Director of Public Prosecutions v Tuteru (Application for suppression order)
[2023] VSC 241
•9 May 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0024
| IN THE MATTER of an application by SIMIONA TUTERU |
| BETWEEN |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| -and- |
| SIMIONA TUTERU |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 April 2023 |
DATE OF JUDGMENT: | 9 May 2023 |
CASE MAY BE CITED AS: | DPP v Tuteru (Application for suppression order) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 241 |
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CRIMINAL LAW – Application for broad suppression order to prevent airing of television story – Court’s inherent jurisdiction – Whether story prejudicial to accused’s right to fair trial – Appeal against permanent stay of charge by trial judge pending – Whether real and substantial risk of prejudice to the administration of justice – Whether risk of prejudice will dissipate with passage of time – Whether prejudice can be adequately mitigated through appropriate jury selection and directions – Whether uncertainty of potential for future trial is relevant – Suppression order not made.
PRACTICE AND PROCEDURE – Nature of originating process required for application – Whether application is appropriately part of criminal proceeding – Whether jurisdiction to make costs orders in criminal proceeding in favour of persons other than the Crown.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | D Hallowes KC with A Beech | Holman Webb |
| For the DPP | D Piekusis KC | Office of Public Prosecutions |
| For Nine Network Australia Pty Ltd | J Quill (solicitor, by leave) | Thompson Geer |
HER HONOUR:
Mr Tuteru (the applicant) applied for a broad suppression order to delay the airing of a television segment on 60 Minutes on Channel Nine. The Age had published an article on the front page on Saturday 22 April 2023 outlining allegations concerning the Pentecostal church with which Mr Tuteru is said to be associated. The article was headlined ‘Seeing witches: The cult-like church and the crash that rocked Victoria’. It promoted the 60 Minutes program planned to go to air the following evening. The application was brought on urgently in the Practice Court and heard on Sunday 23 April 2023. I refused the application. These are the reasons for doing so.
Prior to the hearing, the applicant served Nine Network Australia Pty Ltd (Nine) with a Notice of Application for suppression order (Notice) but without reference to any existing proceeding. An undertaking was given to regularise the application by filing the necessary originating process. The applicant had also served Nine with the affidavit of Alicia Mataere and an outline of submissions in support of the application, both dated 22 April 2023. Nine was given leave to appear and on the refusal of the application sought its costs of the day. The applicant resisted this. The costs question was reserved until the nature of the application to be filed was clear. A dispute arose in the submissions that addressed costs as to the appropriate way in which to regularise the application. I indicated that I would deal with this in my reasons once the parties had had an opportunity to address these issues. The parties have filed written submissions on the question of jurisdiction and on the costs orders sought. Those issues are dealt with below.
The substantive application
Broadly the applicant submitted that the sensational and inflammatory nature of the segment to be aired, as demonstrated by the online trailers promoting it, play on prejudice and fear surrounding extreme religious beliefs and purport to link such matters to the applicant’s potential criminal trial. The applicant submitted that suppression is necessary to ensure that he receives a fair trial because airing such matters publicly prior to trial means potential jurors would be fixed with knowledge of irrelevant and prejudicial matters that will not be in evidence.
The applicant was the supervisor of truck driver Mohinder Singh, whose truck was involved in the crash that killed four police officers on the Eastern Freeway on 22 April 2022. While the applicant initially faced criminal charges of manslaughter and offences under the Heavy Vehicle National Law (the HVNL), the Director of Public Prosecutions (DPP) discontinued the manslaughter proceeding and filed a new presentment containing one charge under the HVNL. Under that charge, the DPP alleges that the applicant breached a safety duty imposed upon him by the HVNL by engaging in conduct that exposed individuals to a risk of death or serious injury and was reckless as to that risk. The charge carries significant penalties including large fines and the possibility of a prison sentence.
The nature of the remaining charge is relevant. The applicant outlined the charge as being ‘risk based’ and not outcome based. The prosecution is not required to prove that the alleged conduct of the applicant caused death or serious injury. The prosecution does not rely on extreme or cult like features attributed to the Pentecostal church to which the applicant is said to belong. Trailers for the segment to be aired highlight extreme and cult-like practices.
On 3 March 2023, Lasry J permanently stayed the remaining charge. The DPP appealed the decision and the appeal is yet to be heard. The current situation therefore is that the applicant will not face a criminal trial unless the DPP appeal succeeds.
Submissions
The applicant submits that there are four reasons why a broad suppression order is necessary to prevent prejudice to the administration of justice:
(a) the program purports to link sensational and inflammatory aspects of the church to the cause of the deaths of four police officers;
(b) the program plays on prejudice and fear surrounding extreme religious beliefs;
(c) the program will air prejudicial and irrelevant matters that will not be in evidence at trial; and
(d) the proximity between the program and any jury trial is problematic in a prosecution he described as ‘fragile’.
The applicant submits that if the stay is lifted the trial would be listed expeditiously given the delay in the proceeding that has already occurred. The applicant submits that it is likely that any trial would be listed within three to six months. In the applicant’s submission, in that time frame any potential juror who has watched the segment and formed views about the content will not have forgotten the content and therefore a prejudice to the applicant’s right to a fair trial would remain.
The DPP neither opposes nor supports the application. The only submission the DPP made was to bring to the Court’s attention the relevant case of Roberts v The Queen(No 2),[1] discussed below.
[1][2020] VSCA 188 (‘Roberts’).
Nine submits that there is no more than a prospect that a jury would be empanelled at some future date and that the applicant’s estimate as to the timing of any trial is optimistic. Nine submits that the legal test sets a high bar — being that the suppression is necessary to protect the administration of justice. In Nine’s submission, the impact of any prejudice will dissipate with the passage of time and the factual matters referred to are and have been in the public domain for some time. To illustrate the submission, Nine relied on an article published in The Age on 14 July 2021 outlining Mr Singh’s evidence at the applicant’s committal hearing. The article recounted Mr Singh’s evidence that his supervisor prayed to take away the curse and that Mr Singh told his supervisor that he was seeing witches. That article carried the headline ‘Prayed in Jesus’ name: Killer truckie told boss he was too tired to drive and seeing witches, court told’. Nine submits that the applicant’s complaint is not about the potential revelation of these facts, but rather the way in which those matters are presented.
Principles
The Court has inherent power to make orders necessary for the fair trial of an accused.[2] The applicant sought the order in reliance on the Court’s inherent jurisdiction and not pursuant to the Open Courts Act 2013 (Vic) (the Open Courts Act). There was no issue as to the Court’s power to make the order if it was appropriate to do so.
[2]General Television Corporation Pty Ltd v Director of Public Prosecutions & Ors [2008] VSCA 49; 19 VR 68 [21] citing in part John Fairfax and Sons v Police Tribunal of NSW (1986) 5 NSWLR 465 [471].
The relevant legal test for a defence application for a suppression order has been clearly stated on a number of occasions:
The order must be necessary to achieve the purpose of protecting the administration of justice. It will be satisfied where there is a real or substantial risk of prejudice to an accused person’s right to a fair trial that can only be ameliorated or avoided by the making of the order. The requirement for it to be necessary is deliberately a high hurdle.[3]
[3]Roberts (n 1) [35].
Both the applicant and Nine agreed that this is the relevant test to be applied. The applicant submitted that if I accept his argument that a degree of prejudice would remain because potential jurors would or might retain some memory of the program’s content, then I should balance that against the absence of any pressing need to air the segment at this time or at all in advance of any trial.
I do not accept the argument that if any degree of prejudice might remain at the time of any criminal trial, then I should balance this against commercial interests or other reasons for publication. While it is clear that there are occasions when the public interest in free expression will necessarily be constrained by the need to prevent interference with the administration of justice, the test remains one of demonstrating the necessity of such a step being required. I need to be satisfied that the risk of prejudice arising from the recollection of potential jurors is one that can only be avoided by the making of a broad suppression order and not for example by directions or other steps available to a trial judge during empanelment and in the course of any future trial.
Analysis
The present situation is that the applicant does not face the prospect of any criminal trial. He has the benefit of a permanent stay and will retain that benefit unless the DPP’s appeal succeeds. If that appeal succeeds, there is a prospect that any trial on the remaining charge may be dealt with summarily and that the matter will not be determined by a jury. I should note that the applicant informed me that the DPP has indicated presently that she would oppose such a course of action. This necessarily means that there also remains a prospect that the matter will in future be determined by a jury.
I approach the question of what is necessary to protect the applicant’s right to a fair trial on the basis that although the criminal appeal is stayed, if the stay is lifted the applicant will face a criminal trial and may face a jury trial. It is clear, however, that any such trial will be months away. Whether as early as three months or longer than six months is speculation in which it is not necessary to engage. The authorities make clear that with the passage of time there is a diminution in the prejudicial effect of published material.[4]
[4]IMO an Application by “The Age” and ors re R v Carl Anthony Williams [2004] VSC 413, [24], [31]; Madafferi v The Age Co Ltd [2016] VSC 103 [48].
I accept the submission that the content of the program, at least as demonstrated by the online trailer, is to be presented in a sensational and inflammatory manner. As the Court of Appeal said in Friedrich v Herald and Weekly Times Ltd,[5] ‘[t]he more colourful the matter described, the more likely that some will remain in the memory of potential jurors’.[6]
[5](1990) VR 995.
[6]Ibid 1005.
I also accept that, despite the observations that jurors generally approach their task in a responsible manner, they are still human and on occasion a trial judge may come to a conclusion that their direction alone given cannot be relied on to achieve the object of fair trial and verdict in accordance with the evidence. The risk of prejudice to the conduct of a fair trial is most acute when the trial is underway. The retrial of Robert Farquharson was one such circumstance, in which the particular care was needed to ensure that the retrial underway was not derailed, ultimately requiring suppression of a particular article.[7] The Court of Appeal described the following statement of the trial judge as ‘particularly important’ when it considered the publisher’s appeal against the suppression order:
The trial of Robert Farquharson is highly emotional. This is, in my opinion, a case that strains the limits of judicial direction on sympathy and prejudice. The emotional content of this trial has been continuous and …the jury are under as much pressure as any jury in any criminal trial could possibly be. In my view, that pressure will increase.[8]
[7]See Nationwide News Pty Ltd v Farquharson & Anor [2010] VSCA 131.
[8]Ibid [13]-[14].
However, even in cases of public notoriety, the authorities make clear that in most cases an accused can still receive a fair trial on the basis that a trial judge will provide appropriate directions during empanelment and during the trial itself. Jurors are bound to follow these directions and the administration of justice assumes in general that jurors will do so.[9] The vast amount of public comment on many aspects of the tragic events of the Eastern Freeway crash over time mitigates against the applicant’s argument that this particular piece of reporting — even if sensational and unduly so — will create an impression in a member of the public that might be revived some months into the future upon becoming part of a jury panel and be a lasting impression such that a person could not be expected to act in accordance with their oath or affirmation as juror. The contemporary media cycle is likely to have well and truly moved on by the time any jury trial is to commence and the content of the segment will similarly have faded. As John Dixon J said in the context of an order for non‑publication in advance of a civil trial for defamation:
It cannot readily be assumed that the prejudicial impact of any publicity in March cannot be alleviated by appropriate directions to a jury in August.[10]
[9]John Fairfax Publications Pty Ltd v District Court (NSW) 2004 61 NSWLR 344 [103]-[110].
[10]Madafferi v The Age Co Ltd (No 2) [2016] VSC 103 [48].
Jurors are robust and responsible and in principle, if empanelled at some time in the future, I expect that jurors will be able to put to one side any preconceptions derived from the widespread pre-trial publicity regarding the crash and in particular the circumstances of the applicant. I am not persuaded that potential jurors may be so affected by some recollection of a particular segment aired or newspaper article published months earlier such that those jurors would be unable to follow directions of a trial judge to have regard only to the evidence.
The length of time between publication in April 2023 and any trial commencing at the earliest much later this year in my assessment does not make it necessary to suppress publication now. Accordingly, I dismissed the application.
Jurisdiction and costs
Nine sought its costs of the day in resisting the application. The Notice served by the applicant was in the form prescribed by r 16.02 of the Supreme Court (Criminal Procedure) Rules 2017. The Notice described the proceeding as being between the DPP and Simiona Tuteru but contained no proceeding number. As well as the broad suppression order the relief sought a closed court order pursuant to s 30 of the Open Courts Ac 2013. Questions arose as to what was the appropriate originating process for the application and in which proceeding it should be made.
The applicant submitted that the underlying proceeding, presently stayed, is a matter subject to the Criminal Procedure Act 2009 (the Criminal Procedure Act), as is the Crown’s interlocutory appeal listed for hearing on 7 June 2023. Therefore it was submitted that the application is ‘properly tied to the criminal proceeding’ and did not require an originating motion as might be required to commence a civil proceeding.
Nine submitted that the proceeding was a fresh matter akin to a civil injunction application that sought no relief as between parties to the criminal proceeding.
The applicant submitted orally that the application was ‘strictly speaking not directly attached to the appeal proceeding’[11] but in written submissions described the current proceeding as the interlocutory appeal and submitted that the need for the application arises from the ongoing interlocutory appeal, although in substance to protect the underlying trial proceeding rather than the integrity of the appeal process.[12]
[11]Transcript of Proceedings, DPP v Tuteru (application for suppression order) (Supreme Court of Victoria, S ECR 2022 0024, Justice Forbes, 23 April 2023) 1.27 (‘T’).
[12]Applicant, ‘Applicant’s written outline of submissions’ filed in 23 April 2023 in DPP v Tuteru (application for suppression order) S ECR 2022 0024 [12].
The DPP also submitted that the application was seeking an order akin to injunctive relief but that it is open to the court to consider it brought in the interlocutory appeal proceeding. Both the applicant and the DPP referred to Roberts v R [No 2] (‘Roberts’).[13]
[13][2020] VSCA 188.
In Roberts, an application for a takedown order was foreshadowed by a letter from the applicant’s solicitor to the Court of Appeal Registry. At the time of the letter, the Court of Appeal had reserved its decision on the applicant’s appeal. The Court treated the letter as an application for such an order and the matter was listed for hearing as an application within the underlying appeal proceeding.
I accept that this application is one properly to be made within the criminal proceeding. It is not a standalone civil proceeding. The relief sought is directed at the integrity of the criminal trial process and the protection of the applicant’s rights in that process. It is not directed at some other civil relief. In this case, the application for relief pursuant to the Court’s inherent jurisdiction and the Open Courts Act was foreshadowed by the Notice. It is appropriate to treat the Notice that was served on Nine as the document commencing the application.
In Roberts the only proceeding on foot was the appeal against conviction before the Court of Appeal. Roberts, unlike the applicant here, had been convicted following a criminal trial. There was no pending criminal proceeding on foot nor could there be unless the conviction was overturned. For that reason the application could only have been made in the appeal proceeding. Here there is a criminal proceeding in the trial division, albeit presently permanently stayed. Had the application succeeded, it would have been appropriate to make orders in the trial division proceeding pending any trial that might occur. This was the course in R v Cerantonio (Ruling No 17) (‘Cerantonio’),[14] where orders were made in the criminal proceeding in the trial division. I direct that the applicant file the Form 6-16 that was served in the Notice in Proceeding S ECR 0024 DPP v Tuteru.
[14]R v Cerantonio (Ruling No 17) [2018] VSC 106 (‘Cerantonio’).
As to the question of costs, Nine submitted that the application for a broad suppression order affecting its publication of material was akin to an injunction against Nine. In Nine’s submissions, there was nothing identified to justify a departure from the general principle applicable in civil applications that the costs should follow the event. Where there was no relevant dispute between the parties in the underlying criminal proceeding, and Nine was given notice of and leave to appear on the application, the fact that it is a non-party to the criminal proceeding is, in Nine’s submission, no reason to justify an exercise of discretion departing from the usual practice that costs follow the event.
The applicant submitted that the Court has no power to order costs against the applicant who is the accused because of the criminal nature of the proceeding in which the application was made. The applicant relied on observations in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim ('Ibrahim’)[15] to submit that, if there is power to award costs, it was nevertheless not appropriate to exercise that power. In Ibrahim, the NSW Court of Criminal Appeal, hearing an appeal against suppression orders made in criminal proceedings before the District Court of NSW, set aside the orders observing:
These being criminal proceedings, it would not be appropriate to make an order for costs against the parties to the proceedings. There is no indication in the Suppression Orders Act that this Court should exercise any power to award costs. There is no reason to treat the costs of these proceedings as otherwise than costs of proceedings ‘preliminary or incidental’ to an appeal and thus subject to the no costs regime provided by s 17(1) of the Criminal Appeal Act.[16]
[15](2012) 83 NSWLR 52.
[16]Ibid [104].
The applicant submitted that the Open Courts Act, like the CourtSuppression and Non‑publication Orders Act 2010 (NSW) gives no indication that the power to award costs ought be exercised, nor does the application raise the considerations relevant to a specific power to award costs provided for in s 404 of the Criminal Procedure Act.
The DPP also submitted that the application was injunctive in nature. The DPP accepted the application as being one brought within the criminal proceeding itself, or the interlocutory appeal, but submitted that this does not preclude the Court from making an order as to costs. The DPP provided Cerantonio as authority for this submission.
Section 24(1) of the Supreme Court Act 1986 gives the Court a wide discretion as to making orders for the payment of legal costs. Section 24(2) provides:
Nothing in this section alters the practice in any criminal proceeding.
The practice in criminal prosecutions on indictment was and remains that no order for costs may be made against the Crown. In Wright v Keon-Cohen,[17] the Full Court upheld the decisions of three County Court judges that they had no power to award costs to a defendant who had been acquitted of a criminal offence after a trial. Brooking J, with whom the other members of the Court agreed, said:
It is often said that in criminal prosecutions on indictment or presentment no order for costs may be made against the Crown because of the rule (sometimes described as a general rule) that the Crown neither pays nor receives costs….But with the greatest respect, it appears to me that the reason why costs cannot be awarded against the Crown on a prosecution for an indictable offence is not the special position of the Crown. It is the simpler and more fundamental reason that, in the absence of statute, there is no power to award costs.[18]
[17](1992) 77 A Crim R 67.
[18]Ibid 68-69.
Brooking J went on to consider whether s 24(1) of the Supreme Court Act created a statutory power enabling orders for costs to be made in prosecutions for indictable offences. He concluded that this statutory power to award costs did not apply to criminal trials.
In Perkins v County Court of Victoria & Ors,[19] the Court of Appeal again dealt with the breadth of s 24(1) of the Supreme Court Act. There it considered the argument that an order for costs made when dismissing a judicial review of a criminal proceeding was beyond power as s 24(1) did not confer a statutory jurisdiction to award costs. Phillips JA concluded that sub-s (1) does not cease to apply to a proceeding which is a criminal proceeding within the meaning of sub-s (2). Phillips JA stated that s 24(1):
operates still to confer jurisdiction over costs, but the jurisdiction must not be exercised otherwise than conformably with any relevant practice in criminal proceedings.[20]
The relevant practice was that the Crown neither gives nor receives costs for criminal trials. Buchanan and Charles JJA agreed.
[19](2000) 2 VR 256.
[20]Ibid [40].
In Cerantonio, the respondents who were not parties to the criminal proceeding submitted that s 24(2) of the Supreme Court Act had no relevance and that the Court has a general discretion to award costs, presumably founded in s 24(1). The accused there accepted that the Court had the power and discretion to award costs and directed submissions to the questions of how the discretion should be exercised on that occasion.[21]
[21]Cerantonio (n 14) [10].
Therefore, the characterisation of the underlying proceeding as a criminal proceeding does not itself preclude the power to award costs in this application.
For the reasons outlined above, the application is not brought as a civil proceeding between the applicant and Nine, even if in substance it has many hallmarks of civil injunctive relief. Therefore in my view it is wrong to start from the point of a usual rule applicable in civil proceedings that costs follow the event. Even though the suppression order would protect the applicant’s personal right to a fair trial, any relief is properly granted as an integral part of a public interest in the proper administration of justice and recognising the importance of the maintaining the integrity of Court processes in the conduct of criminal trials. In News Digital v Mokbel,[22] the majority said:
A trial judge in a case where pre-trial publicity may be an issue must, of course, first be aware whether any and what pre-trial publicity does in fact exist. Bell J of the High Court, writing extra-judicially, has pointed out that there were available two practical steps to prevent or mitigate the problem for a forthcoming criminal trial. First, the Director of Public Prosecutions, when a trial is pending, might carry out internet searches to discover if there is any prejudicial material posted and then request that it be taken down from any local website until the trial is completed. The other was for the court information officer to make such a request. These suggestions presuppose that the request will be complied with and, further, that there is some utility in taking down the material.
It then falls to the trial judge, after hearing submissions, to determine the seriousness of the risk to the trial process, and, where appropriate, to take steps to protect the process. There are many strategies available. These include postponing the trial and changing its venue. The judge may remind the jury panel before the jury is struck of their obligation to try the case only on the evidence to be presented and, having done so, enquire whether any member of the panel felt unable to discharge this obligation by reason of the pre-trial publicity. The judge will normally expect that the media will refrain from publishing prejudicial material, but, in the case where this is necessary, he or she may make an order with respect to the existing or future publication of such material.[23]
[22](2010) 30 VR 248.
[23]Ibid 271-2 [91]-[92] (citations omitted).
The applicant has every good reason to take steps to ensure the integrity of the process in the same way that other parties or the Court itself might do. The application is made in a criminal proceeding to address the impact of actions of a third party on the conduct of a fair trial. These are circumstances clearly distinguishable from interlocutory injunctions in civil proceedings protecting the status quo pending a trial.
The fact that the Open Courts Act makes no reference to costs supports the view that there is no usual rule in such applications and that the costs discretion will take into account all the circumstances in which various applications are made, consistent with the observations in Ibrahim regarding the relevant NSW legislation.
The fundamental principle upon which the discretion to order costs rests is that the purpose for which costs are awarded is to compensate a party who has been brought to court to obtain relief or to defend a claim, not to punish an unsuccessful party.[24] In applications for injunctive relief pending a civil trial, the discretion as to costs of pretrial applications is generally exercised in the context where overall, costs as between parties will usually follow the outcome of the litigation. This is not the case in relation to applications concerning the conduct of criminal trials.
[24]Latoudis v Casey (1990) 170 CLR 534, 567; Oshlack v Richmond River Council (1998) 193 CLR 72 [67].
In my view the nature of the application for suppression was one in which the parties to the criminal proceeding and Nine had an opportunity to make submissions addressing what was necessary for the administration of justice. The Court is not concerned with any civil dispute between the applicant and Nine but with what steps might be necessary to protect its own process from the potential risk identified by the applicant.
The applicant was required to notify Nine, although Nine was not required to appear. Rather, Nine sought and was granted leave to do so, and its submissions were of assistance to the Court. Whether or not they were formally a respondent to the application itself would not be determinative of the exercise of my discretion. They have had opportunity to be heard. Nor is it the case that prior to making the application there was opportunity to engage in negotiations with Nine as might be the case when take down orders are sought. There was real urgency arising from the way in which the proposed segment came into the public domain.
In all of these circumstances in my view to order that the applicant pay Nine’s costs would have the effect of penalising the applicant. In my view it is appropriate that all parties bear their own costs of the application and so I will make no order as to costs.
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