Director of Public Prosecutions v Young (No 3)
[2025] VSC 423
•8 July 2025
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT BALLARAT
CRIMINAL DIVISION
S ECR 2024 0217
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LACHLAN JAMES YOUNG |
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JUDGE: | Elliott J |
WHERE HELD: | Ballarat |
DATES OF HEARING: | 7 July 2025 |
DATE OF JUDGMENT: | 8 July 2025 |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Young (No 3) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 423 |
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OPEN COURTS – Application for proceeding suppression order – Murder trial imminent – Domestic partner killed – Existing publicity – Another criminal trial pending – Suppression order granted in other proceeding – No publications in relation to other proceeding – Accused unsatisfactory conduct to be adduced in murder trial - Whether suppression of murder trial necessary for due administration of justice with respect to other proceeding – Order not necessary – Application dismissed – Open Courts Act 2013 (Vic), ss 4(1), 14(1), 17, 18(1)(a) – Judicial Proceedings Reports Act 1958 (Vic), s 3(1)(c) – Crimes Act 1958 (Vic) s 38(2), (3) – Juries Act 2000 (Vic), s 78A.
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| APPEARANCES: | Counsel | Solicitors |
| Forthe prosecution | K Churchill with L McAuliffe | Office of Public Prosecutions |
| Forthe accused | G Casement with R De Kretser | Dribbin & Brown Lawyers |
HIS HONOUR:
A. This proceeding, the imminent murder trial and the suppression order sought
On 7 March 2025, the Director of Public Prosecutions filed an indictment in this court referring to a single charge of murder. The accused, Lachlan Young (“Young”), is charged that at Sebastopol in Victoria on 5 April 2024 he murdered Hannah McGuire (“McGuire”). The trial is due to commence tomorrow.
On 26 June 2025, 9 days of pre-trial argument concluded. On the seventh day of pre-trial argument, Young indicated through his counsel that he would be pleading guilty to manslaughter. The court was informed that it would be admitted by Young at trial that a conscious, voluntary and deliberate act of an unlawful and dangerous kind caused the death of McGuire.
On 27 June 2025, by email, Young indicated his intention to file an application for a proceeding suppression order pursuant to section 17 of the Open Courts Act 2013 (Vic).[1] Young had not previously given notice to the court of an intention to make such an application. Until an interim suppression order was made on 3 July 2025, there had been no order restricting the publication of this proceeding.
[1]The application was filed on 28 June 2025.
An order is sought in the following terms:
A proceedings (sic) suppression order over the trial of [Young] in the Supreme Court until the expiry of 28 days following the verdict, acquittal or discontinuance of the trial of [Young] in the County Court of Victoria being CR-25-00007…
The application referred to a proceeding suppression order already in place with respect to the County Court proceeding. As a result of that order, there has been no publicity regarding that proceeding.
The grounds relied upon are that the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means. Essentially, Young submits that publicity with respect to this proceeding would prevent the trial with respect to the County Court proceeding from being conducted consistently with the due administration of justice.
B. Earlier publicity with respect to this proceeding
This is not the first time issues concerning publicity have been raised in this proceeding. In February 2025, Jane Dixon J refused an application for a change of venue of the trial. In doing so, her Honour found that the media publications up until that time contained little reporting of the facts and that most of the reporting had been unremarkable.[2] Having reviewed those publications, I have come to the same conclusion. There was no appeal from her Honour’s decision and Young did not seek to revisit this finding.
[2]Director of Public Prosecutions v Young [2025] VSC 46, [38].
Young specifically referred to media coverage last year of associates of McGuire speaking publicly outside court. The commentary included them stating that they were shocked that Young had pleaded not guilty at the committal mention stage. The fact that there was a press conference on the steps of the court about Young pleading not guilty and the effect that Young’s plea had on certain people was in evidence before Jane Dixon J on the previous application.
Returning to more recent events, rulings with respect to pre-trial argument were delivered on 3 July 2025. On this day and each of the 9 days of pre-trial argument, the proceeding was listed in the daily court list and published without limitation. However, in accordance with a statutory prohibition,[3] there has been no publication of the details of these hearings.
[3]Judicial Proceedings Reports Act 1958 (Vic), s 3(1)(c).
C. The County Court proceeding already set down for trial
Young is to face trial on a charge of rape of a 16 year old girl. It is alleged that Young committed this offence in February 2024 in a next-door neighbour’s backyard. He was charged in September 2024.
The complainant’s evidence was pre-recorded on 12 June 2025. The trial date for the County Court proceeding has been fixed for the Ballarat County Court circuit commencing on 10 November 2025.[4]
[4]It was also floated during the hearing of this application that it might be possible to get an earlier trial in Geelong, but this was apparently still being explored rather than being a definite alternative.
Self-evidently, rape is a very serious offence. It has a maximum penalty of 25 years and a standard sentence of 10 years.[5]
[5]Crimes Act 1958 (Vic), s 38(2) and (3). Charges concerning aggravated burglary and harassing a witness were perfunctorily referred to, but these matters did not form the real basis of the present application.
The suppression order with respect to the County Court proceeding was made in final form by the Magistrates’ Court of Victoria on 11 October 2024. The making of this order was not opposed by the prosecution. The purpose of the order was to ensure that the County Court proceeding would not interfere with the due administration of justice in the hearing and determination of this proceeding. According to its terms, the order will continue to operate until the resolution of this proceeding.
D. The requirement of necessity before a suppression order may be made[6]
[6]Much of what is stated in this section of the judgment is taken from Director of Public Prosecutions v Murray [2025] VSC 275, [32]-[39].
Ordinarily, the media are free to publish fair and accurate reports of court proceedings; indeed such publications are a cornerstone of open justice,[7] and foster legitimate discussion about matters of public interest.[8] Further, the timely reporting of court proceedings aligns with open justice principles.[9] More specifically, public confidence in the administration of justice in criminal trials is promoted by the public being properly informed with contemporaneity, including in more serious cases by up-to-date, ongoing reporting. Timeliness also promotes the value, and a broader understanding of the value, of the rule of law.[10]
[7]John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476G-477A (McHugh JA, with whom Glass JA agreed).
[8]R v Williams; In the matter of an application by “The Age” [2004] VSC 413, [31] (Kellam J); Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 26.2-27.5 (Mason CJ); Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242, 249 (Jordan CJ), quoted by Lord Reid in Attorney-General v Times Newspapers Ltd [1974] AC 273, 296E-297A and by Brennan J in R v Glennon (1992) 173 CLR 592, 612.2.
[9]Chaarani v Director of Public Prosecutions (Cth) [2018] VSCA 299, [41] (Maxwell P, Beach and Hargrave JJA), a case concerned with the reporting of the outcome of a criminal trial; Hogan v Hinch (2011) 243 CLR 506, 532 [22] (French CJ); R v Mokbel(No 2) [2009] VSC 652, [27] (Kaye J); Re applications by the Chief Commissioner of Police (Vic) for Leave to Appeal (2004) 9 VR 275, 286 [25] (Winneke P, Ormiston and Vincent JJA); John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344, 353 [20] (Spigelman CJ, with whom Handley JA and MW Campbell AJA agreed). Compare observations in R v Mokbel(No 2) [2009] VSC 652, [62]-[63].
[10]Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, 607H-608A (Lord Steyn, with whom Lords Bingham, Nicholls, Hoffmann and Carswell agreed). See also Nationwide News Pty Ltd vFarquharson (2010) 28 VR 473, 477 [16] (Maxwell P, with whom Nettle JA and Emerton AJA agreed); Spigelman JJ, “The principle of open justice: a comparative perspective”: (2006) 29(2) UNSW Law Journal 147, 156).
Proceeding suppression orders are dealt with under Part 3 of the Open Courts Act, which relevant provides:
17 Court or tribunal may make proceeding suppression order
A court or tribunal on one or more of the grounds specified in section 18 may make a proceeding suppression order to prohibit or restrict the disclosure by publication or otherwise of—
(a) a report of the whole or any part of a proceeding;
(b) any information derived from a proceeding.
18 Grounds for proceeding suppression order
(1)A court … may make a proceeding suppression order if satisfied as to one or more of the following grounds—
(a)the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
Example
Another reasonably available means may be directions to the jury.
…
(Emphasis added.)
Section 18(1)(a) is a statutory recognition of the principle that open justice must give way in certain exceptional circumstances to protect the administration of justice. Suppression orders may be made to this end, but only to the extent necessary. This provision, along with the rest of the Open Courts Act, must be read in light of the court’s obligation to have regard to the primacy of the principle of open justice and the free communication and disclosure of information.[11]
[11]Open Courts Act, s 4(1). For an expansive discussion of the relevant principles, see Re WD (No 2) (2023) 72 VR 589, 603-606 [58]-[63].
The importance of necessity in the context of the proper administration of justice was explained in an oft-quoted passage:[12]
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 where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the 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. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient.
(Emphasis added.)
[12]John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476G-477B (McHugh JA, with whom Glass JA agreed).
That said, the requirement of necessity in this context reflects the need for courts to avoid unacceptable consequences that would interfere with the proper function of the courts.[13] There is a heavy onus on a person seeking a suppression order as a high degree of satisfaction is required before any encroachment on the principle of open justice will be permitted.
[13]Director of Prosecutions v EN [2023] VSC 724, [24] and the cases there cited.
Although often referred to as a right to a fair trial,[14] there is no right to have a trial or, if a trial is held, for it to be absolutely fair. Subject to matters not presently relevant,[15] if a prosecution proceeds to hearing, an accused is entitled to a trial that is as fair as the court can make it.[16] The mere existence of embarrassment, shame or humiliation does not make a trial unfair in the relevant sense and will be insufficient to discharge the onus of establishing necessity.[17]
[14]X7 v Australian Crime Commission (2013) 248 CLR 92, 116 [37] (French CJ and Crennan J) and the cases there cited.
[15]See, for example, ibid, 116-117 [38].
[16]Jago v District Court (NSW) (1989) 168 CLR 23, 49.7 (Brennan J), referred to with approval in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635, 651-652 [48] (Kiefel CJ, Gageler and Jagot JJ). See also R v Glennon (1992) 173 CLR 592, 615.3 (Brennan J).
[17]See fn 13 above; Rinehart v Welker (2011) 93 NSWLR 311, 326 [54] (Bathurst CJ and McColl JA); PQR v Secretary to the Department of Justice and Regulation (No 1) (2017) 53 VR 45, 74-75 [72] (Bell J) and the cases there cited.
The nature, extent and scope of the order sought will also be germane to the ultimate disposition of any application for suppression or non-publication. In other words, the degree of derogation from the principle of open justice that would be involved in the making of the suppression order that is sought is a relevant consideration.[18]
[18]Attorney-General v Khan (Suppression Order) [2022] VSC 627, [3] (John Dixon J); ABC v D1 [2007] VSC 480, [36] (Forrest J).
The extent to which the subject matter of a proposed suppression order has already been the subject of reporting or other publication may also be a relevant factor. On the question of utility of a suppression order and prior publications:[19]
[I]n circumstances where a suppression order would have little practical effect because a proceeding has already garnered significant publicity and it would be difficult to stem any further publication of the matters sought to be suppressed, a court will generally refuse to make a suppression order.
(Citations omitted.)
[19]Director of Public Prosecutions v EN [2023] VSC 724, [26].
In some cases, however, the notoriety of the accused may be an important factor in determining whether publication of the proceeding while it remains on foot will give rise to a level of unfairness that is inconsistent with the proper administration of justice.
In a case decided before the enactment of the Open Courts Act, it was noted that if there was a real and substantial risk of prejudice to the right of an accused to a fair trial in respect of very serious charges if the proceedings were published while the trial was being conducted, then it may be appropriate for a suppression order to be made.[20] Indeed, the notoriety of an accused may be such that it creates a very high likelihood that publication of a proceeding at or around the time the trial is on foot will result in jurors being exposed to people making comments to them during their day-to-day lives not only about the case, but also about the accused person.[21] In a similar vein, if there is existing sensationalist or prejudicial publicity concerning the accused, a suppression order may be necessary to prevent a real risk of reviving eroded or fading memories of such publicity.[22] Again, the touchstone when considering such factors is not the reputation or any embarrassment or humiliation of the accused; it is the due administration of justice.
[20]R v Mokbel(No 2) [2009] VSC 652, [30] (Kaye J).
[21]Ibid, [31].
[22]Ibid, [32], [50].
In considering whether a suppression order should be made, the court must consider the ability of trial judges to give appropriate directions to juries; and the capability of juries to follow those directions.[23] While this is not a determinative factor,[24] equally the fact that an accused attracts notoriety does not mean that person will be entitled to a suppression order.[25]
[23]See note to s 18(1)(a): par 14 above. See also Dupas v The Queen(2010) 241 CLR 237, 247-248 [26], 248-249 [28]-[29], 251 [38] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) in the context of a stay application; John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344, 366-367 [103]-[110] (Spigelman CJ, with whom Handley JA and MW Campbell AJA agreed) and the cases there cited.
[24]Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384, 393-394 [38]-[43] (primary judge’s reasons), 399 [72] (Bathurst CJ, Beazley P and Hoeben CJ at CL); Nationwide News Pty Ltd vFarquharson (2010) 28 VR 473, 477 [15] (Maxwell P, with whom Nettle JA and Emerton AJA agreed); R v Mokbel (No 2) [2009] VSC 652, [33]-[34] (Kaye J); Murphy v The Queen (1989) 167 CLR 94, 101.5 (Mason CJ and Toohey J).
[25]See fn 23. See also R v Williams; In the matter of an application by “The Age” [2004] VSC 413 (Kellam J); R v Glennon (1992) 173 CLR 592, 615.2 (Brennan J), which was referred to in R v Glennon (No 2) (2001) 7 VR 631, 659-661 [67] (Winneke P and Ormiston JA).
A suppression order sought where an accused[26] faces multiple trials in respect of separate charges may raise a distinct set of concerns with regard to ensuring the due administration of justice. Those concerns may arise from the reporting of the proceeding which will have the first-in-time trial, and the effect it may have on the proper conduct of the second-in-time trial. In some cases, there may be a real and substantial likelihood that publication of the evidence led, the issues considered and the verdict reached in the first-in-time trial will have an impact upon the minds of potential jurors responsible for determining the outcome of the later trial or trials.
[26]Or related accused: see, for example, Director of Public Prosecutions v Hazelwood Pacific Pty Ltd (Ruling 1) [2019] VSC 870, [42] (Keogh J). The prospect of more than one accused that are closely-related accused is not presently relevant.
Equally, publication of the existence or details of the proceeding that will have the second-in-time trial may adversely affect the fairness of the earlier trial.
This risk has been described as the possibility to “infect” the pool of potential jurors summoned by “significant media publicity”.[27] With respect to any prejudice to a second-in-time trial, it has been acknowledged that, even if there has already been prior publicity about overlapping subject matter of both an upcoming first-in-time trial and the second-in-time trial, ongoing publicity during the earlier trial itself (including its outcome) may be more prejudicial than the pre-existing publicity. This has been observed to be particularly so where there has been a significant ”lull” in media publicity between the initial reporting and the commencement of the first-in-time trial.[28]
[27]Director of Public Prosecutions v Hazelwood Pacific Pty Ltd (Ruling 1) [2019] VSC 870, [27], [44] (Keogh J), referring to both the primary judge’s reasons in Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384, 393-394 [38]-[43]) and the Court of Appeal: 399 [72] (Bathurst CJ, Beazley P and Hoeben CJ at CL).
[28]See ibid, [44], where there had been a lull in media publicity of more than 3 years by the time at which the suppression order application was decided. See also Director of Public Prosecutions v Pell (Suppression Order) [2018] VCC 905, [46]-[48], where Chief Judge Kidd considered that a number of contextual factors, including a “febrile media atmosphere”, exacerbated the potential for prejudice to arise from contemporaneous reporting of the first-in-time trial.
Naturally, each application must be considered in light of the particular facts of the proceedings with successive trials involving the same accused. Generally speaking, in determining whether a proceeding suppression order should be made with respect to the first-in-time trial when successive trials are to be held involving the same accused, there are at least 4 factors to consider as part of the application of the principles of open justice and the due administration of justice.
First, the likely nature and extent of media coverage of the first trial, including in the context of any existing publications regarding that proceeding at the time of the application. Secondly, whether that anticipated media reporting would be likely to be prejudicial to the subsequent trial or trials to a point that it would be contrary to the due administration of justice. Thirdly, in connection with this second consideration, the extent of any overlap or similarity between the underlying facts, issues and allegations in the different proceedings,[29] including whether any findings in the first trial that were adverse to the accused would be more readily translated by potential jurors into findings that should also be made in the later trial or trials.[30] Fourthly, whether it is possible to adopt measures in the preparation and conduct of the later trial or trials to properly address any potential prejudice, including with regard to relocation of the trial, size of the jury pool, selection process of any later jury, and jury directions to be fashioned by the trial judge of the later trial or trials.
[29]Ibid, [47].
[30]Ibid, [40].
E. Matters relied upon
Young referred to what was submitted to already be intense media interest in this proceeding throughout Victoria and even Australia. There has recently been a lull in reporting, but it was submitted that everything was about to change upon the commencement of the trial.
Young contended facts will be aired in this proceeding that are highly likely to be reported in detail for weeks in all forms of mainstream and non-mainstream media; frequently, repetitiously and extensively. The “unforgettable facts” were submitted to include inflammatory aspects of this case that it was contended would be irresistible to the media and would result in Young being unable to get a fair trial in the County Court. These included:
(1)Young making the “major” admission that he was involved in McGuire’s death.
(2)The alleged location of her death in the jointly-owned home of Young and McGuire.
(3)Young’s involvement in the disposal of McGuire’s body.
(4)Young allegedly setting McGuire’s car on fire with her body in it.
(5)Young lying to multiple people about how McGuire died.
(6)Young sending messages to McGuire’s mother from McGuire’s phone which purported to be from McGuire indicating she was about to commit suicide (at the time he knew she was already deceased).
The 2 salient and stark facts said to arise from this were that: (1) McGuire was killed in the home she shared with Young; and (2) the rape is alleged to have happened next door to that home. This is in the context where only weeks separate when the offences allegedly occurred and only 2 or 3 months will separate what will effectively be back-to-back trials.[31]
[31]See Director of Public Prosecutions v Pell (Review of Suppression Order) [2018] VCC 2125, [20] (Kidd, Chief Judge), citing Chaarani v Director of Public Prosecutions [2018] VSCA 299, [45] (Maxwell P, Beach and Hargrave JJA); Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384, 392-393 [35]-[36] (Bathurst CJ, Beazley P and Hoeben CJ at CL); John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344, 353 [63] (Spigelman CJ, with whom Handley JA and MW Campbell AJA agreed).
Young submitted that it was unlikely that any future jury member in the County Court could fail to hear the details referred to in the preceding 2 paragraphs and that they would not be easily forgotten. This was particularly so when, in light of his plea of guilty to manslaughter, there will inevitably be a sentencing hearing and a sentencing of Young. Thus, it was submitted that, absent a suppression order, details of this case would continue to be the subject of publicity right up until the time of the rape trial.
Young emphasised that, in this digital age, once details have been published they will continue to remain available. In this regard, it was submitted that cases such as National Council of Australia Victoria Division (in liq); re Friedrich[32] and Re an application by the Age;R v Williams[33] are from a bygone era when media dissemination was far less prevalent.[34] However, it was submitted the fact that digital media is so widespread and that there is already publicity in circulation did not mean the court should abrogate its responsibility to provide an accused with a fair trial.[35]
[32](1989) 1 ACSR 164, see esp at 167.2 (Cummins J).
[33][2004] VSC 413, see esp at [32] (Kellam J).
[34]See also Talia v Director of Public Prosecutions (Unreported, Supreme Court of Victoria, 21 February 1995, 7-8, Beach J) and the cases there cited.
[35]Director of Public Prosecutions v Pell(Review of Suppression Order) [2018] VCC 2125, [43]-[45] (Kidd, Chief Judge); News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 271 [89]-[90] (Warren CJ and Byrne AJA).
Further, Young submitted the order being sought was not properly characterised as a suppression order, but was rather a postponement order.[36] If an order were made, the trial would still be in open court and the media would be free to attend. Ultimately, it was sought that the order would only continue for a very short number of days, perhaps 7 days, after the completion of the rape trial. Young submitted that, once that time arrived, the media would be free to publish the outcome and all the details of this trial leading up to the verdict. It was submitted there was no pressing need for the public to know about the conduct of this proceeding at the present time or as it unfolded.
[36]News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 258 [33] (Warren CJ and Byrne AJA).
Furthermore, it was submitted that a delay in the rape trial was not a legitimate alternative to a suppression order. It was contended any delay would be contrary to the due administration of justice, particularly because the complainant was a child of 16 years of age.
Moreover, Young submitted that the issues confronting him would not be alleviated by a change of venue for the County Court trial. Although it was stated an application would be made to move the County Court trial from Ballarat, it was submitted that there was no certainty such an application would be successful. Upon learning that the prosecution was amenable to that course of action, the defence correctly noted that the venue was still a matter for the County Court. In addition, Young referred to observations already made in this case about gender-based violence being nationwide and not being a matter confined to the Ballarat region.[37] Thus, it was submitted that wherever the trial was held in Victoria, Young would still be unable to get a fair trial in the County Court if this trial were the subject of the extensive publicity that is anticipated.
[37]Director of Public Prosecutions v Young [2025] VSC 46, [44] (Jane Dixon J).
In response to the prosecution’s submission that careful directions from the County Court trial judge would make a suppression order unnecessary, the defence referred to a number of authorities concerning the human factor of juries when confronted with highly publicised prejudicial information about an accused, the limitations upon directions, and the undesirability of straining those limitations.[38] Given the nature of the trial and the evidence that is to be led by the prosecution, it was submitted that the prejudice would be incurable and the County Court trial would be marred by impermissible tendency, coincidence or rank propensity reasoning.
[38]See for example Director of Public Prosecutions v Pell(Review of Suppression Order) [2018] VCC 2125, [28]-[47] (Kidd, Chief Judge) and the cases there cited; Nationwide News Pty Ltd v Farquharson (2010) 28 VR 473, 477 [15] (Maxwell P, with whom Nettle JA and Emerton AJA agreed).
In summary, Young submitted that if no suppression order were made, the significant and irremediable consequences would be:
(1)Potential jurors in the County Court trial would inevitably be exposed to continuing, widespread and extensive media coverage about the trial of this proceeding without the benefit of the protective directions that will be given to the jury in this court.
(2)The County Court trial would be conducted against the backdrop of the jury’s exposure to the trial in this court which would swamp the jury’s proper consideration of the County Court trial.
F. A proceeding suppression order is not necessary
F.1 General factual findings
Young has established that there is likely to be a large amount of publicity concerning this trial once it commences, not only within the media publications in Ballarat but also across the broader media landscape. Further, regardless of the outcome of the trial, the evidence to be led by the prosecution is highly likely to place Young in a very poor light concerning his dealings with McGuire and others. Accordingly, it is accepted that that information has the potential to be prejudicial to any trial in the County Court.
Further, on the evidence before the court on this application, it appears highly likely that the County Court trial will follow in a relatively short period after the conclusion of the trial in this court. Although nothing is certain (as the Pell cases demonstrate),[39] and the County Court trial may be delayed or may even not occur, the court must proceed on the evidence or sufficient credible information presently available in determining the probable unfolding of events.[40]
[39]A trial of the assault allegations the subject of the second proceeding was never held.
[40]Open Courts Act, s 14(1).
F.2 Not necessary to prohibit or postpone reporting of murder trial
As the cases referred to by the defence illustrate,[41] in some cases where back-to-back trials are to occur, publication of the first trial must be suppressed so that the accused is not subjected to a second trial which is unacceptably unfair such that the due administration of justice would not be served.
[41]See Director of Public Prosecutions v Pell (Suppression Order) [2018] VCC 905, [54] (Kidd, Chief Judge); Director of Public Prosecutions v Pell (Review of Suppression Order) [2018] VCC 2125, [10]-[11], [27], referring with approval to R v Nationwide News Pty Ltd [2018] VSC 572, [31] (Taylor J). See also Director of Public Prosecutions v Hazelwood Pacific Pty Ltd (Ruling 1) [2019] VSC 870 (Keogh J).
However, the fact that back-to-back trials are to occur does not mean a suppression order must be made with respect to the first trial. The question of necessity is to be considered on a case-by-case basis. It is only if the court is actually satisfied (not just suspects or believes) that the particular facts give rise to necessity that a court has the power to make a suppression order.[42]
[42]See, for example, John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344, 365 [95]-[96] (Spigelman CJ, with whom Handley JA and MW Campbell AJA agreed). See also par 16 above.
On the facts of this application, Young has not established that any suppression order is necessary. There are a number of reasons for this.
First, assuming for the sake of argument that a trial later this year in the County Court at Ballarat may be problematic (about which no findings are made) given the extent to which the local community has responded to the death of McGuire and other local women in more recent times, it would be entirely consistent with the due administration of justice for the County Court trial to be held elsewhere. I accept the prosecution’s submission that a trial held in Melbourne later this year would not carry with it the same potential risks of a trial in the County Court at Ballarat shortly after this murder trial has concluded in Ballarat.
Secondly, the defence’s submissions overstate the likely practical consequences of contemporaneous publicity of the trial to be held in this court. Lamentably, there are an unacceptably large number of women in Australia, including in Victoria, who have been killed at the hands of their domestic partner, including in recent years. Indeed, an article the subject of evidence adduced by Young on this application, which was first published on 10 July 2024 (and republished on 26 August 2024), listed 46 women “in the regions” whom it had been alleged were the subject of violence and killed so far that year. Most of these women were named, including McGuire.
Taking into account the “unforgettable facts” enumerated above, in the context of many cases involving domestic violence resulting in a fatality, the defence has not established that this case is or will be of such notoriety that it will be likely to be prominent generally in people’s minds in the broader Victorian community and remain part of their consciousness or readily activated memory for anything other than an insignificant period of time.
Thirdly, as an extension of the previous point and without any disrespect, although the publication of both McGuire’s name and Young’s name will be in the minds of persons exposed to coverage of this case in the immediate future both within and outside the Ballarat region, the evidence and credible information before the court does not establish that it is likely that the names of Hannah McGuire, or Lachlan or Lachie Young, will remain part of the consciousness of members of the Victorian community generally beyond an immaterial period of time.
Fourthly, the processes in place for the selection of any jury for the County Court trial are highly likely to be more than adequate in ensuring that members of the jury are selected on the basis that they will not bring any prejudice to their role by reason of knowing Young. Anyone knowing or believing they might know Young at the time the jury is selected for the County Court trial can be excluded. This may be implemented without any reference to the existence of this trial or its outcome. If necessary, a larger than normal jury pool could be arranged to ensure that a sufficient number of appropriate jury members may be selected.
Fifthly, while naturally it is accepted that the nature of media dissemination in the digital age means that there is a far wider circulation of, and accessibility to, media publications, it does not follow that such information is likely to be readily recalled by members of the community for a longer period of time than would have been the case before digital media. Indeed, without making any finding,[43] in an era of a rapid and ever-changing news cycle, it might be thought that information is less likely to be retained in people’s minds when it is read, heard or seen in circumstances where the recipient of that information knows the information is highly likely to be readily accessible again with a simple search.
[43]There was no evidence on this point.
In short, the ready availability of information does not necessarily have the consequence that such information will actually be retained by significant numbers of members of the community more permanently or definitively. Of course, once persons are selected to be on the jury, each of them will be instructed that they are prohibited from conducting any searches on the internet or otherwise “making an enquiry”.[44] Further, it will be explained to them that to do so would be a criminal offence.[45] The availability of information and the prospect of internet searches or other enquiries interfering with the orderly conduct of the trial is a commonplace issue dealt with by the courts on a regular basis. It must also be expected that any County Court jury will conform with the routine directions it would necessarily receive from a trial judge.[46]
[44]See Juries Act 2000 (Vic), s 78A(5).
[45]Ibid, s 78A(1)(b). It is also an offence for a member of a jury panel to do so: s 78A(1)(a) and (2).
[46]R v Glennon (1992) 173 CLR 592, 603.2 (Mason CJ and Toohey J), 614.3-615.3 (Brennan J). See also John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344, 367 [106]-[110] (Spigelman CJ, with whom Handley JA and MW Campbell AJA agreed) and the cases there cited.
Sixthly, unlike cases such as the 2 Pell proceedings,[47] the situation at hand does not involve similar or materially connected allegations. Although both trials will relate to events that occurred in Sebastopol in the first half of 2024, this information is not particularly memorable of itself. Further, a charge of rape is fundamentally different to a murder charge such that the members of a jury in the County Court are unlikely to be triggered into remembering a murder trial simply because details of an alleged rape in relation to a different alleged victim are disclosed to them. Furthermore, there was no suggestion that the same witnesses will be giving evidence in both trials.[48]
[47]Referred to respectively as the cathedral trial and the swimmers trial: Director of Public Prosecutions v Pell (Suppression Order) [2018] VCC 905, [4]-[5] (Kidd, Chief Judge). Both proceedings involved allegations of child sexual abuse.
[48]Cf Director of Public Prosecutions v Hazelwood Pacific Pty Ltd (Ruling 1) [2019] VSC 870, [47] (Keogh J).
Seventhly, it is unnecessary to repeat the various matters stated above concerning why open justice is ordinarily in the interests of the due administration of justice.[49] In circumstances where the defence have failed to establish any real or substantial risk of prejudice to the administration of justice that would make a suppression order necessary,[50] those principles governing the primacy of open justice must prevail.
[49]See pars 13-28 above.
[50]See the reference to “real and substantial risk” in s 18(1)(a): par 14 above.
Eighthly, on the question of the hearings in this proceeding that will inevitably take place subsequent to the trial, this is unlikely to create any real issues. If, as anticipated, this trial concludes in early August 2025, it would not be unusual for a sentencing hearing to be held 3 or 4 months after that time.
It is a common experience in this court that a convicted person will seek the advice of a psychiatrist or psychologist and, if appropriate, adduce opinion evidence from such professionals in making submissions on the appropriate sentence to be imposed. In recent years (in Victoria at least), the availability of appropriately qualified professionals has been limited, such that often it is not possible to have a sentencing hearing shortly after a trial concludes. There was no suggestion that the course of seeking professional opinion would not be adopted by the defence in this case.
In any event, if the due administration of justice required it, then the court could impose a short delay to the sentencing hearing and the imposition of a sentence.
F.3 Further observations
Some further observations should be made about the particular circumstances of this case.
There has already been a significant public interest in Ballarat concerning the allegations made in this proceeding and the upcoming trial. Except for an interim suppression order made only 4 days before this application was heard, there has been no order prohibiting publication. In this context, this significant community interest only goes to emphasise that it would, at this late stage, be contrary to the interests of justice to prevent the media from continuing to cover the proceeding by reporting on the trial in a timely manner.
Although the defence correctly stated that the hearing will be in open court and members of the public will be free to attend, there are obvious limitations in this regard. Most people have day-to-day commitments and do not have the ability or time to attend court. Many rely on the media to inform them about significant events, such as serious criminal trials. Further, on the assumption that a large number of people in the Ballarat community are interested in this proceeding, there are only limited seats available in court. It is entirely artificial to assume that, if publication of the trial were suppressed, those members of the Ballarat community who were interested in the conduct and outcome of the trial would be able to keep themselves properly informed.
It follows that, in the absence of contemporaneous reporting that is fair and accurate, the conduct of the trial would be highly likely to be the subject of misinformation, including dissemination of potentially significant misunderstandings, exaggerations and falsehoods.[51] Further, an order belatedly made would be likely to materially undermine the public’s confidence in the court’s processes.[52]
[51]See John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 481E (McHugh JA, with whom Glass JA agreed), referred to in J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10, 30.20; 45.25-30 (Fitzgerald P and Lee J).
[52]See par 13 above.
For completeness, the prosecution’s submission that, because of the publications already in the public domain, there would be little utility in making a suppression order, is rejected. The “unremarkable” publications to date would not have amounted to an obstacle to a suppression order if such an order had otherwise been established to be necessary.
Further, it has not been strictly necessary to decide whether it would be contrary to the due administration of justice for there to be any delay to the County Court trial. Accordingly, I have refrained from doing so. For the avoidance of doubt, the rejection of Young’s application does not involve rejecting (or accepting) his submission concerning the undesirability of delaying the County Court trial.
G. Conclusion
For these reasons, the application for a proceeding suppression order is dismissed.
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