Director of Public Prosecutions v Lawson (Ruling No. 2)
[2012] VSC 469
•11 October 2012
| THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0071 of 2012
No. 0072 of 2012
No. 0073 of 2012
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW LAWSON CAMERON SANDERSON BENJAMIN VIGO |
---
JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 October 2012 | |
DATE OF RULING: | 11 October 2012 | |
CASE MAY BE CITED AS: | DPP v Lawson & Ors (Ruling No. 2) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 469 | |
---
CRIMINAL PROCEDURE -- Suppression orders -- Separate trials -- Application by accused to prohibit publication of proceedings in first trial until completion of second trial -- R v Cox and Sadler [2005] VSC 526 -- Different accused -- Different alleged victims -- Limited suppression necessary.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A Tinney SC | The Office of Public Prosecutions |
| For the Accused Lawson | Mr I Hill QC with Ms R Shann | Tony Hargreaves and Partners |
| For the accused Sanderson | Mr M Tovey QC with Mr D Dann | |
| For the accused Vigo | Mr G Steward | |
| By leave of the Court for Tran, Levchenko and Fucile | Mr L Carter with Mr S Mukerjea | |
| By leave of the Court for The Age Company and Australian Broadcasting Corporation | Mr C Young | Minter Ellison |
HIS HONOUR:
Background to this ruling
On 3 July 2011, an incident occurred at the Crown Casino in which three patrons were ‘put to the floor’ by Crown Casino security personnel. One of these patrons, Anthony William Dunning lost consciousness during the incident and never regained it, dying on 7 July 2011. The incident has given rise to criminal proceedings which have been separated into two trials by agreement with the Director of Public Prosecutions. The first of those trials is about to commence. The accused in the trial to be heard second have applied for a non-publication order relating to the entirety of the first trial. It is on this application that I now rule.
In summary, the incident unfolded as follows. Dunning was inside the Crown Casino, standing alone outside the Velvet Bar when asked to leave by Matthew Lawson, a member of Crown Casino’s security team. As was the practice, a number of security staff were nearby as this occurred. Dunning had a short conversation with Lawson and proceeded to leave, the security staff in reasonably close proximity. As he was leaving, Dunning came across his friends, Matthew Anderson and Olivia Ferguson. A conversation ensued between them for some minutes, after which Dunning continued to proceed to the exit, with Anderson and Ferguson following. While they were walking towards the exit, one of the security personnel and a supervisor, Quoc Tran said something, though the content of what was said is in issue, and Ferguson slapped his face. Tran then brought Ferguson to the floor. Her partner, Anderson moved towards her and was brought to the floor by two security personnel, Nicholas Levchenko and Jacques Fucile. Dunning, who was walking ahead, then turned around, and the two security personnel closest to him, Cameron Sanderson and Christian Luta grabbed his arms. Dunning pushed out at these personnel and Lawson then took him to the ground. Lawson, Sanderson and Luta restrained Dunning whilst he was on the ground and attempted to move Dunning from his side to his front. A short while later, another member of the security team, Benjamin Vigo, took the place of Luta in this movement and the subsequent restraint of Dunning. Dunning lost consciousness during this incident and died several days later.
In the first trial, DPP v Lawson, Sanderson and Vigo,[1] (“Trial 1”), the first and second accused, Lawson and Sanderson, are charged with the manslaughter of Dunning. The third accused, Vigo is charged with the common assault of Dunning. The issues in this trial will include whether there was an unlawful assault by all accused upon Dunning, and, in relation to the first and second accused, whether any unlawful assault was dangerous and whether it was a substantial cause of Dunning’s death.
[1] S-CR-2012-0071/2/3.
The second trial arising out of this incident, DPP v Tran, Levchenko and Fucile,[2] (“Trial 2”) is fixed for 2 April 2013. The charges in the second trial relate principally to the other two patrons involved in the incident, Ferguson and Anderson. Tran is charged with the common assault of Ferguson (count 1) and Levchenko and Fucile are charged with recklessly causing serious injury to Anderson (count 2). Although the facts in issue in the second trial have not yet been ventilated, it is likely they will include whether the acts of the accused were unlawful. Tran is also charged with the common assault of Dunning (count 3). This charge is based on Tran counselling or procuring an assault on Dunning by Lawson by saying the words “Put him to the ground.” Whether or not Tran said these words is in issue as may be the lawfulness of Lawson’s actions.
[2] S-CR-2012-0074/5/6.
Non-publication orders
On Monday 8 October 2012, Mr Carter of counsel, who appeared with Mr Mukerjea on behalf of Tran, Levchenko and Fucile, sought an order pursuant to s 18(1)(c) of the Supreme Court Act1986 that there be no publication of any of the evidence in the trial of Lawson, Sanderson and Vigo until after verdict is taken in the trial of Tran, Levchenko and Fucile. This application is not supported by the prosecutor, Mr Tinney SC, though he does suggest that certain aspects of the evidence may require suppression to protect the integrity of the next trial. Mr Young of counsel appeared for The Age Company and the Australian Broadcasting Corporation to oppose the application.
The relevant sections of the Supreme Court Act are, in part, as follows:
18 Power to close proceedings to the public
(1) The Court may in the circumstances mentioned in section 19—
....
(c)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.
(2) This section applies to any proceeding, whether civil or criminal.
(3)If an order has been made under this section the Court must cause a copy of it to be posted on a door of the court house or in another conspicuous place where notices are usually posted at the court house.
(4)A person must not contravene an order made and posted under this section.
1000 penalty units or imprisonment for 3 months.
19 Circumstances in which order may be made under section 18
The Court may make an order under section 18 if in its opinion it is necessary to do so in order not to—
(b)prejudice the administration of justice; or
What is sought in this application is an order under s 18(1)(c) on the basis of s 19(b). The Act is not the only source of power to make such orders. As the Court of Appeal has made clear,[3] ss 18 and 19 of the Act “…are not the whole repository of the power of the Court to make suppression orders.” The Court said that there is an inherent jurisdiction to ensure the right to a fair and unprejudiced trial. For such an order to be made, whether by virtue of the powers contained in the Act or by virtue of the Court’s inherent jurisdiction, I must form the opinion that it is necessary.[4] The effect of such an order as sought by Mr Carter would be totally preclude any publication about this trial until Trial 2 is completed, which at this stage seems likely to be six months away.
[3] General Television Corporation Pty Ltd v DPP & Ors [2008] VSCA 49 at [21].
[4] General Television Corporation Pty Ltd v DPP & Ors [2008] VSCA 49 at [21]; The Herald and Weekly Times Pty Ltd and The Age Company Ltd v Carl Williams and Ors [2005] VSCA 189 at [30]-[32].
An important consideration in an application for such orders is the general principle of open justice. Orders impinging upon this general principle must be necessary to ensure a fair trial and go only so far as is necessary. The open justice principle has developed over a significant period[5] but as Hugh J said in John Fairfax & Sons Ltd v Police Tribunal of NSW & Anor:[6]
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule when its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified that open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom.
[5] Scott v Scott[1913] AC 417; Dickason v Dickason(1913) 17 CLR 50; Russell v Russell(1976) 134 CLR 495.
[6] (1986) 5 NSWLR 465.
On whether or not public reporting of a trial needs to be contemporaneous, it is to be noted that in Re S (A Child) (Identification: Restrictions on Publication),[7] Lord Steyn said:
A criminal trial is a public event. The principle ofopen justice puts, as has often been said, the judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the value of the rule of law. (emphasis added)
[7] [2005] 1 AC 593, 607.
In Hogan v Australian Crime Commission,[8] the High Court was concerned with the operation of s 50 of the Federal Court of Australia Act (1976) which empowered the Federal Court at any time during or after the hearing of a proceeding in the Court to make "such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth". The High Court referred to the adjective “necessary” as a “strong word”[9] and went on to observe:
It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some "balancing exercise", the order appears to have one or more of those characteristics.
[8] (2010) 240 CLR 651.
[9] At [30].
In Dupas v R,[10] in dealing with pre-trial publicity in a somewhat different setting – whether or not as a result of that publicity the trial should be stayed as an abuse of process – the High Court posed a test which is at least relevant in applications of this kind given the high standard of necessity required to be established before an order for suppression will be made:
In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is “ such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.”
[10] (2010) 241 CLR 237 at [35].
The parties’ submissions
Mr Carter, in written submissions and in oral argument, put forward three reasons why such an order is necessary within the context of likely extensive media coverage given the coverage of committal proceedings. First, the first trial will contain evidence that is irrelevant to the second trial but likely to prejudice potential jurors due to its graphic nature, such evidence was said to include the closed-circuit television (CCTV) footage, witness accounts and medical evidence; and due to the death of Mr Dunning being “so heavily intertwined” with Trial 2. He noted that these were the same reasons why severance was ordered and unopposed in this matter. Second, there will be evidence led in Trial 1 which relates directly to the indictment in Trial 2, principally the evidence of Ferguson and Anderson. In this regard, Mr Carter also noted that extensive coverage of Trial 1 would allow witnesses in Trial 2 to prepare explanations for any inconsistencies between their observations and that of earlier evidence. Third, the verdicts in Trial 1 would not be admissible in Trial 2, but the publication of them would be prejudicial to the interests of all of the accused in that latter case, particularly so in regard to the charge against Tran relating to Dunning.
When questioned whether any prejudice could be cured by judicial direction, Mr Carter stated that the “degree of prejudice here occasioned by the evidence as to the death and restraint of Dunning is of such a nature that it is unrealistic to expect [so]”.[11] He further noted the remarks of Cummins J in DPP v Williams[12] that we must not ask “psychological impossibilities of juries”.
[11] Transcript, 14.
[12] (2004) 10 VR 348.
Mr Carter placed significant reliance on the ruling of Kaye J in R v Cox and Ors (Ruling No. 7),[13] where his Honour made the kind of suppression order that Mr Carter contends for here. Suppression orders are made by reference to the factual circumstances before the trial judge and analogous cases are of limited assistance. Indeed, an equally relevant case may be that of Benbrika in which Bongiorno J did not order total suppression of the first trial of persons charged with terrorism offences,[14] despite the fact that the same accused faced trial upon a second indictment containing charges so intertwined with the first that a permanent stay of prosecution was ultimately ordered.[15]
[13] [2005] VSC 526.
[14] R v Benbrika (Ruling No. 13) [2007] VSC 543. See also R v Benbrika and ors (Ruling No. 33) [2008] VSC 487.
[15] R v Benbrika & Ors(Ruling No. 3) [2011] VSC 342 (Amended 22/09/2011).
In any event, in my opinion the ruling of Kaye J in Cox is distinguishable. The first thing to note is that the application in that case is that was supported by the Crown. That is not case here. That difference is by no means determinative but it indicates that the detailed familiarity that the prosecutors had with the nature of the evidence in both cases produced a different approach.
In his ruling, Kaye J was of the view that to refuse to make the orders sought by consent would undermine his grant of a separate trial of Cox and Sadler on the one hand and of the Fergusons on the other. That same argument was made in this application. In this case, had the trials not been separated, a single jury would have heard all the evidence including those parts of it which were not admissible against those whose trials had been severed. With respect, that is by no means the same as some of the evidence being published in the media, bearing in mind that those who will be jurors in Trial 2 are not yet aware that they will be and that trial is some 5 or 6 months away. With respect, I do not share a concern that unless orders are made prohibiting the publication of all of the evidence in this trial, the separation of the trials would be undermined.
In his ruling Kaye J also referred to the risk of misreporting which would affect the fairness of the second trial. It is sufficient to say that such a concern is also not one which I share, nor do I believe that the risk of prejudice that might flow from such misreporting would not be amenable to judicial direction.
Finally, his Honour concluded that in the absence of such an order there was a “real risk that the trial might be placed in jeopardy”. The statutory test for the making of an order prohibiting the publication of a report of the whole or any part of a proceeding is whether it is the opinion of the trial judge that such an order is necessary to avoid prejudice the administration of justice. In my opinion, in this case total suppression of the first trial is not necessary to achieve that purpose.
Mr Tinney, for the Crown, submitted that the evidence in Trial 1 was not likely to create prejudice in Trial 2 due to the different focus of the two trials. The first focuses on the death of Mr Dunning and in the second trial, this is unlikely to feature at all. Mr Tinney noted that even in the trial of notorious criminals, we trust the jury system. However, he did acknowledge that some unfair prejudice may be occasioned by the first trial and suggested that some order for suppression could be made including the names of the alleged victims in trial 2, the names of the accused in trial 2 and the CCTV footage.
As to the law, Mr Young for the two media companies emphasised the importance of the open justice principle[16] and recalled that the High Court in Dupas[17] likened to a constitutional fact the concept that “the jury acts on the evidence and in accordance with the directions of the judge”. As to the factual analysis, Mr Young noted that wholly distinct persons are involved on two of the three counts in the second trial and submitted that the impact on potential witnesses was overstated by Mr Carter. He submitted that when these factors are combined with separate trials; proper directions and fair and accurate reporting subject to contempt laws, any prejudice could remedied by some narrow orders, noting that the CCTV footage was suppressed at committal stage.
[16] Hogan v Hinch (2011) 243 CLR 526.
[17] (2010) 241 CLR 237 at [28].
Conclusion
This debate is very much concerned with my judgment of the ability of a jury empanelled in the second trial to exclude from its deliberations anything it may have heard in the media about the trial which is about to commence. At the start of the second trial the jury will no doubt be given clear directions either by me or another judge of this Court that it is crucial that they only determine the issues on the basis of the evidence they hear in the court room. They will each have sworn an oath or taken an affirmation to that effect. After long experience of juries over many years both as counsel and a judge of this Court, I am confident that they will undertake their task in accordance with that oath or affirmation and that they will comply with the legal directions they are given.
In my opinion, given the high standard that must be reached, it is not necessary to make orders preventing the publication of all of the evidence and verdicts in the trial of Lawson, Sanderson and Vigo until the trial of Tran, Levchenko and Fucile is completed at some time in the future, whether 6 months or longer. The prejudice relied on by Mr Carter if such an order is not made is, in effect, that by knowing that security staff at Crown Casino were involved in an incident which involved the death of a patron and, depending upon the verdict, were found guilty of his manslaughter, a jury may impermissibly rely on an assumption that Crown Casino security staff are aggressive or violent or act disproportionately in determining the verdicts in Trial 2. In my opinion, given the different factual bases for the charges and the impact that the CCTV footage will have on the jury in Trial 2, such reasoning is unlikely but would in any event be eliminated by judicial direction.
However, as Mr Tinney accepts, some of the evidence in Trial 1 is particularly emotive and some relates directly to the charges in Trial 2 and may enable or encourage members of the public to prejudge the issues in that case. I therefore agree that, in order to protect the integrity of Trial 2, some orders are necessary without derogating from the principles to which I have referred. They are as follows:
That pursuant s 18(1)(c) of the Supreme Court Act, until verdict is taken in the trial of Tran, Levchenko and Fucile, the publication of the following evidence in the trial of Lawson, Sanderson and Vigo is prohibited:
(1)All closed-circuit television footage of the incident occurring at Crown Casino on 3 July 2011;
(2)All images of the post mortem procedures concerning Anthony William Dunning;
(2)The names, addresses, occupations or facial image of the following individuals:
(a)Matthew Anderson;
(b)Olivia Ferguson;
(c)Quoc Tran;
(d)Nicholas Levchenko; and
(e)Jacques Fucile.
9
0