Dupas v Channel Seven Melbourne Pty Ltd
[2012] VSC 486
•19 October 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S CI 2012 5782
| Peter Dupas | Plaintiff |
| v | |
| Channel Seven Melbourne Pty Ltd | Defendant |
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JUDGE: | KYROU J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 October 2012 | |
DATE OF JUDGMENT: | 19 October 2012 | |
CASE MAY BE CITED AS: | Dupas v Channel Seven Melbourne Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 486 | |
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CRIMINAL LAW – Appeal against conviction for murder – Decision on appeal reserved – Possible retrial if appeal is upheld – Proposed broadcast of a television program which includes an alleged confession by the plaintiff to the murder – Application to restrain the broadcast of relevant parts of the television program – Inherent jurisdiction of the court to make a non-publication order to ensure a fair trial – Application refused.
COURTS AND JUDGES – Application for suppression order in respect of the proceeding for a non-publication order – Supreme Court Act 1986 ss 18, 19 – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J F Desmond with R F Edney | Doogue & O’Brien |
| For the Defendant | R Merkel QC with R L Enbom | Corrs Chambers Westgarth |
HIS HONOUR:
The plaintiff seeks orders to restrain the defendant from broadcasting on a free-to-air television channel those parts of the mini series ‘Killing Time’ (‘Mini Series’) that portray his character purporting to confess to the Andrew Fraser character that he murdered Mersina Halvagis on 1 November 1997 (‘Relevant Segments’). The Mini Series comprises 10 episodes, the first two of which have already been broadcast. Unless restrained, the defendant will broadcast episodes 9 and 10, which contain the Relevant Segments, on 2 and 9 December 2012, respectively.
The plaintiff was convicted of the murder of Ms Halvagis on 9 August 2007 and, following a retrial, on 19 November 2010. His appeal against the 2010 conviction was heard by the Court of Appeal on 26 March 2012. The decision of the Court of Appeal remains reserved. The plaintiff seeks to prevent the Relevant Segments from being broadcast until after the publication of the Court of Appeal’s decision and any resultant retrial.
With the consent of the parties, I viewed episodes 1 to 3 of the Mini Series yesterday evening. They do not contain the Relevant Segments. The subject matter of the Relevant Segments can be inferred from the summary of Mr Fraser’s evidence set out in the affidavit sworn by the plaintiff’s solicitor on 15 October 2012. That affidavit describes the words and conduct of the plaintiff which are said to constitute a confession when the plaintiff and Mr Fraser were inmates at Port Phillip Prison.
Mr Fraser gave evidence of the alleged confession at the plaintiff’s trials for the murder of Ms Halvagis. Mr Fraser’s evidence was an important part of the Crown case and it may be assumed that, if the Court of Appeal orders a retrial, the evidence will retain its importance.
The plaintiff denies that he murdered Ms Halvagis and that he confessed to that murder to Mr Fraser.
Mr Desmond, who appeared with Mr Edney for the plaintiff, submitted that if the Relevant Segments are broadcast and the Court of Appeal orders a retrial, the plaintiff would be deprived of a fair trial because of the significant prejudicial nature of the Relevant Segments. Mr Desmond emphasised that the Relevant Segments constitute a re-enactment of key events which will be the subject of disputed evidence at any retrial. He submitted that the graphic portrayal of the disputed events in the dramatic context of a television program is likely to have a lasting impact on potential jurors.
The principles that are relevant to the exercise of the Court’s jurisdiction to make an order restraining the publication of material that would deprive an accused of a fair trial may be broadly summarised as follows:
(a) There is nothing remarkable or singular about extensive pre-trial publicity, especially in notorious cases, such as those involving heinous acts. That a trial is conducted against such a background does not mean that the unfair consequences of any prejudice thereby created can never be relieved against by the judge during the course of the trial.[1]
[1]Dupas v The Queen (2010) 241 CLR 237, 250-1 [36] (‘Dupas’).
(b) Prior to the empanelment of the jury, at the outset of the trial and in the charge to the jury, the trial judge can direct jurors about the need to act solely on the evidence led in court and to exclude from their considerations anything that they may have read, heard or seen outside the court. Such directions are designed to ensure that jurors will not be affected by pre-trial publicity in returning their verdict.[2]
[2]Dupas (2010) 241 CLR 237, 246 [21].
(c) The experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously.[3] It is assumed that, when they are properly directed by trial judges to decide cases in accordance with the law – that is, by reference only to admissible evidence led in court and relevant
[3]Dupas (2010) 241 CLR 237, 247 [26]; Nationwide News Pty Ltd v Farquharson (2010) 28 VR 473, 477 [15] (‘Farquharson’).
submissions, uninfluenced by extraneous considerations – juries comply.[4] The capacity of juries to do so is critical to ensuring that criminal proceedings are fair to an accused and thus is vital to the integrity of the criminal justice system.[5] It follows that, with proper directions to the jury, the trial judge is able to relieve against the unfair consequences of pre-trial publicity.[6]
[4]General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68, 84 [54] (‘Underbelly Case’); Dupas (2010) 241 CLR 237, 248-9 [28]-[29]; News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 267 [71]-[72], 280 [127] (‘Mokbel’).
[5]Dupas (2010) 241 CLR 237, 248-9 [29].
[6]Dupas (2010) 241 CLR 237, 247 [22].
(d) The confidence in the 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 the media’s respect for these constraints. It has also relied upon the Court’s power to make orders restraining publications which might breach these restraints. Such an order should not be made unless it is 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.[7]
[7]Mokbel (2010) 30 VR 248, 267-8 [73].
(e) The courts have always recognised that their ability to control pre-trial publicity prejudicial to an accused is limited. Nevertheless, the trial judge should do what he or she can in order to protect the rights of the accused to a fair trial and thereby to protect the integrity of its process.[8]
[8]Mokbel (2010) 30 VR 248, 271 [89]-[90].
(f) The test applicable to the determination of an accused’s application for a non-publication order is whether or not there is a real and substantial risk of prejudice to the fair trial of the accused.[9] That test involves a fact/value assessment.[10]
[9]Farquharson (2010) 28 VR 473, 474 [6].
[10]Farquharson (2010) 28 VR 473, 477 [19].
(g) A decision as to whether a risk is sufficiently real and substantial to warrant the exercise of the Court’s inherent power must have regard to the assumption that jurors will comply with their legal obligations under the Juries Act 2000 and judicial directions given during the course of the trial.[11]
[11]Mokbel (2010) 30 VR 248, 266 [68].
(h) Sections 18 and 19 of the Supreme Court Act 1986 (‘Act’) are not the whole repository of the power of this Court to make suppression orders. The Court has inherent jurisdiction to make orders necessary for a fair and unprejudiced trial.[12] A superior court has both the power and the duty to ensure that justice is done according to law and may make orders for the protection of those involved in proceedings before it.[13]
[12]Underbelly Case (2008) 19 VR 68, 75 [21], 76 [26]-[28]; Mokbel (2010) 30 VR 248, 258 [35], 260 [40], 261 [43], 277 [114], 279 [122].
[13]Underbelly Case (2008) 19 VR 68, 75 [21].
(i) On occasions, the exercise of that power and that duty will be by way of an injunction to restrain an apprehended contempt of court. Courts have power to restrain publication of extrinsic material so as to avoid such an apprehended contempt.[14]
[14]Underbelly Case (2008) 19 VR 68, 75 [21]-[22]; Mokbel (2010) 30 VR 248, 266 [68].
(j) Any exercise of the power to suppress publication involves balancing the interests of society in ensuring that a fair trial takes place against the competing interests of freedom of expression.[15]
(k) Commercial considerations are relevant on an application such as the present. However, as a matter of principle, such considerations must take second place to the public interest that no conduct should be permitted which is likely to prevent a litigant in a court of justice from having his or her case tried free from all matter of prejudice.[16]
(l) The purpose and effect of a non-publication order is not to suppress the publication of information in which the public may be interested; it is rather to postpone its publication until the moment has passed when the publication would pose a serious risk or impediment to the proper administration of justice.[17]
[15]Underbelly Case (2008) 19 VR 68, 81 [41].
[16]Farquharson (2010) 28 VR 473, 477 [16].
[17]Mokbel (2010) 30 VR 248, 258 [33].
Mr Merkel QC, who appeared with Ms Enbom for the defendant, submitted that the Court’s jurisdiction to make a non-publication order to ensure a fair trial of an accused is confined to situations where there is a pending criminal trial. According to Mr Merkel QC, the Court’s jurisdiction is not engaged in the present case because there is no pending criminal trial, and there will not be such a criminal trial unless and until the Court of Appeal orders a retrial. Mr Merkel QC contended that, even if an order for a retrial is imminent, until such an order is made, a non-publication order cannot be made.[18]
[18]The plaintiff did not contend that the broadcast of the Relevant Segments would prejudice the fair hearing and determination of the appeal to the Court of Appeal. Accordingly, I need not discuss the issue of whether a non-publication order can be made if it would have the effect of prospectively defeating an order for a retrial sought by a convicted person from the Court of Appeal.
Mr Merkel QC relied upon James v Robinson.[19] In that case, the High Court held that the publication of matter likely to affect a criminal trial is not punishable as a contempt if at the time of publication there is no pending criminal trial.
[19](1963) 109 CLR 593 (‘James’).
In my opinion, James is not determinative of this issue, as it dealt with a criminal charge for contempt of court, rather than an application in the civil jurisdiction of the Court to restrain publication of material that has a real and substantial risk of prejudice to the fair trial of an accused. The tenor of the authorities to which I have referred is that the Court’s inherent jurisdiction is sufficiently broad to give effect to the fundamental public interest in ensuring a fair trial for an accused. For example, in the Underbelly Case, the Court of Appeal stated that the inherent jurisdiction to make a non-publication order to ensure the fair trial of an accused ‘is akin to an injunction to restrain a threatened contempt’ and ‘is not circumscribed narrowly’.[20] The Court did not say that the inherent jurisdiction is constrained by the principles that define the commission of a contempt of court.
[20]Underbelly Case (2008) 19 VR 68, 76 [28].
In any event, it is not necessary for me to reach a final view on this matter because, for the reasons that follow, I am not persuaded on the balance of probabilities[21] that the broadcast of the Relevant Segments would create a real and substantial risk of prejudice to a fair trial of the plaintiff.
[21]Mokbel (2010) 30 VR 248, 263 [55].
In 2010, the plaintiff was convicted of the murder of Ms Halvagis following a trial by jury. The jury’s guilty verdict has legal effect and is not provisional in any sense. The plaintiff’s appeal to the Court of Appeal does not alter the binding nature of his conviction. It is true that, if the plaintiff succeeds in his appeal, the Court of Appeal could quash the conviction and order a retrial. However, unless and until such an order is made, there could not be any relevant prejudice to the plaintiff from the broadcast of the Relevant Segments. It follows that the plaintiff’s concern about prejudice is not a current, operative concern, but a contingent one. There is no way of quantifying the prospects of that contingency materialising.
Mr Merkel QC submitted that the plaintiff’s application is premature and hypothetical. He emphasised the possibility that the Court of Appeal may dismiss the plaintiff’s appeal prior to the broadcast of the Relevant Segments. Mr Merkel QC contended that the best way for the Court to deal with the plaintiff’s concerns is to leave it up to the judge presiding at any retrial to take steps to ensure a fair trial, rather than making non-publication orders in advance based on hypothetical circumstances.
While I accept that the authorities emphasise the critical role of the trial judge in ensuring a fair trial, the authorities also highlight the importance of non-publication orders in advance of a trial where such orders are necessary to prevent circumstances arising which would seriously prejudice a fair trial.
Even if it is assumed in favour of the plaintiff that there is a realistic prospect that the Court of Appeal will quash the conviction and order a retrial, such a retrial is unlikely to take place until well into 2013. The absence of temporal proximity is a relevant consideration. Prejudice to the plaintiff could only arise at a retrial in 2013 if any persons who are selected to serve on the jury view the Relevant Segments and remember them at the time of the trial. For present purposes, I am prepared to assume in the plaintiff’s favour that there is a risk – which cannot presently be quantified – that individuals who view the Relevant Segments will be selected as jurors for a retrial in 2013 and that they will remember those segments at the time of the trial.
I am also prepared to assume in the plaintiff’s favour that there is no public interest, as distinct from entertainment value, in the broadcast of the Relevant Segments. While it purports to be based on true events, the Mini Series expressly acknowledges that its scrips have been ‘fictionalised and dramatised for entertainment purposes’. As the Court of Appeal said in relation to the ‘Underbelly’ television series in General Television Corporation Pty Ltd v Director of Public Prosecutions:[22]
[T]he principal purpose of the series is that of entertainment. This it does by the graphic portrayal of violence and the salacious behaviour of many of those portrayed.[23]
[22](2008) 19 VR 68.
[23]Underbelly Case (2008) 19 VR 68, 80-1 [39].
The Court of Appeal in that case also said that ‘[o]n any view the weight of Underbelly as a matter of public interest … must be seen as being extremely limited’.[24]
[24]Underbelly Case (2008) 19 VR 68, 81 [43].
The affidavit sworn by the defendant’s solicitor on 18 October 2012 demonstrates that the plaintiff’s conviction for the murder of Ms Halvagis and his alleged confession to Mr Fraser have been the subject of extensive publicity over many years. These matters are well and truly in the public domain and can be accurately described as ‘notorious’. That notoriety already exists. It will not be created by the broadcast of the Relevant Segments. The events depicted in the Relevant Segments are themselves in the public domain, having been broadcast on a Foxtel channel in November and December 2011. The Mini Series, as broadcast on Foxtel, can be downloaded from the internet and viewed. In addition, the events in question are described in Mr Fraser’s book, ‘Killing Time: Lunatic Soup’, which is available for purchase in several bookshops and as an eBook.
It is true, as Mr Desmond submitted, that the broadcast of the Relevant Segments will add to the volume of prejudicial material that is already in the public domain. The Relevant Segments, however, will not alter the nature or content of that material. They will simply repeat what the public has already been exposed to over many years.
In the event of a retrial, the plaintiff would be entitled to make applications to the trial judge for appropriate directions to ensure the trial is fair. Given the notoriety of the matters to which I have referred, it would be expected that the trial judge will give strong directions to the jurors that they must base their decision solely on the evidence that they see and hear at the trial and must put out of their minds anything about the case that they previously saw or heard in the media or elsewhere. As I have already indicated, it is the experience of this Court that jurors understand such directions and comply with them. Compliance with such directions by the jury empanelled to hear any retrial of the plaintiff will overcome any prejudice that might otherwise arise from the broadcast of the Relevant Segments and ensure that the plaintiff receives a fair trial.[25]
[25]Underbelly Case (2008) 19 VR 68, 84 [54].
The broadcast of a prejudicial television program to an audience containing potential jurors in some circumstances may constitute a contempt of court.[26] For this reason, broadcast media must act responsibly and with appropriate restraint. However, where prejudicial material is broadcast many months ahead of a trial, judicial experience is that normally such a circumstance can be dealt with by appropriate directions to the jury.[27] That must be particularly so where, as in this case, it is not even known whether there will be a trial.
[26]Underbelly Case (2008) 19 VR 68, 78 [31], 85-6 [55]-[56], 88 [73].
[27]Underbelly Case (2008) 19 VR 68, 84 [54], 88 [73].
Accordingly, the plaintiff has not established any legal basis for the grant of an injunction restraining the broadcast of the Relevant Segments.
The plaintiff has also sought an order under ss 18(1)(c) and 19(b) of the Act suppressing details of the present application, on the basis that the making of such an order is necessary in order not to prejudice the administration of justice.
As the plaintiff has failed to establish that the broadcast of the Relevant Segments would create a real and substantial risk of prejudice to a fair trial, it must follow that publication of the details of the present application cannot prejudice the administration of justice. Accordingly, a suppression order is not warranted.
I will make an order dismissing the proceeding.
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