Advertiser Newspapers Pty Ltd v Penhall

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

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

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