ordered to forthwith take down from the internet any such publications [the take-down order].

22. Following the making of these orders, Mr Short informed Peek J that he had instructions to appeal the take-down order, which appeal would be expedited in accordance with the provisions under the Evidence Act1929 (SA). He sought a stay of the order, which Peek J refused.

23. 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

24. 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.

25. 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.

26. 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).

27. 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.

28. The affidavit also attached three articles which appeared within those search results.  The first two of these articles appear to have been published by the appellants, or at least entities associated with them.

29. The first is an article dated 19 November 2018 and published on It is a report of the original trial of Mr Penhall for the 2017 charge of murder, before the verdict was handed down.  The headline and lede were in the following terms:

    Jesse Penhall murder trial:  Accused says he had no choice but to seize a 2kg spanner and strike victim multiple times

    A man who survived being shot 14 times a decade ago has admitted to a jury he bashed another man to death with a 2kg spanner – but claims he was acting in self-defence because his victim was trying to kill him.

30. The article thereafter set out a summary of various aspects of the evidence at the original trial.

31. The second is an article dated 24 November 2018 and published on It is a lengthy article that contains a report of the original trial of Mr Penhall for the 2017 murder charge shortly following its conclusion, but includes reference to other matters including the 2004 murder charge, the 2008 ambush and suggested connections with bikie organisations.  Its headline and lede were as follows:

    How Jesse Ray Penhall dodged death and prison – until now

    Jesse Ray Penhall walked free from his first murder trial.  Then he staggered into a country pub bleeding profusely from 14 bullet wounds.  Then he killed a Hells Angel … and his luck finally ran out.

32. The balance of the article included reference to Mr Penhall having “a penchant for extreme violence”, being an “outlaw with a gift for dodging disaster”, and being “rightly feared by many in the murky underworld of outlaw motorcycle gangs, drugs and violence where he sat somewhere within the shadowed hierarchy of the Hells Angels.”  The 2008 incident was described as a “bikie ambush” said to have followed his acquittal of the 2004 shooting murder of another outlaw bikie, Steven Hydon of the Gypsy Jokers.  Mr Penhall’s conviction for the 2017 killing of Mr Norris was described as “the end of a remarkable chain of events, in which Jesse Ray Penhall was the key player, beginning on a chilly Saturday night in Wallaroo in May 2004” when a Gypsy Joker was shot dead.  There followed a summary of the trial and acquittal of Mr Penhall in respect of the 2004 murder charge, and the 2008 ambush.  The latter included reference to Major Crimes detectives quoted as saying it would be “naïve” not to think that the attempted assassination was payback for the death of Mr Hydon by people outraged that he had escaped conviction.  The article concluded with a summary of the original trial and conviction of Mr Penhall in respect of the 2017 murder charge.

33. The third is an article dated 25 June 2019 and published on It is a report of Blue J’s sentencing remarks.  However, it also contains references to Mr Norris being a Hells Angels bikie and to Mr Penhall’s acquittal of the 2004 murder charge which did not come from those sentencing remarks.  The headline and lede were as follows:

    Man who survived being shot more than a dozen times jailed for murdering Hells Angels bikie

    Jesse Ray Penhall, who survived being shot more than a dozen times in 2008, has been handed a life sentence for bashing a Hells Angels bikie to death with a spanner in Adelaide.

1. After setting out a summary of various matters coming from Blue J’s sentencing remarks in relation to both Mr Penhall and Mr Thaller, and other matters coming from the evidence given at the original trial, the article concluded:

   Penhall was charged with the shooting murder of Steven Hydon, a member of the Gypsy Jokers outlaw motorcycle gang, in Wallaroo in 2004, but he and his co-accused … were acquitted. 

   Four years later, Penhall nearly died after being shot more than a dozen times during an ambush at Paskeville.

2. The appellants relied upon an affidavit of a solicitor from MinterEllison, Ms O’Keeffe, which not only set out some matters of history and context, but also described and attached the results of various Google searches carried out on 19 July 2021 and 20 July 2021.

3. The first of the Google searches carried out late in the afternoon of 19 July 2021 used the search terms Jesse Ray Penhall, and produced 263,000 results.  The second used the search terms “Jesse Ray Penhall”, and produced 1,210 results.  The first 10 pages of each of these sets of results were attached to the affidavit.  A perusal of the snippets of these results indicates that virtually all of them related to the events described above, particularly the original trial of Mr Penhall for the 2017 charge of murder.  Many of the snippets included reference to Mr Penhall being affiliated with the Hells Angels, and several made reference to Mr Penhall’s earlier acquittal of the 2004 murder charge and the 2008 ambush.  

4. As the affidavit explains, the websites listed in the search results indicate that a number of the results relate to publications by mainstream media organisations within Australia.  However, both sets of results also include publications from other sites – some of which appear to relate to publications outside of Australia such  as    newslettercollector.com, pressfrom.info, dinomsc.com, harleyliberty.com, biker-news.com and Copies of some of these publications are attached to the affidavit.  They include references to the original trial and conviction of Mr Penhall for the 2017 charge of murder, but also include prominent references to Mr Penhall as a bikie and a member or affiliate of the Hells Angels, and as having been the victim of the 2008 ambush.  A couple of them also refer to Mr Penhall’s acquittal of the 2004 charge of murdering Mr Hydon, referring to him as a Gypsy Joker.

5. The third Google search carried out on 19 July 2021 used the search terms “Jesse Ray Penhall” and “David Norris”, and produced 761 results.  As well as including most of the above publications, there were also links in the first 10 pages of those results to a number of other sites that did not appear to be associated with mainstream media organisations in Australia.  A perusal of the snippets of these search results again included numerous references to Mr Penhall’s original trial and conviction of the 2017 murder charge, as well as some references to him being a bikie, having connections to the Hells Angels and being an underworld figure.

6. Ms O’Keeffe’s affidavit also referred to a Google search carried out just before midday on 20 July 2021, with the search terms Jesse Ray Penhall.  The search returned 267,000 results.  A perusal of the first 10 pages of those search results attached to the affidavit indicates that the results are similar to those obtained the day before, despite efforts that had apparently been made in the interim by media organisations, including the appellants, to remove articles captured by Peek J’s take-down order.  However, it appears that a number of the links to articles published by those media organisations were no longer accessible.  As Ms O’Keeffe deposed:

   I attempted to open a number of the links which appeared in that search which linked to media organisation websites including Adelaide Now, ABC, the Herald Sun, 7 News and the Sunshine Coast Daily.  When I clicked on these links I was taken to pages which indicated that the page or link could not be found. …

   I am instructed by the Appellants that the reason why the link to these websites still appears is due to caching by Google.  I am instructed that it can take several days if not a week for Google to take down or delete caching after a request from the relevant publisher.  Until that occurs the website link and the ‘summary’ which appears underneath it will still appear in internet search results.

7. In other words, despite the links to these publications not being accessible, they were nevertheless still included in the search results due to caching by Google.  Further, the snippets produced from these cached versions of the webpage included numerous references to Mr Penhall’s original trial and conviction for the 2017 murder charge, as well as references to the 2004 murder charge acquittal, the 2008 ambush and to the Hells Angels.

8. Further, in addition to these cached results from mainstream media organisations in Australia, the 20 July 2021 search results continued to include various other results from both within Australia and outside of Australia, including those mentioned and summarised above.

9. In Mr Henderson’s affidavit, he explained that upon becoming aware, on 20 July 2020, that the snippets of the removed material were still accessible through Google’s search engine, he sent an email to the “Google Australia Legal Team” seeking their assistance in removing these snippets.  The response provided a link to information about requests to remove material from Google search results using Google’s “online tools”, adding that “[i]f content has already been updated or deleted from a website but still shows up in Google search results, you can request a removal of outdated content” using a form (a link to which was provided).  The response added:

   Using these online tools will make sure your request reaches the right team at Google LLC.  Google Search is operated by Google LLC, based in the United States. 

   Google Australia doesn’t have the ability to block, remove or restrict access to information from Google Search.

10. Mr Henderson further explained that, using the form to which a link had been provided, he had made requests for the removal of “many articles” from Google search results.  He attached a copy of a report from Google indicating that approximately 50 requests had been made and were “pending”.  Consistently with my understanding of Google’s response to Mr Henderson, this report also contains a note from Google that “[t]his tool works only for pages or images that have already been modified or removed from the web”; that is, it only works to remove the search results and snippets for articles that have been removed by the relevant publisher.  The report added that “[t]o remove personal information or content with legal issues that still exist on a page, submit a legal request instead”.

11. After the Court had reserved judgment in this matter, each party filed a further affidavit updating the Court as to the accessibility of articles relating to Mr Penhall, and the steps that had been taken in relation to the same.  No objection was taken to the Court receiving this evidence.

12. In his affidavit dated 30 July 2021, Mr Henderson said that the re-trial of Mr Penhall had commenced as scheduled on 28 July 2021.  He anticipated that it would take at least a week. 

13. Mr Henderson explained that he had continued to make requests of Google to remove “the broken links” that appeared in the search results.  He exhibited an extract from an updated report generated by Google, showing that the various requests were either “approved”, “denied” or “expired”.  While a large proportion of them were marked “approved”, some were marked “denied” or “expired”.

14. Mr Henderson also explained that he had emailed the operators of five of the overseas websites that included publications concerning his client.  While four of these publications remained available, the operator of one website ( had removed the article that had been available through its website.

15. Finally, Mr Henderson deposed that, of the 29 search results appearing on the first three pages of a Google search of “Jesse Ray Penhall”, only six of the underlying articles remained accessible as at 30 July 2021.  By inference, the order had been successful in removing the balance of those articles.

16. The appellant publishers filed a further affidavit of Ms O’Keeffe.  She deposed that when she searched Jesse Ray Penhall on 29 July 2021, it returned a similar number of results as had been returned by the same search on 19 July 2021.  She said that the same was true of some other related searches that she carried out. She added that the snippets returned in the search results that she obtained continued to include references to the adverse material which Mr Penhall had sought to have taken down.  While acknowledging that many of the articles in the snippets were no longer able to be accessed, she was still able to access several of the links.  She pointed to several examples of articles that remained accessible, and contained the adverse material, being articles that appear to be attributable to overseas publishers (and overlap substantially with the publications of this nature listed earlier), as well as a publication on Facebook.

17. Ms O’Keeffe attached the results of a Bing search of the name Jesse Ray Penhall undertaken on 30 July 2021.  It returned about 30,800 results.  She noted that one of the snippets on the first page of these results included reference to Mr Penhall in the context of the 2004 killing of a Gypsy Joker.

    The authorities governing take-down orders

18. Before turning to a consideration of the order made by Peek J, and the challenge to that order on this appeal, it is useful to commence with a consideration of some of the more significant authorities dealing with take-down orders.

19. The first is the decision of the Victorian Court of Appeal in News Digital Media Pty Ltd v Mokbel (Mokbel).[6]  Mr Mokbel was charged with murder and with a number of drug-related offences.  On 10 August 2009, prior to the commencement of the murder trial, an order was made extending, until further order, a suppression order that had been made on 15 April 2009.  The effect of the suppression order was to prohibit, until further order, publication of (i) any material containing reference to the forthcoming committal, trial or appeal proceedings concerning the accused person or co-accused (referred to as “the proceedings suppression order”); and (ii) any material stating that the accused person had any previous criminal convictions, had been charged with any criminal offence, had been involved in the manufacture or trafficking of drugs, had been involved in the killing of any person, had been associated with the ‘gangland’ or ‘underworld’, or had been associated with Carl Williams (“the general suppression order”) (together, “the suppression orders”).

    [6]     News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248.

20. On 21 August 2009, shortly before the empanelment of the jury for the murder trial, two media organisations (“the applicants”) were ordered to remove from their respective websites and not publish any articles containing reference to Mr Mokbel by 4.00 pm on 25 August 2009 (referred to as “the internet order”). 

21. It is apparent that the trial judge was concerned to protect Mr Mokbel from the adverse impact in the mind of jurors or potential jurors of the pre-trial publicity which he had attracted.  It is also apparent that this concern was directed not only to the impact of this publicity on the minds of the jurors to be empanelled for the murder trial, but also to its impact on the minds of jurors to be empanelled in other trials which Mr Mokbel was to face in the near future.

22. The applicants sought leave to appeal against the suppression orders, and the internet order.  The Victorian Court of Appeal refused leave to appeal against the suppression orders, but by majority (Warren CJ and Byrne AJA, Buchanan JA dissenting) granted the application for leave to appeal, and allowed the appeal, against the internet order.

23. In addressing the suppression orders, the majority distinguished between the proceedings suppression order and the general suppression order.[7]  Both were directed to the same purpose; namely, protecting the integrity of the Court’s process, and in particular the accused’s right to a fair trial, by reducing the risk of extraneous material coming to the attention of jurors.  And both were intended to be temporary in nature, or to result in the mere postponement of publications.  However, they raised different policy considerations in that whilst the former cut across the public interest in favour of open justice, the latter did not.  The countervailing principle in respect of the latter was not open justice, but rather that of free speech, or the public’s ‘right to know’.

    [7]     Mokbel at [33]-[39].

24. Further, whereas power to make the proceedings suppression order may have existed under s 18 of the Supreme Court Act 1986 (Vic),[8] at least the general suppression order was dependent upon the inherent jurisdiction of the Court.[9]  Warren CJ and Byrne AJA had no doubt that such jurisdiction existed, and was capable of supporting an order of the type made in circumstances where the Court apprehended that publication of the relevant material would prejudice the forthcoming murder trial or Mr Mokbel’s other pending trials.[10]  Referring to the earlier decision of the Court in General Television Corporation Pty Ltd v Director of Public Prosecutions[11] that had confirmed the existence of this jurisdiction, their Honours said:[12]

    In GTC v DPP, this court expressed the view that the court in making a suppression order in its inherent jurisdiction is exercising a general power to protect its own process notwithstanding that it is akin to that of restraining a threatened contempt.  The procedural constraints which may be applicable to an application for an injunction to restrain criminal conduct may not always be appropriate to an application for a suppression order.  In these circumstances, therefore, this jurisdiction may be exercised where the court, being mindful of the importance of the principle of free speech, is nevertheless satisfied on the balance of probabilities that a suppression order is necessary to protect its own process from risk.

    [8] Section 18 conferred the Court with power, in the circumstances mentioned in s 19, to “make an order prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding”. Section 19 relevantly provided that an order could be made under s 18 if, in the opinion of the Court, it was necessary to do so in order not to prejudice the administration of justice. However, their Honours considered it unnecessary to consider whether ss 18 and 19 supported the order by reason of the applicants’ failure to challenge those orders when they were made, and the consequent lack of reasons on the part of the trial judge.

    [9]     Mokbel at [48].

    [10]   Mokbel at [48].

    [11]   General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68 at [28].

    [12]   Mokbel at [55] (omitting citations).

25. I interpolate that the Court in General Television Corporation Pty Ltd v Director of Public Prosecutions,[13] while going on to observe that the Court did not have power to “bind the world” by making a suppression order in the exercise of its inherent jurisdiction to ensure a fair trial, added that it did not follow that a suppression order would be invalid or inutile simply because it was not in terms directed to anyone in particular.  The Court recognised that such orders are routinely made and bind not only the parties, but also those who are in court or are otherwise given notice of the order.

    [13]   General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68 at [29].

26. Returning to Mokbel, Warren CJ and Byrne AJA saw no reason to doubt the correctness of the trial judge’s assessment of risk to the trial process which was sought to be protected by the suppression orders made, and so refused leave to appeal those orders.

27. Turning to the internet order, their Honours noted that it was expressed in very broad terms (covering any articles containing reference to Mr Mokbel).  And it required not only that the media take down existing articles containing this reference, but also prevented them from publishing, or re-publishing, such articles in the future.  The order was, like the suppression orders, made with the objective of protecting the impending criminal trial process from being contaminated by irrelevant and inadmissible material concerning the accused.  On appeal, the order was only sought to be justified as an exercise of the Court’s inherent jurisdiction.[14]

    [14]   Mokbel at [61].

28. Focussing upon the aspect of the order that would require that articles be taken down, the majority accepted that the inherent jurisdiction to restrain publication of material that had a real potential to prejudice the fair trial of an accused person extended to the making of an order requiring the removal of existing articles from the internet.[15]  However, whether there was in fact a sufficient risk of the publications coming to the attention of potential jurors to warrant an order being made would require consideration of not only the nature and accessibility of the articles on the internet, but also the assumption that jurors will comply with their legal obligation, and judicial directions, to the effect that they are not to undertake their own research, and are required to make their decision based upon the evidence presented in court.[16]  Their Honours referred to several judicial endorsements of the assumption that jurors act upon the directions they are given, and can be relied upon to put aside prejudicial material that does come to their attention.[17]  Their Honours added:[18]

    This confidence in the corporate integrity of juries, however, does not mean that the law should abandon its traditional role of protecting them from events which put this integrity to the test.  This role has relied upon the familiarity of the media with the restraints of the law of contempt and their respect for these constraints.  It has also relied upon the power of the court to make orders restraining publications which might breach these restraints.  In the case of such an order, there will often be the question as to its necessity, and as to its ambit; an order should not be made unless this be necessary and, if made, it must be no wider in its terms and its duration than is necessary to ensure that, as far as possible, the apprehended risk to the pending proceeding is removed.

    [15]   Mokbel at [67].

    [16]   Mokbel at [68].

    [17]   Mokbel at [71]-[72], referring to General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68 at [54]; John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at [103].

    [18]   Mokbel at [73]; see also the observations to similar effect at [90].

29. Warren CJ and Byrne AJA then addressed the necessity and utility of the internet order that had been made on 21 August 2009.  The majority noted the evidence to the effect that Google searches of the terms “Mokbel” or “Tony Mokbel” produced 522,000 search results; that many of these publications were from locations that were interstate or overseas, and that such publications could be easily accessed regardless of the searcher’s location; that the applicants’ publications were only available by searching, rather than appearing as current news stories to those who visited the relevant sites; and that even if the applicants were to remove their publications, the material may still be available by reason of it being cached on other websites.[19] 

    [19]   Mokbel at [74]-[79].

30. Their Honours noted the trial judge’s observation that the articles published by the applicant media outlets were likely to have been of particular credibility and hence more likely to have had an impact on jurors than articles on less respectable websites.  The majority were not persuaded that there was evidence to support this proposition.  Further, their Honours considered it significant that if the articles put up by the responsible media were to be taken down, then it may be supposed that this would give greater prominence for the searcher to those articles put up by less responsible outlets.[20]

    [20]   Mokbel at [84]-[86].

1. Warren CJ and Byrne AJA also noted that over the preceding years there had been hundreds, if not thousands, of articles in the newspapers circulating in Victoria with references to Mr Mokbel, with many of them being in terms adverse to him (albeit that this material would no longer be accessible except to those who searched for it, for example, at a library).[21]  Their Honours added that it was exceedingly likely that most or many members of the jury panel when assembled would have some knowledge of Mr Mokbel’s antecedents and reputation from newspapers and electronic media published over the preceding years, albeit that these were matters which the trial judge could address by instructing the jury about their obligation to try the case only on the evidence.[22]

   [21]   Mokbel at [80].

   [22]   Mokbel at [82].

2. Their Honours mentioned the trial judge’s reluctance to accept “a King Canute type argument”, being an argument that drew an analogy between the futility of ordering the removal of articles online while the information remains readily available elsewhere in the public domain, and King Canute’s order to the sea to stop the rising tide.  While accepting that a trial judge should always do what he or she can in order to protect the integrity of its process, and the right of the accused to a fair trial,[23] their Honours were not ultimately persuaded that the internet order was appropriately made:[24]

   We respectfully doubt the necessity for making that part of the order requiring the applicants take down the material from their websites provided the articles, the subject of the order, were no longer sufficiently current or were not presented in such a way as to be forced upon a visitor to the site who was not searching for them.  We are of the opinion that a juror in this case would not be likely to have inadvertently come across material adverse to Mr Mokbel which was archived and not readily available to such a visitor.  Nor do we readily accept that a juror would deliberately set about searching for such material in defiance of the trial judge’s warning and direction.  Moreover, if, as the evidence shows, the removal of the offending material did not prevent a determined searcher from accessing the same material from a cached website, it cannot be said that the order was necessary for the protection of the court process with respect to Mr Mokbel’s pending trials.  In any event, in its terms, the order which deals with “any articles containing reference to Antonios Mokbel” went far beyond that which might reasonably be required to protect that process.  We conclude that the circumstances before his Honour did not disclose a necessity for the making of this part of the internet order.  This part of the order should, therefore, be set aside.

   [23]   Mokbel at [90].

   [24]   Mokbel at [94].

3. Having held that the part of the order requiring that existing publications be taken down should be set aside, theirs Honours added that the part of the order addressing future publications exceeded what might reasonably be required, and so should also be set aside.[25]

   [25]   Mokbel at [95].

4. Buchanan JA dissented.  His Honour agreed with the majority’s conclusion that the inherent powers of the Court extended to a power to make a take-down order of the type made.[26]  His Honour added:[27]

   For present purposes, it may be assumed that the Supreme Court cannot make orders binding upon the world at large.  Even if orders directly bind only the parties, a suppression order not in terms directed to anyone in particular does in effect bind those who receive notice of the orders in that “if the ruling was necessary in the interests of justice and it would be apparent to anyone who knew of it that the ruling would be frustrated by an act outside the court, the act would be a contempt”.

   [26]   Mokbel at [122].

   [27]   Mokbel at [123] (omitting citations).

5. Buchanan JA noted the matters put in support of the contention that the internet order would lack utility.  However, his Honour said that there was no doubt that the material ordered to be taken down was prejudicial to Mr Mokbel.  His Honour considered that the Court should do what it can to prevent or curtail any threat to Mr Mokbel’s right to a fair trial.[28]  Not only was his Honour concerned by the prospect of a successful appeal permitting the reinstatement of this material and thereby giving it a “new lease of life”,[29] but he was also satisfied that the trial judge’s order was appropriate.  His Honour explained:[30]

   In my opinion, the trial judge did not err.  There could be no doubt that the material the subject matter of the orders was prejudicial to the first-named respondent.  The material already published had been sensational and its publication had been widespread and intensive.  I do not consider that the chance that a juror may not have gained access to the applicants’ websites removed the necessity of taking all reasonable steps to ensure a fair trial by suppressing material which in practical terms announced the first respondent’s guilt of the crimes with which he was charged.  His Honour reasonably believed the orders to be necessary in order to serve the ends of justice.

   [28]   Mokbel at [125].

   [29]   Mokbel at [125].

   [30]   Mokbel at [130] (omitting citations).

6. The New South Wales Court of Criminal Appeal has addressed take-down orders in the three subsequent cases of Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim,[31] Nationwide News Pty Ltd v Qaumi[32] and AW v The Queen.[33]

   [31]   Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52.

   [32]   Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384.

   [33]   AW v The Queen [2016] NSWCCA 227.

7. In Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (Ibrahim),[34] the District Court, in criminal proceedings before it, made interlocutory orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Suppression Orders Act) that purported to prevent, within Australia, the publication of any material containing any reference to any other criminal proceedings or alleged unlawful conduct in which the accused persons were involved.  Various media organisations appealed these orders.

   [34]   Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52.

8. The Court of Criminal Appeal (Bathurst CJ, Basten and Whealy JA) allowed the appeal and set aside the orders.  Basten JA wrote the lead judgment.  Bathurst CJ agreed and added some observations of his own.  Whealy JA agreed with both of them.

9. Basten JA noted that the order that had been made went beyond the suppression of material disclosed in court proceedings in that it covered media articles concerning not only previous criminal proceedings involving the accused, but also a police investigation of the accused.  However, it was able to be made under the Suppression Orders Act, because that Act empowered the Court to make suppression orders in respect of not only evidence given in court proceedings (s 7(b)), but also material tending to reveal the identity of, or otherwise concerning, any party to or witness in proceedings (s 7(a)).[35]  It empowered the Court to do so in circumstances where, relevantly, an order was necessary to prevent prejudice to the proper administration of justice (s 8(1)(a)).

   [35]   Ibrahim at [36].

10. After making some observations about the meaning of “publication” for the purposes of the Suppression Orders Act, Basten JA turned to consider the meaning of “necessary” within the context of s 8(1)(a) of the Suppression Orders Act, and the scope of the Court’s power to prevent threatened interference with a trial.  As to the former, his Honour said:[36]

    The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry.  Similarly, prevention will involve matters of degree:  the proposed order may diminish a risk of prejudice or it may obviate the risk entirely.  All of these variables may affect what is considered “necessary” in particular circumstances.

    [36]   Ibrahim at [46].

11. His Honour noted that it was not uncommon for orders to be made preventing the publication of material revealed in the course of one proceeding but which is capable of interfering with another proceeding (for example, in the case of re-trials following successful appeals, or in cases where further charges are pending).[37]  While raising different considerations, his Honour observed that such orders might also be made where it is sought to prevent publication of material not derived from a legal proceeding, but which is capable of interfering with one.[38]

    [37]   Ibrahim at [52]-[55].

    [38]   Ibrahim at [55].

12. Basten JA considered that there was no reason in principle why the Court’s inherent jurisdiction to protect its processes would not have permitted an order which prohibited public access to existing material (positing the unlikely event of a library holding a past issue of a newspaper or magazine that might have been thought to present a threat to a fair trial).  His Honour accepted that the Court would have power to make an order that there be no public access to that material until the conclusion of a trial, and added that an order preventing access to a publication on a website was no different in kind, and would clearly fall within the scope of the Suppression Orders Act.[39]

    [39]   Ibrahim at [61].

13. Basten JA then referred to the decision of the Victorian Court of Appeal in Mokbel where it had been accepted that the Court had power to make a take-down order pursuant to its inherent jurisdiction but held, by majority, that the order sought in that case was not necessary.  However, his Honour also referred to two first instance decisions in New South Wales where judges had distinguished Mokbel, and had taken the view that it was appropriate to make take-down orders in relation to material available on the internet; namely, the decisions of Price J in R v Perish[40] and Hulme J in R v Debs.[41] In the former, Price J had taken the view that the inability of the Court to ensure the removal of all offending material did not lead to a conclusion that an order would be futile,[42] and added:[43]

    Although I accept that the jury will abide by my directions I consider that I should do all that I can to assist them in making their task easier.  Notwithstanding the age of the articles, their immediate accessibility on the applicants’ websites by keying in the names of the accused causes, in my opinion, a real risk of prejudice to the accuseds’ right to a fair trial.

    [40]   R v Perish [2011] NSWSC 1102.

    [41]   R v Debs [2011] NSWSC 1248.

    [42]   R v Perish [2011] NSWSC 1102 at [44].

    [43]   R v Perish [2011] NSWSC 1102 at [55].

14. Basten JA then addressed the applicants’ challenges to the order under appeal in Ibrahim.  His Honour said that there were problems with the form of the order.  It was not directed to any person or persons. And given that the evidence revealed that material caught by the order would remain on the internet even if the applicant media organisations removed the material from the sites they controlled, there were serious questions about whether the whole range of organisations which provide access to the internet, including service providers which make available search engines permitting access to such material, might be caught by the terms of the order.  His Honour expressed doubt as to whether the proper administration of justice with respect to a trial to occur in Sydney could justify an order preventing residents of other locations around Australia from having access to the material, even for a period of time.  His Honour also noted the prospect that such material might in any event continue to be available from sources outside of Australia.[44]

    [44]   Ibrahim at [72]-[75].

15. On the topic of futility, Basten JA said:[45]

    An order will also fail the necessity test if it is futile.  An order will not necessarily be futile because material is available otherwise in cached form, from which it may be removed once the source page has been removed, or is available on websites overseas.  The mere fact that a search has revealed many thousands of “hits” does not necessarily mean that offending material has been readily located.  It is necessary to refer to items which have been given priority in response to that search.

    [45]   Ibrahim at [76].

16. In addressing the relevance of jurors’ behaviour to the necessity of an order, his Honour added:[46]

    Further, the test of necessity will not readily be satisfied without proper consideration as to whether a jury is likely to abide by the directions it will be given to decide a matter only by reference to the material called in evidence and without carrying out any investigations themselves.  Circumstances may differ.  A juror might be thought to be more likely to look for offending material, despite a direction, if such material is of recent origin and if he or she has some recollection of its existence, than in other circumstances.  This is a matter for consideration by each judge asked to make such an order.

    [46]   Ibrahim at [77].

17. Basten JA was not ultimately satisfied that the order would be sufficiently effective to meet the test of necessity:[47]

    As a matter of construction, that which is ineffective cannot be described as “necessary”.  The orders made in the District Court were ineffective for two reasons.  First, to be effective they had to bind numerous parties who were not before the Court.  Indeed, it is not possible to know, on the evidence, who those parties are.  They will either include those in control of the content of websites throughout the world which may contain the offending material, or those who operate search engines, or both categories.  Secondly, even if it were possible to identify all relevant parties, enforcement against any party not resident in or operating from New South Wales would be impracticable, if not impossible.  Accepting the evidence that cached material might not provide a source of access once the original document were removed, it remains unclear as to how many websites containing the relevant information have it in cached form.  Accordingly, the evidence failed to demonstrate that the orders would be effective.

    As a matter of principle, to make the orders effective, material must either be removed from any website globally to which access can be had from New South Wales or there must be an ability to prevent access by people living in New South Wales.  The evidence did not disclose that either of these was a realistic possibility.  Certainly the orders made no attempt to identify any such possibility.

    For these reasons, the orders were properly described as ineffective and therefore were not necessary. As they did not satisfy the ground identified in s 8(1)(a) of the Suppression Orders Act, they should not have been made. …

    [47]   Ibrahim at [78]-[80].

18. Basten JA concluded his reasons with the following more general observations about take-down orders:[48]

    It is something of an irony that the applicants in the present case are, on one view, the only people against whom an order could properly have been made. Whether they were aware of the offending material at the time the order was made is not clearly revealed by the evidence. They are now aware of it and, in any event, it has apparently been removed to the satisfaction of the Director and the accused persons.

    An order under the Suppression Orders Act should be in a form which would be appropriate in the inherent jurisdiction of the Supreme Court, to prevent an apprehended breach of the sub judice principle. Further, the test of necessity will not usually be satisfied unless a request has been made to the parties thought to be in breach to remove the offending material and who, after a reasonable opportunity, have failed, or have indicated they do not intend, to take that step.

    The State law constrains the circumstances in which and the form of order which can be made: the order must be "necessary" to prevent prejudice to the proper administration of justice. For an order to be necessary, the general law principles of sub judice contempt must be thought, in particular circumstances, to be inadequate in themselves. That may be because there is a dispute between one or more of the parties to the criminal proceedings and the publisher as to whether the material has the offending tendency. Other forms of dispute could be envisaged: for example, a dispute as to whether a particular publisher has the legal authority to remove material identified on a particular website.

    Similarly, a view must be formed that potential jurors may obtain access to such material, if not removed, or that empanelled jurors may be disinclined to accept directions, backed by criminal sanctions, not to seek access to such material. Absent some basis for considering that a specific order is necessary in support of the general law principle, there would be no necessity for such an order.

    It is not necessary for present purposes to consider the extent to which a pre-emptive order could be made in respect of a proposed publication or in respect of identified material which is available for public access and under the control of a specific individual. The present order is generic in effect, refers to no specific material, nor to any identified website or controller. If invalid because beyond the power conferred by s 8, no party suggested it could be severed in part, so as to leave a valid order.

    [48]   Ibrahim at [97]-[101].

19. The Court of Criminal Appeal in New South Wales next considered take-down orders in Nationwide News Pty Ltd v Qaumi (Qaumi).[49]  In that case, five men were charged with a number of serious offences, including the murder of a Mr Hamzy, and conspiracy to murder a Mr Antoun.  The charges were said to have arisen in the context of a ‘turf war’ between two rival criminal groups.  The trial judge ordered that certain charges on the indictment be severed and that the charges relating to the murder of Mr Antoun be tried separately, following completion of the trial relating to the murder of Mr Hamzy. 

    [49]   Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384.

20. The trial judge made an order under s 7 of the Suppression Orders Act prohibiting the publication of the evidence and submissions in the Mr Hamzy murder trial until the conclusion of the Mr Antoun murder trial (referred to as the non-publication order) on the basis of his Honour’s view that the media coverage of the former was likely to be “prominent, dramatic and sustained”, and inimical to the accused men’s fair trial for the Mr Antoun murder.  The trial judge also made orders directing certain media companies to remove certain articles from their respective websites (referred to as the take-down orders). The media companies sought leave to appeal both the non-publication order and the take-down orders.

21. In joint reasons, the Court (Bathurst CJ, Beazley P and Hoeben CJ at CL) upheld the non-publication order, but set aside the take-down orders. 

22. In relation to the take-down orders, the Court noted the trial judge’s finding that there were several categories of articles (being articles that included references to the alleged murder of Mr Antoun, to one of the accused having committed previous killings, and to the criminal history and propensity for extreme violence of another of the accused) that had the capacity to influence a juror who read and digested the material.[50]  The Court also noted that the trial judge had considered matters including both the potential futility of a take-down order having regard to the fact that some articles had been extensively reproduced on other websites, including on overseas websites beyond the reach of the jurisdiction of the Court; and the impact of directions to the jury.

    [50]   Qaumi at [79].

23. On the topic of futility, [51] the Court noted the trial judge’s observations to the effect that the mere fact that material might remain available on the internet, including through overseas sites, did not necessarily mean that the orders would be futile;[52] and the trial judge’s view (despite the evidence suggesting that a Google search of the name of one of the accused produced 33,000 results, such that the removal of approximately 25 articles might be said to be merely “scratching at the surface”) that there was some evidence from which it could be inferred that removal of the most potentially prejudicial articles would have some effect.   The trial judge had also observed in this context that he did not consider that it had been suggested in Ibrahim that the first instance decisions in R v Perish and R v Debs were wrong.

    [51]   Qaumi at [83]-[86].

    [52]   Relying upon the observations of Basten JA in Ibrahim at [76], and Price J in R v Perish at [44].

1. While Google is the dominant search engine in Australia, there are of course several other search engines that may be used to access information on the internet.  There is no evidence as to how these search engines operate, but there is equally no evidence to suggest that cached content available through these search engines would be available for any extended period of time after the removal of the underlying articles by their publishers.

2. On the basis of the above, and in particular the availability of cached material, the effectiveness of an order made on 19 July 2021 might have been questionable in circumstances where the re-trial was due to commence the following day.  However, the fact that the trial was adjourned for a week, and the evidence of the intervening steps by Mr Penhall’s solicitor to address the cached references, give reason to believe that the order will have some impact in removing the adverse material published by Australian media organisations from its availability to the casual searcher of the internet.

3. I have to this point been focussing on the effectiveness of the take-down order in addressing access to the articles published by what might be described as ‘mainstream’ media organisations within Australia, including the appellant publishers.  The evidence reveals that there are other publishers responsible for at least some of the articles that are accessible by fairly basic searches, and contain some reference to the adverse material.  These include what might be referred to as ‘non-mainstream media’ publishers in Australia, as well as overseas publishers.  The evidence is that Mr Penhall’s solicitor has made some efforts, with some success, to have articles published by the former removed.  But there is no reason to think that there will be any ability to remove the articles published by overseas publishers.  While the assistance of Google might be enlisted to ‘block’ access to such material through its search engine, this is quite a different process to that contemplated in respect of cached references to removed material.  The evidence does not provide any basis to think that there is any realistic prospect of this overseas content being removed or blocked in a timely way.

4. In addition to the likelihood that at least some of the adverse material will remain accessible, the appellant publishers’ counsel pointed to the risk, adverted to by the Court in Mokbel,[106] that the removal of the content referable to the appellant publishers and other mainstream Australian media organisations may have the unfortunate consequence of increasing the relative prominence of some of the articles attributable to other, potentially less reliable, publishers whose articles have not been removed.  While I accept that there may be some force in this suggestion, and attach some weight to it, it is largely a matter of speculation as to whether, and to what extent, this might occur.  Certainly, the state of the evidence does not enable me to be precise.

   [106] Mokbel at [84]-[86].

5. In summary, I am satisfied on the evidence before this Court (as to the steps taken to contact publishers of the adverse material, as to the Google searches undertaken both before and since the take-down order was made, and as to the prospect of cached articles and their associated snippets disappearing from the search results) that the take-down order will have a material impact in reducing the availability of the adverse material concerning Mr Penhall.  While some of that material will likely remain available to the determined searcher, a casual searcher (such as the misguided juror, or a person communicating with an innocent juror) will be materially less likely to become aware of such material.

6. Further, in my view, even if a juror were to become aware of some references to aspects of that material, in my view there nevertheless remains some utility in ensuring that he or she does not become aware of the detail of this material, such as is contained in the articles published by the appellant publishers and associated entities (two of which were attached to Mr Henderson’s affidavit and summarised earlier in these reasons).  Indeed, as counsel for Mr Penhall on the appeal informed this Court, Mr Penhall’s main concern is not with the bare references to his earlier trial for the 2017 charge of murder.  Rather it is with the references in more detailed articles which either draw, or invite a reader to draw, links between Mr Penhall’s affiliation with the Hells Angels and his involvement in the 2004 killing of a Gypsy Joker, the 2008 ambush, and the 2017 killing of Mr Norris.

7. Finally, I come to a matter that was, in my view, of some significance in Mokbel.  The evidence in that case demonstrated that the media coverage of Mr Mokbel had been so prolific that the adverse material had in effect become embedded in the public consciousness.  In that context, even if a take-down order would have been effective in materially reducing the ongoing availability of such material on the internet, this would have done nothing to address jurors’ knowledge of the adverse material by reason of their awareness of the earlier widespread publicity about the same.

8. 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

9. 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.

10. 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.

11. 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.

12. It may be doubted whether the present order would have been materially effective when initially made only the day prior to the anticipated commencement of the re-trial.  However, on the basis of the delayed start of that trial, and the further evidence presented to this Court in support of the effectiveness of the order, I am satisfied that this was an appropriate case in which to make a take-down order. 

13. Given the nature of the matters in issue on Mr Penhall’s re-trial, there was a real and significant risk of the adverse material coming to the attention of jurors, and influencing jurors who become aware of it.  Whilst an important consideration, I am not satisfied that the directions that will no doubt be given to the jury will be an entirely adequate safeguard against this risk.  Further, while the evidence is not as clear as it might have been, I consider it permits me to conclude that the take-down order will have a material effect in reducing the availability of the adverse material on the internet and hence in reducing the risk of it coming to a juror’s attention.  In summary, this is a case where the evidence supports the existence of a sufficient risk of prejudice to 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.

14. For these reasons, I would dismiss the appeal.

15. LIVESEY JA:  This appeal only concerns what has been described as a “take‑down” order, made just before a retrial, in the wake of a mistrial during which a juror revealed that she had been told by her son that she was “on a bikie case” and that she should “get off the case”.  This information came from a social media post.

16. The question for this Court is whether, in the circumstances of this case, there is sufficient utility in a take-down order to warrant making it.  I gratefully adopt the careful and comprehensive identification by Doyle JA of the relevant background circumstances and authorities:

    1.I agree that the breadth of the order made in this case goes beyond the proper scope of s 69A of the Evidence Act 1929 (SA) because it captures material beyond “specified evidence or of any account or report of specified evidence”.[108] 

    [108] See the definition of “suppression order” in s 68 of the Evidence Act 1929 (SA).

    2.This order therefore depends, in part at least, upon the exercise of this Court’s inherent jurisdiction or power. It follows that the right of appeal probably arises under s 50 of the Supreme Court Act 1935 (SA) and not merely under s 69AC of the Evidence Act 1929 (SA).

    3.It remains an open question whether an error of the kind described in House v The King must be demonstrated for the purposes of an appeal pursuant to s 69AC of the Evidence Act 1929 (SA).[109]  The appellant in this case proceeded on the basis that it was necessary to demonstrate error of that kind.[110] Whilst s 69A sets out a number of matters to which the Court must have regard, such as whether the Court is satisfied that a suppression order should be made to prevent prejudice to the proper administration of justice, the power to make the order is ultimately expressed in a manner that suggests the exercise of a discretion: “the Court may … make such an order”. Whether these words suggest the exercise of a discretion or are merely permissive need not now be determined.

    [109] House v The King (1936) 55 CLR 499, 504-505; D v The Director of Public Prosecutions(Cth) (2018) 131 SASR 1, [54]-[56] (Kourakis CJ, Blue and Doyle JJ).

    [110] It has also been held that an appeal against the making or refusal to make a suppression order under the Evidence Act 1929 (SA) proceeds as a hearing de novo, Channel Seven Adelaide v An Accused (2008) 103 SASR 459, 463 [11] (Bleby J), as is the case in New South Wales, see eg Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, [6] (Bathurst CJ).

    4.I accept, as Doyle JA points out, that the approach required of the appeal court under s 69B of the Evidence Act 1929 (SA) might not necessarily be the same in the case of an appeal against an order made in the exercise of the Court’s inherent jurisdiction or power.

    5.Where the relevant order has been made in the exercise of the Court’s inherent jurisdiction or power, the question is whether an order is necessary to prevent prejudice to the proper administration of justice, particularly so as to prevent prejudice to the accused’s right to a fair trial.[111]

    [111] News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, [48]-[55], [67], [68] (Warren CJ and Byrne AJA), [122] (Buchanan JA, in dissent as to the outcome).

    6.In the absence of submissions from the parties, this is not the proper case to consider whether the breadth of the Court’s inherent jurisdiction or power to make a suppression or take-down order may be affected by the operation and effect of Part 8 of the Evidence Act 1929 (SA):[112]

    [112] Assistant Commissioner Michael JamesCondon v Pompano Pty Ltd (2013) 252 CLR 38, [42] (French CJ). See also Georganas v Barkla [2021] SASC 47, [200]-[208] (Livesey J).

    … the nature and purpose of those [inherent] powers indicate that they are not, as a rule, displaced or abrogated by general words in a statute nor by statutory provisions or rules which overlap with them.  Rich J said in Cameron v Cole:[113]

    “[I]n the absence of clear words, a statute should not be treated as depriving a court of the inherent jurisdiction possessed by every court to ensure that trials before it are conducted in accordance with the principles of natural justice.”

    Early in the life of this Court Griffith CJ remarked that[114]: "Rules and forms of procedure are not ends in themselves, but means to an end, which is the attainment of justice." It follows from that uncontroversial proposition, as Mr Keith Mason observed in an article on the topic of inherent jurisdiction in the Australian Law Journal:[115]

    “that the mere fact that a statute or rule of court addresses itself in a particular way to a particular matter does not usually exclude by implication a superior court's wider inherent powers relating to that matter if they are appropriate.”

    7.The appeal is by way of rehearing, which may be determined on evidence supplemented by the parties, as has occurred in this case.[116]  It may be doubted whether the appeal court must exercise “appellate restraint” in the sense that error of the kind that might vitiate a discretionary decision must first be shown. Rather, here the “general standard of appellate review” is more likely to be “correctness” in the sense explained in Warren v Coombes.[117]  Therefore, I agree with Doyle JA that, in this case, the appeal turns on this Court’s view about whether a take-down order should be made.

    8.I also agree with Doyle JA that the take-down order does not interfere with reporting of the retrial or with the principle of “open justice”, and that it is important to recognise that it will only operate for a specified period.

    [113] Cameron v Cole (1944) 68 CLR 571, 589.

    [114] Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492, 504.

    [115] Keith Mason, "The Inherent Jurisdiction of the Court" (1983) 57 Australian Law Journal 449, 457. See, also, the authorities there cited.

    [116] Minister for Immigration v SZVFW (2018) 264 CLR 541, [31] (Gageler J).

    [117] Warren v Coombes (1979) 142 CLR 531, 551, cited by Gageler J in Minister for Immigration v SZVFW (2018) 264 CLR 541, 559-560, [41].

17. There was no dispute between the parties that the “adverse material” the subject of various internet articles and reports is prejudicial.  As this case demonstrates, it is the kind of material that may lead to a mistrial.  Indeed, it is the kind of material, to the extent that it is capable of being led as evidence, that might be made the subject of an application that it be excluded in the exercise of the discretion recognised in R v Christie because it is more prejudicial than probative,[118] as well as submissions about “discreditable conduct evidence” within the meaning of Part 3, Division 3 of the Evidence Act 1929 (SA).[119]   

    [118] R v Christie [1914] AC 545 and Police v Dunstall (2015) 256 CLR 403, [26] (French CJ, Kiefel, Bell, Gageler and Keane JJ), [60] (Nettle J).

    [119]  See, for example, R v Garner; R v Webb [2021] SASCA 68, Kroni v The Queen [2021] SASCFC 15.

18. There are two matters which, in my view, determine whether a take-down order should be made.[120]  The first is an evaluation of the extent to which a jury is likely to abide by directions made by the trial Judge.  The second matter is the efficacy of, or necessity for, the order: an order is not necessary “if it is futile”, and an order “which is ineffective cannot be described as ‘necessary’”.[121]  These matters are interrelated.  They must be determined having regard to the relevant authorities and on the basis of the evidence now before this Court. 

    [120] See, for example, AW v The Queen [2016] NSWCCA 227, [16]-[18] (Payne JA, with whom Campbell and Wilson JJ agreed).

    [121] Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, [76]-[77] (Basten JA with whom Bathurst CJ and Whealy JA agreed). Whilst these observations were made in the context of the relevant legislation, it was not suggested to this Court that similar considerations were not also relevant to the exercise of the Court’s inherent power.

19. The confidence traditionally reposed by the Court in the capacity of jurors to abide by directions and to determine guilt or innocence on only the evidence properly admitted before the Court is of long-standing.[122]  That approach was considered in Dupas v The Queen, a case where the High Court refused a stay, emphasising the capacity of the trial Judge to overcome the risks posed by prejudicial media coverage:[123] 

    Nettle JA[124] based his decision upon the footing that to grant an indefinite stay “would be to recognise that the media has the capacity to render an accused unable to be tried” and this would deny the “social imperative” that an accused be brought to trial.

    There is an important point here. It is often said that the experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. The point was made as follows by Hughes J, with the endorsement of the English Court of Appeal, in R v Abu Hamza:[125]

    “Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof.”

    In his reasons for dismissing the stay application, which are extracted in part and described above, Cummins J used similar terms with respect to the conduct of jury trials in Victoria.

    [122] News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, [68]-[72] (Warren CJ and Byrne AJA), citing John Fairfax v District Court (NSW) (2004) 61 NSWLR 344, [103] and General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68, [54].

    [123] Dupas v The Queen (2010) 241 CLR 237, [25]-[26]. See also R v Perre [2019] SASCFC 100, [91]‑[100] (Parker J, with whom Nicholson and Doyle JJ agreed).

    [124] R v Dupas(No 3) (2009) 198 A Crim R 454, [62]-[63].

    [125] R v Abu Hamza [2007] QB 659, 685-686.

1. Nonetheless, the High Court frankly acknowledged that decision-making by juries is not necessarily “unaffected by matters of possible prejudice”: [126]

   Whilst the criminal justice system assumes the efficacy of juries, that “does not involve the assumption that their decision-making is unaffected by matters of possible prejudice”. In Glennon, Mason CJ and Toohey J recognised that “[t]he possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial”. What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused.

   (citations omitted)

   [126] Dupas v The Queen (2010) 241 CLR 237, [29].

2. Accordingly, as the High Court emphasised, the existence of “extensive pretrial publicity” does not mean that directions made by a trial Judge cannot address “the unfair consequences” of that publicity:[127]

   There is nothing remarkable or singular about extensive pre-trial publicity, especially in notorious cases, such as those involving heinous acts. That a trial is conducted against such a background does not of itself render a case extreme, in the sense that the unfair consequences of any prejudice thereby created can never be relieved against by the judge during the course of the trial.

   A further consideration is the need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial,[128] the “social imperative” as Nettle JA called it, as a permanent stay is tantamount to a continuing immunity from prosecution.[129] Because of this public interest, fairness to the accused is not the only consideration bearing on a court’s decision as to whether a trial should proceed.[130]

   [127] Dupas v The Queen (2010) 241 CLR 237, [36]-[37].

   [128] R v Glennon (1992) 173 CLR 592, 598 (Mason CJ and Toohey J).

   [129] R v Glennon (1992) 173 CLR 592, 599 (Mason CJ and Toohey J).

   [130] Jago v District Court (NSW) (1989) 168 CLR 23, 33 (Mason CJ).

3. In the circumstances, it may safely be assumed in this case that there have been and will be “thorough and appropriate directions to the jury” by the trial Judge.[131] A trial conducted in those circumstances remains fair notwithstanding the scope for any lingering uncertainty about whether all jurors will invariably comply with the directions given and their obligations,[132] and regardless whether one might describe the juror potentially exposed to prejudicial material as “defiant”, “misguided” or “innocent”. The ubiquity of mobile phones and personal communication devices excites understandable concern about the conduct of jury trials. It is not now possible to simply sequester a jury and expect it to remain immune from all risk of exposure to prejudicial material. Far from undermining the efficacy of the jury, this feature of modern life 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. It is not without good reason that this Court must proceed on the basis that this is so: [133]

   The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges.  It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.  

   [131] Dupas v The Queen (2010) 241 CLR 237, [38].

   [132] AW v The Queen [2016] NSWCCA 227, [16]-[18] (Payne JA, with whom Campbell and Wilson JJ agreed): “a remote risk” and [61]-[62] (Campbell J, with whom Wilson J agreed): “no reason for supposing that there is any real risk of a juror flouting those directions and embarking on a frolic …”. By contrast, it is “unrealistic to think that it has not happened … and will not in the future”: R v Debs [2011] NSWSC 1248, [32] (Hulme J).

   [133] Gilbert v The Queen (2001) 201 CLR 414, [13] (Gleeson CJ and Gummow J), cited recently in Caleo v R [2021] NSWCCA 179, (Bathurst CJ, with whom Beech-Jones and Adams JJ agreed).

4. As McHugh J has explained: [134]

   The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions.  On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal.  If it was rejected or disregarded, no one – accused, trial judge or member of the public – could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial.  If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state.  Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.  It is of course true that, if a jury persists in returning a verdict that is contrary to law, the trial judge must accept it.[135]  But that only means in Lord Mansfield's words that, although "[i]t is the duty of the Judge ... to tell the jury how to do right ... they have it in their power to do wrong".[136]

   [134] Gilbert v The Queen (2001) 201 CLR 414, [31]-[32] (McHugh J).

   [135] Gammage v The Queen (1969) 122 CLR 444, 451.

   [136] R v Shipley (1784) 4 Doug 73, 170.

5. Whilst there are occasional examples of jury misbehaviour, there are many more examples each day of juries delivering true verdicts based on the evidence before the Court. 

6. That brings me to the utility of a take-down order in this case.  I accept that the Court ought not abdicate its responsibility for ensuring a fair trial, still less abandon its traditional role of protecting juries from events which might put its integrity “to the test”.[137]  I also accept that the inability to ensure the removal of all adverse material does not necessarily lead to the conclusion that a take-down order is futile.[138]  One may readily understand the “not… just… visceral” response to the “King Canute type argument”[139] that making any order is pointless.  Quite apart from suggesting that the Court is impotent, unable protect the right of an accused to a fair trial, it ignores that whether an order should be made must ultimately turn on what is put before the Court.

   [137] News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, [73] (Warren CJ and Byrne AJA), notwithstanding “confidence in the corporate integrity of juries”.

   [138] R v Perish [2011] NSWSC 1102, [44] (Price J).

   [139] R v Cerantonio [2018] VSC 84, [23]-[25] (Croucher J).

7. The Court must determine any application for a suppression or take-down order on its merits, having regard to the evidence before it and the circumstances of each, particular case.  I agree with the observations of Doyle JA regarding the need for careful attention to be given to the timing of an application, as well as the evidence upon which it is based.

8. One must nevertheless start with the proposition that the Court cannot make an order that will bind all publishers of adverse material throughout the world, and it certainly cannot ensure that all of those publishers will comply with any order it makes.[140]  This proposition is not undermined by an expectation that the traditional news media in Australia and South Australia will act responsibly and report on the retrial in an appropriate manner without engaging in any contempt of the Court.  This proposition simply recognises that the powers of the Court, including when dealing with contempt, are necessarily subject to practical limitations.[141] As Basten JA pointed out in Fairfax v Ibrahim:[142]

   As a matter of principle, to make the orders effective, material must either be removed from any website globally to which access can be had from New South Wales or there must be an ability to prevent access by people living in New South Wales.  The evidence did not disclose that either of these was a realistic possibility.  Certainly the orders made no attempt to identify any such possibility.

   [140] General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68, [29] (Warren CJ, Vincent and Kellam J).

   [141] The inherent powers of the Supreme Court are regarded as intrinsic to a superior court of record whose jurisdiction is sometimes said to be unlimited, though there are recognised constraints to the “sound exercise of the discretion”: see J N Taylor Holdings v Bond (1993) 59 SASR 432, 435-436 (King CJ with whom Perry J agreed), 443 (Prior J) regarding the power to make declarations under s 31 of the Supreme Court Act 1935 (SA) and in the exercise of the Court’s inherent power. See also CGU Insurance Limited v Blakeley (2016) 259 CLR 339, [31]-[38].

   [142] Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, [79].

9. As in that case, the take-down order cannot be effective unless it binds a number of 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.  The order made in this case was very broad, probably too broad.[143]  Nonetheless it might also be said that the making of an order, whatever the limits of the Court’s powers of enforcement, has an important normative influence and effect.  The fact that there exists an order means that it may well be heeded by publishers, particularly responsible news media, regardless whether they can be subjected to enforcement processes. 

   [143] Although see General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68, [29] (Warren CJ, Vincent and Kellam J).

10. The issue of utility may therefore turn on questions of fact and degree, depending on the evidence adduced.  In this case the conduct by the parties in “taking-down” the adverse material in this case demonstrates that considerable adverse material has been removed from the internet, whether it be uploaded articles or cached material.  I accept also that one may be describe this as a material reduction in the volume of adverse material.

11. However, notwithstanding the conduct of the parties and various publishers in the days since this take‑down order was made, a very considerable volume of adverse material remains readily available on the internet, and it is not simply cached material.[144] Accordingly, this case is clearer than the cases to which the parties referred in argument.  In those cases, the Courts grappled with the potential future effect of an order. Uncertainties necessarily remained. In this case, the further evidence demonstrates the effect of the order.  It tends to illustrate the submissions made to the trial Judge and to this Court on appeal.[145] The evidence in this case shows that the dissemination of the adverse material simply remains too prominent and too widespread. 

    [144] Nationwide News v Qaumi (2016) 93 NSWLR 384, [89]-[90] (Bathurst CJ, Beazley P and Hoeben CJ at CL) and AW v The Queen [2016] NSWCCA 227, [57]-[58] (Payne JA, with whom Campbell and Wilson JJ agreed).

    [145] For example, that the taking-down of stories by mainstream news media left stories by less responsible media taking greater prominence: News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, [84]‑[86] (Warren CJ and Byrne AJA).

12. For example, initial searches of the internet were conducted in this case on or about 19 July 2021, before the trial recommenced on Wednesday, 28 July 2021. Further searches were conducted on or about 29 July 2021.  The affidavit evidence regarding an “open” Google search of the accused’s name on 29 July produced 265,000 results, being 2,000 more results than when the same search was conducted on 19 July.  Previews of those results included words such as the following: “Jesse Ray Penhall was convicted by a jury of murdering Hells Angel bikie David “Panda” Norris at a trucking business in September 2017”, that “Jessie Ray Penhall appeals murder conviction for killing David Norris.  A notorious Adelaide criminal who clubbed a Hells Angels bikie…”, “Bikie killer appeals his conviction” and “Jesse Ray Penhall… was sentenced to life in prison…”. An attempt to open links enabled access to a Facebook posting and a number of other sites and stories which describe that the accused had been shot 14 times in a “bikie ambush” in 2008, that he had been found guilty of murder, that his conviction had been overturned and that he was to again stand trial for murder. Many of these results were on the second or later pages of results.  Attempts to follow links to a number of stories produced the response, “Page not found”.

13. What may be described as “closed” searches of the accused’s name on 29 July, with or without the additional references to “David Norris” or “Hans Thaller”, resulted in hundreds of results, albeit in each case some hundreds less than had occurred with the same searches on 19 July 2021. 

14. A search of the accused’s name on 30 July 2021 using Microsoft Bing returned more than 30,000 results, including a preview to a site referring to the May 2004 incident at Wallaroo resulting in a Gypsy Joker being killed by two gunshot wounds to the chest, that the deceased’s clubmates were on the verge of war and the accused being handcuffed.

15. Again, whether the postulated juror is described as a “defiant”, a “misguided” or an “innocent” potential recipient of adverse material from outside the courtroom, the requisite risk has not been reduced by the making of a take-down order. 

16. Despite the efforts of the parties and responsible news media, there remains ready access to websites with links to stories concerning the accused, as well as cached descriptions of the adverse material.

17. There may be less results and stories, no longer involving what may be described as the mainstream news media, but many results and stories remain, some on the first page of any search.  The risk remains.  The risk remains both serious and material. 

18. In the circumstances, and with respect, I am unable to agree that the take‑down order should have been made. 

19. In my opinion, the appeal should be allowed.