Director of Public Prosecutions v Pell (Review of Suppression Order)
[2018] VCC 2125
•14 December 2018 First revision: 20 December 2018 [Footnote 2]
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not restricted Suitable for Publication |
Case No. CR-18-00902
CR-18-01133
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEORGE PELL |
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JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 December 2018 | |
DATE OF RULING: | 14 December 2018 First revision: 20 December 2018 [Footnote 2] | |
CASE MAY BE CITED AS: | DPP v Pell (Review of Suppression Order) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2125 | |
REVIEW OF SUPPRESSION ORDER RULING
REVISED EX TEMPORE REASONS
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Subject: Ruling – Review of Suppression Order.
Catchwords: Proceeding Suppression Order – Remains necessary to prevent a real and substantial risk of prejudice to the proper administration of justice – Order is not futile - Chaarani & Anor [2018] VSCA 299 considered.
Legislation Cited: Open Courts Act 2013.
Cases Cited:DPP v Pell (Suppression Order) [2018] VCC 905; Chaarani & Anor [2018] VSCA 299; Nationwide News v The Queen [2018] VSC 572; Dupas v The Queen (2010) 241 CLR 237; News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248. Commonwealth Director of Public Prosecutions v Brady & Ors (2015) 252 A Crim R 50.
Ruling: Proceeding suppression order confirmed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Judd QC with Mr M Gibson QC and Ms A Ellis | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr R Richter QC with Ms R Shann | Galbally & O’Bryan |
| For the Interveners (The Herald and Weekly Times Pty Ltd & Ors) | Mr S Mukerjea | Macpherson & Kelley |
HIS HONOUR:
Preliminary
1 On Tuesday this week Cardinal Pell was convicted of five sexual offences involving two child (boy) victims. They comprise one offence of sexual penetration of a child under 16 and four offences of an indecent act with or in the presence of a child under 16. Self-evidently these offences are very serious offences. His plea hearing is set down for 4 February 2019. The offences occurred in St Patrick's Cathedral in 1996 and 1997. I shall refer to this as the ‘cathedral trial’ or the ‘cathedral convictions’.
2 Cardinal Pell also faces a further trial involving allegations by three child (boy) complainants from the 1970s about alleged inappropriate touching at swimming pools. Further uncharged offending in relation to a fourth (boy) complainant is sought to be led. Tendency and coincidence evidence notices have been filed seeking cross-admissibility of the evidence. The defences include mistaken identity, accident or misunderstanding. I shall refer to this as the ‘swimmers trial’. At this stage it is my intention to hear legal argument on the swimmers trial in March 2019 with a trial to follow shortly thereafter.
History
3 On 25 June 2018 I made a proceeding suppression order in relation to the prosecution of George Pell concerning both the cathedral trial and the swimmers trial. These reasons should be read with my original reasons delivered on 25 June 2018 granting a proceeding suppression order (‘original reasons’) and the terms of that order.[1]
[1]DPP v Pell (Suppression Order) [2018] VCC 905 (‘original reasons’).
4 This morning, I heard an application by a number of news media organisations (‘the interveners’)[2] to review, vary or revoke my suppression order. As I am giving this judgment effectively ex tempore this afternoon, I do so on the basis that the parties and interveners are familiar with my original reasons.
[2]The interveners who were heard on this application comprised The Herald and Weekly Times Pty Ltd, Nine Network Australia Pty Ltd, Nationwide News Pty Ltd, The Age Company Limited and Macquarie Media Ltd, The Special Broadcasting Service, The Australian Broadcasting Service. Seven Network Australia Pty originally also sought to be heard on this application, but withdrew on Friday 14 December 2018 by telephone call.
5 In short the effect of my suppression order is to prohibit publication of any information relating to the cathedral trial which is now completed, including the convictions which have resulted in the cathedral trial, until after the conclusion of the swimmers trial. I made that order on the basis that it was necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that could not be prevented by other reasonably available means, pursuant to s 18(1)(a) of the Open Courts Act 2013 (‘the Act’).
6 Before proceeding to outline the current reasons in relation to the application to revoke and/or vary the suppression order, I need to outline something of the context to my original reasons back in June of 2018. On the original application for a proceeding suppression order a number of news media organisations, who were represented, appeared before me. This included some, but not all, of the current interveners who have sought to be heard on this current application.
7 None of them then resisted or opposed the making of an order within Victoria. There was an implied acceptance by all the parties, including all the media representatives at the original hearing, that the orders were at least necessary within Victoria, as contemplated by the Act. Certainly no one suggested otherwise despite being given ample opportunity over the course of several days to do so.
8 To be clear, on the original application no argument about the futility of such an order within Victoria was advanced by anyone at any time. Nor were there any arguments seeking any further exceptions to allow publication of other kinds of specific information such as the fact of a conviction if it eventuated in the first trial.
9 My original reasons and the original order always contemplated that one possible outcome of the first of these two trials was that Cardinal Pell would be convicted of sexual offending against children.[3] For essentially the same reasons outlined in my original reasons, in my view, it remains necessary today for the proceeding suppression order to continue in the same terms to prevent a real and substantial risk of prejudice to the proper administration of justice in relation to the conduct of the swimmers trial, that cannot be prevented by other reasonably available means.
[3]Original reasons [39]-[40].
10 Indeed, the fact of a conviction or a finding of guilt in the cathedral trial of Cardinal Pell is all the more reason that a suppression order in the same terms is necessary. If I were to lift the order the swimmers trial would be conducted against the background and within the context of not only the allegations of the cathedral trial, but of convictions of serious child sexual abuse offences in the cathedral trial.
11 As I indicated in my original reasons, such information is extremely, if not overwhelmingly, prejudicial to Cardinal Pell. It would be forensically devastating to Cardinal Pell's ability to run any defence, but particularly one which involves mistaken identity, accident or misunderstanding.
12 For these reasons and the reasons outlined in my original reasons, I remain of the view that any directions I can give to the jury will be ineffectual, at least to some material degree.[4] Giving directions or instructions to the jury to put matters such as a prior conviction for a serious sexual offence to one side, cannot be the answer to the risk of prejudice in question.[5]
[4]Ibid, see [40]-[43].
[5]Obviously enough the findings of guilt by the jury in the cathedral trial are not, in the strict legal sense prior convictions, in that they did not occur prior to his alleged criminal offending in the swimmers trial. So far as the jury is concerned, it is a distinction without a difference. It is a finding of guilty for serious sexual offending against children.
The Interveners arguments
13 I turn to the interveners' arguments made today by Mr Mukerjea, who appeared on behalf of the interveners. I have had the benefit of reading Mr Mukerjea's written submissions and also the benefit of hearing his oral argument eloquently put to me throughout the course of the morning.
14 Essentially the case for the interveners comes down to two arguments.
15 First, that since I made the original proceeding suppression order in June this year the Court of Appeal has handed down a decision of Chaarani & Anor v CDPP[6], which has highlighted and emphasised the great public interest in jury verdicts being published contemporaneously.
[6][2018] VSCA 299 (‘Chaarani’).
16 Second, Mr Mukerjea argues that the maintenance of the current order is inutile or futile, given the influx of reporting overseas regarding Cardinal Pell's convictions in the cathedral trial. To that end, reliance is placed upon two affidavits filed by the solicitor for the interveners which exhibited publicity concerning Cardinal Pell and his convictions, largely published on the Internet and social media websites accessible in Australia on or around 13 December 2018. I will return to that affidavit material shortly. It is submitted by the interveners that the court should not maintain the suppression order that has been rendered idle, ineffectual or futile.
17 I will now deal with each of the two arguments in turn.
The public interest in the publication of a conviction – the Chaarani argument
18 Dealing first with the Chaarani argument. The decision in Chaarani does not change, in my view, the legal landscape in which I made the original suppression order. There is nothing in Chaarani which would drive me to reach a different conclusion or to vary or revoke the original order.
19 Chaarani is distinguishable from the current case. In Chaarani the media had been reporting contemporaneously on the trial in question over a period of months and it was in those circumstances that the trial judge found there was a public interest in the jury verdict being reported on. The Court of Appeal said in Chaarani the following:
That the trial has been fully reported gives rise to a separate consideration of real significance. It is that non-publication of the verdicts in a much publicised trial would be likely to undermine public confidence in the system of criminal justice. There being no scope for a public explanation to be given of the reason for the suppression, those who have been aware of the trial, as very many members of the Victorian community will have been, would be rightly concerned at being denied that information. After all, a jury's verdict is the embodiment, the expression of community's participation in criminal justice. Publication of verdicts is essential to the legitimacy of our system of jury trial.[7]
[7]Chaarani [2018] VSCA 299 [46].
20 By contrast, there has been no contemporaneous and daily publicity of the cathedral trial. The significant consideration which led to the Court of Appeal in Chaarani concluding that the public interest demanded publication of the verdict does not exist in this case. Indeed, the Court of Appeal in Chaarani said this:
Nor is this a case where in anticipation of a subsequent or back to back trial a suppression order was made at the commencement of the first trial to operate until the conclusion of the second trial. If that had been the case, entirely different considerations would arise.[8]
[8]Ibid [45].
21 This very alternative scenario to which the Court of Appeal in Chaarani is referring confronts me: two back to back sexual offence trials against the one accused person, to be conducted separately to ensure he receives two fair trials. To allow publicity of his conviction would render nugatory the decision to present Cardinal Pell on these two sets of offending separately.
22 The Court of Appeal in Chaarani also acknowledged the extreme level of prejudice associated with the publication of an accused person's prior convictions in close proximity to his or her trial.[9] To allow publication of Cardinal Pell's convictions in the cathedral trial at this time would be tantamount to just that.
[9]Ibid [47].
23 At this stage it is my intention, as I have indicated earlier, to hear legal argument on the swimmers trial early next year, in March 2019, with a trial to follow shortly thereafter. On any view, this time period is in close proximity to today's date. In any event, should I lift the order, the publicity which would follow would be at saturation level, febrile and persistent leading up to the commencement of that trial.
24 In my view it is also not possible to allow for a window of opportunity to publish the convictions from the cathedral trial, as argued by the interveners. No period of time between the fact of reporting and the trial, in my view, will sufficiently ameliorate the harm or prejudice which would attend such publicity. Mainstream publication of Cardinal Pell's convictions today would be at such a profound level that every juror selected on the subsequent jury for the swimmers trial would remember the fact of the convictions and the details.
25 It follows that I am of the view that no delay could ameliorate or mitigate, or sufficiently ameliorate or mitigate, the prejudice of convictions being published regarding serious child sexual offences committed by Cardinal Pell in the cathedral trial.
26 Of course there are also limits to the length of time that a trial can be delayed, given the right of timely justice for the accused person (of course, Cardinal Pell in the swimmers trial remains an accused person) and also for the complainants (they too are entitled to timely justice). Indeed, legislation contemplates that these kinds of prosecutions proceed expeditiously. That is, that sexual offence trials commence within three months of the accused first being committed.
27 While the Director did not persist with the submission that publication of the convictions amounts to sub judice contempt, she did contend that the reporting of Cardinal Pell's convictions undermines his right to a fair trial in the swimmers trial. The Director referred me to a statement by Taylor J in Nationwide News v The Queen [10] that such, ‘Publication of prior convictions directly undermines the right to a fair trial afforded to all accused persons under our system of law by imperilling the presumption of innocence’.[11] I agree.
[10][2018] VSC 572.
[11]Ibid [31].
28 The interveners argued, relying upon the High Court's statements in Dupas v The Queen[12], that the trial judge can direct the jury effectively to put any prejudice aside.[13]
[12](2010) 241 CLR 237 (‘Dupas’).
[13]Ibid, [28] and [36].
29 In my view such a submission overstates the effect of Dupas[14] and naïvely ignores the risks associated with adverse publicity concerning prior convictions and the court's undoubted powers and duty to mitigate such risks.
[14]Dupas must viewed in its context and on its facts. Dupas involved consideration of whether a permanent stay should have been granted, where the jury were inevitably going to have placed before them some prejudicial material including a prior conviction for murder: (2010) 241 CLR 237, 246 [20] 251 [37].
30 As the Court of Appeal observed in News Digital Media Pty Ltd v Mokbel[15]:
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.[16]
[15](2010) VR 30 248 (‘Mokbel’).
[16]Ibid, 267-268 [73].
31 No case, including Dupas, stands for the proposition that our confidence in the corporate integrity of juries is unimpeachable or blind in all circumstances.[17]
[17]Dupas (2010) 241 CLR 237, 248-249 [29].
32 I have considered on this review, as I did on the original application for a suppression order, whether there are means available other than through the making of a suppression order which could sufficiently mitigate or remove the prejudice in question. For the reasons I articulated in my original decision, and for the above reasons, I do not believe that the capacity to instruct the jury is sufficient when all the circumstances here are considered.
33 The interveners also argue that I might limit publication to the convictions of the offences without reference to any particulars and without reference to the evidential details. Again, in my view, the publication of a conviction, let alone convictions for serious sexual offences against children, cannot be characterised as ‘limited’. Such material is inherently potent and extremely prejudicial.
34 I also take into account that Cardinal Pell's convictions and the evidence in the cathedral trial, along with his sentence, will become fully exposed at some point next year.[18]
[18]I note that the proceeding suppression order has a sunset clause (clause 4) confirming when it expires.
The futility argument
35 I now turn to the second argument advanced by the interveners, the futility argument. The interveners have essentially submitted that the genie is out of the bottle because of the publication that has already occurred as to the convictions in the cathedral trial.
36 The affidavit material relied upon by the interveners describes how social media content is accessed and identifies some publications on the internet and social media websites regarding the convictions of Cardinal Pell in the cathedral trial.
37 Mr Mukerjea took me to some examples of that material during oral argument and I have examined the affidavit material. The material discloses references on Twitter, Facebook, Reddit, Wikipedia, Google and other overseas publications. Mr Mukerjea submitted that this publicity has been generated from sources overseas and not by conduct attributable to his clients.
38 During the course of the hearing today, I raised concerns that some of the articles published by some of his clients, including The Age, may have contributed to improper access of this information by identifying to their readers where they could locate the full details of the cathedral trial and convictions, for example on Twitter. This may well be examined on another occasion in relation to possible contempt proceedings or proceedings concerning a possible breach of my suppression order.[19]
[19]I have raised these matters and other related concerns about the conduct of the media with the parties and counsel in these prosecutions by way of a mention on 13 December 2018. A copy of this transcript was distributed to the media generally, including the interveners in this matter.
39 In some circumstances, the conduct of a media organisation may be a relevant consideration. Hollingworth J observed in CDPP v Brady & Ors[20]:
This decision does not stand as authority for the proposition that if someone deliberately breaches a suppression order and circumvents the proper legal procedures for reviewing the order, it necessarily will be appropriate to lift the suppression order on review. To come to such a conclusion would be to encourage illegal activity. Each case needs to be determined on its own facts. In some cases it will still be possible to protect the underlying public interest by maintaining the suppression order, notwithstanding the breach. However, I have come to the conclusion that this is not such a case.[21]
[20](2015) 252 A Crim R 50 (‘Brady’).
[21]Ibid, 63 [80].
40 While some of the publicity in the last 24 to 48 hours raises a question in my mind that some of the media organisations may not have come to court with clean hands, I have put this issue entirely to one side for the purposes of this decision.
41 I have also proceeded upon the basis that I should assess the publicity objectively, which includes assessing the state of the publicity as of today.
42 I make the following points concerning the state of the publicity and the futility argument.
43 First, on the evidence before me, the publicity is very largely confined to social media. Whilst I do have concerns there has been some mainstream media exposure, indeed by some of the interveners themselves, it has not risen to saturation level, it is oblique and would have required some investigation or enquiry by the readers elsewhere. Certainly, there is no evidence of wide-spread mainstream media exposure within Australia, let alone Victoria.
44 Second, there was no evidence placed before me as to the numbers of Victorians who may have been exposed to the internet and social media publicity. Mr Mukerjea acknowledged as much.
45 Third, Mr Mukerjea accepts that exposure to the social media material generally requires a member of the public to access the website in question and conduct some active level of investigation or enquiry. A lot of exposure would depend upon when the website was accessed or viewed, such as the presence of a trending topic.
46 In my view, this is to be contrasted with exposure to main stream media saturation, which would inevitably be widespread and total. The public would be confronted by it without any action on their part.
47 Fourth, at the moment, the publicity is directed toward rumour, innuendo and suggestion and is lacking in detail. A lifting of the suppression order would result in the confirmation of the convictions and confirmation of some important and relevant detail and evidential matters. It would undoubtedly be significantly more potent with a corresponding risk of prejudice coming, as it would, from authoritative news sources.
48 Fifth, it may be accepted that to some extent the effect of the order is diminished by the recent spike in publicity and by the media exposure overseas, seeping into the social media community within Australia and Victoria. However, this does not render the order nugatory or unnecessary.
49 The order that I originally imposed on 25 June, in my opinion, continues to have real work to do in containing what would otherwise be an extreme level of publicity. In my opinion it remains necessary to prevent a real and substantial risk of prejudice to the proper administration of justice, which cannot be prevented by other means.
Conclusion
50 Therefore, I refuse this application for variation or revocation of my suppression order, and confirm the orders I made on 25 June, 2018.
Post-script
51 Having regard to my decision to confirm the original terms of the proceeding suppression order of 25 June 2018, the parties and interveners agreed that two additional clauses ((5)(e) and (f)) be incorporated prohibiting non-publication of a report about, or information arising out of, a mention in this matter conducted on 13 December 2018 and the application for review of my suppression order on 14 December 2018.
52 The terms of my now confirmed proceeding suppression order, dated 14 December 2018, are as follows:
THE COURT ORDERS THAT:
(1) Publication is prohibited of any report of the whole or any part of these trials, and any information derived from these trials and any court documents associated with these trials, save that publication is permitted that the accused is facing prosecution for historical child sexual offences in the County Court of Victoria.
(2) The prohibition on publication applies within all States and Territories of Australia and on any website or other electronic or broadcast format accessible within Australia.
(3) For the purpose of this order, ‘publication’ has the meaning attributed to it by s3 of the Open Courts Act 2013, that is to say, it means the dissemination or provision of access to the public by any means including, publication in a book, newspaper, magazine or other written publication, or broadcast by radio or television; or public exhibition; or broadcast or electronic communication.
(4) This order will expire upon commencement of the second trial in time, save that publication of any report of the whole or any part of the first trial in time and any information derived from and any court documents associated with it will be prohibited until verdict in the second trial in time.
(5) For the avoidance of doubt, publication is prohibited of the following information:
(a) number of complainants in either or both trials;
(b) the number of charges, save for the fact that there are “charges”;(c) the nature of the charges, save for the fact that they are charges of “historical child sexual offences”; and
(d) the fact of multiple trials;
(e) any report of the whole or part of the mention 13 December 2018 in relation to the George Pell prosecution, or any information derived from this hearing or any court documents associated with this hearing;
(f) any report of the whole of part of an application for review of a suppression order on 14 December 2018 in relation to the George Pell prosecution, or any information derived from this hearing or any court documents associated with this hearing.
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