Dupas v Channel Seven Melbourne Pty Ltd - [2012] VSC 486

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] VSC 486
Decision Date: 19 October 2012

CaseChat Overview and Summary

The case of Dupas v Channel Seven Melbourne Pty Ltd involved an appeal against a conviction for murder. The court reserved its decision on the appeal and the possibility of a retrial if the appeal were to be upheld. The plaintiff, who was convicted of murder, sought to restrain the broadcast of a television program that allegedly included a confession by him to the crime. This application was to ensure that the trial would remain fair and unbiased. The court was required to consider the inherent jurisdiction it possessed to make a non-publication order and whether such an order was necessary in this instance.

The legal issues before the court revolved around the balance between the freedom of the press and the right to a fair trial. The plaintiff argued that the broadcast of the television program could prejudice any potential retrial, whereas the defendant argued that such an order would infringe upon their freedom of expression. The court had to determine whether it had the inherent jurisdiction to make a non-publication order and if such an order was warranted in this situation. The court also considered the relevant provisions of the Supreme Court Act 1986, sections 18 and 19, which dealt with the suppression of information in court proceedings.

The court held that it did not have the inherent jurisdiction to make a non-publication order to prevent the broadcast of the television program. The court found that the balance between freedom of expression and the right to a fair trial did not tilt in favour of suppressing the broadcast. The court reasoned that the freedom of the press was a fundamental right and that the potential prejudice to the plaintiff's retrial did not outweigh the importance of this right. The court was also mindful of the fact that the appeal against the conviction was still pending, and a retrial had not yet been ordered. Therefore, the court refused to grant the non-publication order, allowing the broadcast to proceed.

In conclusion, the court refused to make a non-publication order to restrain the broadcast of the television program that allegedly contained a confession by the plaintiff to the murder. The court found that it did not have the inherent jurisdiction to make such an order and that the balance of rights did not favour suppression. The refusal of the non-publication order meant that the broadcast could proceed, and the appeal against the conviction would continue to be determined by the higher court.

Orders