General Television Corporation Pty Ltd v Director of Public Prosecutions
[2008] VSCA 49
•26 March 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3727 of 2008
| GENERAL TELEVISION CORPORATION PTY LTD | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS and ‘A’ (an accused in a pending criminal trial) | Respondents |
| and | |
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Intervenor |
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JUDGES: | WARREN CJ, VINCENT and KELLAM JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 February 2008 | |
DATE OF JUDGMENT: | 26 March 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 49 | |
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APPEAL – Civil orders – Jurisdiction – Jurisdiction of trial judge to make orders in the nature of suppression orders – Inherent jurisdiction to make orders necessary for the fair trial of an accused - Orders purporting to bind every person in the jurisdiction are too wide - injunctive relief to restrain an apprehended contempt – Criminal law - Potential for publication of television series to prejudice a jury trial - Balancing right to a fair trial with freedom of expression - Supreme Court Act 1986, ss 17A(3) and 17A(4)
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Merkel QC with Mr CW Horan and Ms KL Walker | Johnson, Winter & Slattery |
| For the First Respondent | Mr J Rapke QC with Mr G Horgan SC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Second Respondent | Mr SA Shirrefs SC | Slades & Parsons Solicitors |
| For the Attorney-General (intervening) | Ms PM Tate SC with Ms J Davidson and Mr AM Dinelli | Victorian Government Solicitor |
WARREN CJ,
VINCENT JA,
KELLAM JA:
General Television Corporation Pty Ltd has appealed against orders of a judge of the trial division of this Court made on 15 February 2008, which in summary, prohibit the publication, broadcasting or exhibition of a television programme entitled ‘Underbelly’ until after the trial of ‘A’ has been completed. Alternatively, the applicant, if necessary, seeks leave to appeal the order of the trial judge.
Background
The background to the making of the orders is as follows. The trial of A for the murder of a person to whom we shall refer as ‘B’ is, and has been for some considerable period of time, fixed for hearing to commence on 31 March 2008. Amongst other witnesses, the prosecution intends to call as a witness a person to whom we shall refer as ‘X’.
On Thursday 7 February 2008, and at the request of the prosecution, a directions hearing took place before the judge who was listed to hear the trial of A. The purpose of the hearing was to consider the effect that a foreshadowed broadcast by Channel 9 (a television station operated by the applicant) of the program Underbelly might have upon the fair trial of A. The applicant had been informed previously of the nature of the directions hearing and was represented at the hearing of 7 February 2008 by senior counsel.
At the hearing, the information provided to the judge by counsel for the applicant was that Underbelly is a program of 13 episodes, one of which would be shown on Channel 9 throughout Australia each week for a period of 12 weeks. It was intended by the applicant that the first and second such episodes would be broadcast throughout Australia on television on Wednesday 13 February 2008. Thereafter it was intended that the following episodes would be shown on a weekly basis. In the course of the hearing the applicant, through its counsel, having at first declined to provide any material to the Court, offered to provide to the court copies of the first two episodes which it intended to broadcast on the following Monday 11 February 2008. However the applicant declined to provide the remaining 11 episodes, which were said to be ‘uncut’. The further hearing of the proceeding was then adjourned to enable the prosecution to issue and serve a subpoena upon the applicant seeking production before the court of copies of all 13 episodes of the program.
Upon the return of the subpoena on Monday 11 February 2008, DVD recordings of each of the 13 episodes were produced before the court. Counsel for the applicant informed the judge that episodes 1 and 2 were in the form in which they would be broadcast on the following Wednesday evening, but that the remaining 11 episodes were yet to be the subject of final editing. The proceeding was then adjourned until the following morning, to enable counsel for the parties and the judge to view the DVD recordings.
The next day, Tuesday 12 February 2008, the prosecution made application for an order that the ‘showing of this program on television be stayed until after the trial.’ It was submitted that such an order was necessary because the material in question would have an adverse effect on the right of the accused to a fair trial. At the conclusion of argument, her Honour made orders prohibiting ‘the transmission and publication of the television series Underbelly … by any television channel, free to air or cable/pay television in the State of Victoria until after the completion of the trial and verdict in the matter of R v [A]’. Her Honour also ordered that the television series referred to as ‘Underbelly’ not be published on the internet in Victoria.
On the following evening, Wednesday 13 February 2008, Underbelly was broadcast by Channel 9 throughout Australia, but in compliance with the order, television stations operated by the applicant in Victoria did not broadcast the program. It would appear, however, that some Victorians had access to the program either by way of videotape or through the internet. On Friday 15 February, and as a result of a newspaper report that a Melbourne publican had exhibited the first episode to his patrons the previous evening, the prosecution made application before her Honour to widen her orders. Two of those orders are the subject of this appeal. They are as follows:
1. The transmission, publication, broadcasting or exhibiting of the production referred to as ‘Underbelly’ be prohibited in the State of Victoria until after the completion of the trial and verdict in the matter of R v [A].
2. Direct that the television series referred to as ‘Underbelly’ not be published on the internet in Victoria and the ‘Family Tree site – inside the Underbelly, which looks at the evolving relationships between the key characters’ be prohibited until after the trial and verdict in the matter of [A].
The latter order related to a website operated by the applicant which enabled a person logging on to the website to understand the dramatis personae of both Underbelly and the so-called ‘Gangland Wars’, and the relationship between various persons including the accused, the deceased and others relevant to the forthcoming trial of A.
The murder of B is the specific subject of episode 12 of the program. Both A and X are referred to in episode 12, and although they are not identified by name, a juror, having heard evidence in the trial of A, would have little difficulty in recognizing that both A and X are portrayed in the episode. Her Honour was told by counsel for the applicant that although it was intended to commence broadcasting the program on 13 February 2008, episode 12 would not be shown prior to the trial of A. This concession appears to us to be based upon a sound understanding by the applicant of the serious risk that the portrayal of matters, the subject of the trial, would create in terms of the conduct of a fair trial. Obviously the portrayal of the very events which are the subject of a criminal trial at a time contemporaneous with the conduct of the trial would raise a serious risk of interference with the trial. However apart from episode 12, it is apparent that the applicant intended, unless restrained, to broadcast all other episodes of the program. Assuming that the program had commenced as intended, by the date of the commencement of the trial, episode 8 would be shown in the first week of the trial. The program would have continued on a weekly basis throughout the conduct of the trial, which was estimated before her Honour to take approximately four weeks to hear. As stated above, the applicant agreed that episode 12 would not be shown during the trial, but made no offer to refrain voluntarily from publishing the other episodes.
That said, however, episode 12 is not the only part of the television series which refers to B. He and or members of his family are portrayed in eight out of the 11 episodes preceding episode 12. He plays a major role in those episodes and in particular he is portrayed as having an association with large numbers of notorious people. These associations and the relationship between him and members of his family are the subject of various episodes of the series. Of course those associations and relationships are unlikely to be the subject of evidence in the trial, being generally irrelevant to any issue in the trial. Thus, if the other episodes are broadcast, irrelevant issues pertaining to the trial, be they fact or fiction, will be before both potential jurors and actual jurors during the course of the trial.
Jurisdiction of the Court to hear the Application
The first issue relates to the jurisdiction of this court to entertain an appeal from the orders of the judge. The DPP argues that, by reason of the provisions of s 17A(3) of the Supreme Court Act 1986 no appeal lies to the Court of Appeal from the orders made by the trial judge. Section 17A(3) of the Supreme Court Act is as follows -
(3) Except as provided in Part VI of the Crimes Act 1958, an appeal does not lie from a determination of the Trial Division constituted by a Judge made on or in relation to the trial or proposed trial of a person on indictment or presentment.
It is submitted by the DPP that the orders made by the trial judge were a determination made on or in relation to the trial of A, and were in the nature of suppression orders. It is argued that the nexus between the orders and the trial was immediate and apparent and was both temporal and evidentiary. In the alternative it is argued that the orders made by the trial judge were interlocutory in nature and by reason of the provisions of s 17A(4)( b) of the Supreme Court Act the appeal cannot be pursued without the leave of either the trial judge or the Court of Appeal.
Section 17A(4) relevantly states as follows:
(4) An appeal does not lie to the Court of Appeal—
…
(b)without the leave of the Judge constituting the Trial Division or of the Court of Appeal, from a judgment or order in an interlocutory application, being a judgment or order given by the Trial Division constituted by a Judge, except in the following cases—
…
On the other hand, the applicant contends that the orders made were orders which determined finally the question of whether the broadcast of Underbelly would be a contempt of court. It is submitted that leave to appeal is thus not required. In the alternative it is submitted that the orders made are injunctive and thus leave to appeal is not required by reason of s 17A(4)(b) of the Supreme Court Act 1986.
In Herald and Weekly Times v A Maxwell P and Nettle JA gave consideration to the meaning of s 17A(3).[1] In that case the trial judge had made an order that ‘the publication of any reference to the antecedents, current charge, or pending charges, or any reference which reflects adversely upon the credit of [A, B or X] in any media outlet, newspaper, radio or television station is prohibited until further notice’.
[1][2005]VSCA 189, [14]-[20].
Having considered Smith v The Queen[2] where the High Court held that the restriction in what is now s 17A(3) was not confined to determinations from which an appeal lay under Part VI of the Crimes Act, Maxwell P and Nettle JA nevertheless concluded that the Court did have jurisdiction to entertain the application to appeal the relevant order. They said:[3]
[2](1994) 181 CLR 338.
[3][2005]VSCA 189, [14]-[20].
Granted that we are constrained by the decision in Smith to give to s 17A(3) its ordinary meaning, it does not seem to us that an order directed to the world at large in terms of the subject order is one which, according to the ordinary meaning of language, is a determination “made on or in relation to a trial or proposed trial”.
It is not an order of the kind which is deemed by s 7 of the Crimes (Criminal Trials) Act 1993 to be part of the trial. Nor is it closely related to the trial in the sense in which an order to provide legal assistance for a trial or an order staying a trial is related to it. Nor is the subject-matter of the determination an integral part of the trial process, nor does it arise in the issue between the Crown and the accused formulated by the presentment. Judged, therefore, by reference to these three “helpful pointers”, recognized in England as providing guidance as to whether a decision is a matter “relating to trial on indictment” within the meaning of s. 29(3) of the Supreme Court Act 1981 (UK), it is difficult to see why this order should be judged a determination “in relation to a trial”.
As Gummow and Toohey JJ said in PMT Partners Pty Ltd v Australian National Parks and Wildlife Service,[4] the words “in relation to” – “are prima facie broad and designed to catch things which have sufficient nexus to the subject. The question of sufficiency of nexus is, of course, dependent on the statutory context.”
Interpreting a statutory phrase by reference to its context is necessary so that effect can be given to the legislative purpose. And it is the legislative purpose of s.17A(3) which is significant here. Its purpose, as the High Court recognised in Smith, was to avoid the fragmentation of criminal trials by appeals brought from rulings before or during the course of a trial.
This suggests that the phrase “in relation to” was intended to denote a quite direct nexus with the trial. Nothing said by the High Court in Smith requires any other conclusion. We think, moreover, that a privative clause like s.17A(3) should be strictly construed and that where – as here – there is a choice between a broader and narrower interpretation, the narrower should be preferred. This is especially so where – as here – the application of the privative clause would render the determination in question wholly immune from appeal. It is not lightly to be assumed that Parliament would have intended that result.
Accordingly, we conclude that s.17A(3) does not preclude an appeal from a suppression order of the kind in issue here. No question of fragmentation of the proposed trial arises. Framed as it is, the order lacks the direct nexus with the proposed trial which the phrase “in relation to” requires.
So to say is not to suggest that every form of suppression order may be appealed under s.17(2). Nor is it necessarily to imply that an order like the subject order but expressed in terms tying it more closely to a particular trial or proposed trial, may not come within s.17A(3). It may also be that the time at which such an order is made is relevant to the assessment of whether it is a determination within the meaning of the latter provision. For the present we confine ourselves to the conclusion that the order the subject of the application is not a determination “on or in relation to the trial or proposed trial of a person on indictment or presentment” within the meaning of s. 17A(3).
[4](1995) 184 CLR 301, 330.
On the same basis we conclude that the order the subject of the application before us is not confined by s 17A(3) and that the order made by the trial judge was not an order made ‘on or in relation to the trial’ of A.
We turn to the question of whether or not leave to appeal is required. This is not a matter which it is necessary for us to determine. We are of the view that taking into account the injunctive nature of the orders made by her Honour and other circumstances of the proposed appeal we would be inclined to grant leave, if leave to appeal is necessary.
We turn now to consider the grounds upon which the applicant relies.
Ground 1
1.The learned trial judge erred in making Orders 1 and 2 (“the Orders”) because:
(a)The orders exceeded the Court’s jurisdiction to make a suppression order;
(b)Alternatively, the orders were an improper exercise of any power the Court had to make a suppression order; and
(c)The orders, being in the nature of a final injunction to restrain a threatened contempt, ought only to have been made in an adversarial proceeding properly brought in the Court in accordance with the rules and procedures of the Court applicable to a proceeding for that relief.”
The applicant submits that the power to make a suppression order ‘is essentially directed at restraining publication of evidence, submissions and material that are before the court or that form part of the court file or record’. On this basis, it is submitted that although in her reasons the trial judge characterised the orders as being suppression orders they were, in substance, orders purporting to restrain an apprehended contempt of court by the applicant. As counsel for the applicant points out it is true that at all times both the trial judge and counsel for the prosecution referred to the relief sought by the prosecution as being suppression orders.
We accept that the orders made by the trial judge were not orders made pursuant to the specific statutory power granted to the court by s 18 of the Supreme Court Act.That section grants power, in the circumstances set out in s 19 of the Act, to make orders prohibiting publication of a report of the whole, or any part of a (civil or criminal) proceeding, or of any information derived from a proceeding. Clearly her Honour’s orders did not prohibit the report of a proceeding. However her Honour did not purport to make the orders pursuant to that statutory power. She said that she was making the orders because in all the circumstances considered by her it was ‘not possible for a fair trial to be achieved for [A]’.
Sections 18 and 19 of the Act are not the whole repository of the power of the Court to make suppression orders. In our view the judge held correctly that the Court has inherent jurisdiction to make orders necessary for the fair trial of an accused. Clearly, the usual exercise of that inherent jurisdiction consists of orders suppressing the publication of a part or parts of a proceeding or of evidence given or to be given in a proceeding. One usual example of this is the suppression of publication of the sentencing hearing of an accused who has pleaded guilty to offences shortly before his or her co-accused is to face trial. Notwithstanding that the usual suppression order is based upon sections 18 and 19 of the Supreme Court Act, it is clear that 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.[5] No doubt, on occasions, the exercise of that power, and duty, will be by way of an injunction to restrain an apprehended contempt of court.
[5]John Fairfax and Sons v Police Tribunal of NSW (1986) 5 NSWLR 465, 471 (Mahoney J).
There is ample authority to demonstrate that courts have power to restrain publication of extrinsic material so as to avoid such an apprehended contempt.
In The State of Victoria & Anor v Australian Building Construction Employees’ and Builders Labourers’ Federation, Gibbs CJ said:[6]
A superior court which has power to punish contempts, and which has power to issue injunctions, may grant an injunction to restrain a threatened contempt.
[6](1982) 152 CLR 25, 42.
The applicant accepts that this is so but points to the distinction between the power of a court to suppress a publication of its own proceedings and the power governed by the law of contempt. The applicant submits that a suppression order is essentially a matter between the Court and the parties before it, and is an interlocutory order usually made in the course of proceedings based on the court’s and the parties’ knowledge of the proceedings and the issues therein. By contrast it is submitted that an application for an injunction to restrain an apprehended contempt is an application for a remedy directed at particular persons and which is governed by the rules of evidence and the procedures of the court relating to such an application. It is argued that the party seeking the injunction must produce evidence to support the application and the person against whom the order is sought has a right to respond to that evidence and to adduce his or her own evidence and to put submissions as to why there is no apprehended contempt.
It is argued on behalf of the applicant that the trial judge was in error in granting what was in effect injunctive relief, without complying with the procedures of the court applicable to a proceeding to restrain an apprehended contempt. The applicant argues that the orders were made on the basis of material and evidence not known or disclosed to it, and thus it was not accorded procedural fairness.
The exercise of the Judge’s discretion
It is true that the application made before her Honour was not made in the civil jurisdiction of the Court by summons, supported by affidavits. The application came on before her Honour in circumstances of exigency. Indeed, at the time that the issue first arose before her she was in the course of conducting a separate criminal trial in Geelong. The matter arose in the context of whether the proposed publication of Underbelly in the weeks immediately before and during the trial created a real risk that publication would prejudice the trial seriously. Time was of the essence as the proposed publication of Underbelly was to commence very soon thereafter. In our view the fact that the process adopted did not follow the usual course in which a civil injunction might be sought must be considered in the light of all the circumstances, including the urgency of the matter and the fact that the power to be exercised by the judge was not merely to determine private rights between litigants, but was a power to ensure the right of the accused and the prosecution to a fair trial.
As Deane J said in Hinch v Attorney-General (Victoria):[7]
The right to a fair and unprejudiced trial is an essential safeguard of the liberty of the individual under the law. The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraints and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law.
[7](1987) 164 CLR 15, 58.
In our view it is apparent that the Court has inherent jurisdiction to make appropriate orders to ensure that right. It may be that a suppression order under s 18 of the Supreme Court Act is sufficient and adequate to ensure that right. It may be that a suppression order which goes beyond the circumstances contemplated by s 18 of the Supreme Court Act but exercised in the Court’s inherent jurisdiction is sufficient and adequate to ensure that right. It may be that a suppression order which is directed to the prohibition of publication of matters which have a significant risk of causing serious prejudice to the fair trial of an accused person is akin to an injunction to restrain a threatened contempt. However that does not mean that the exercise of such power must follow the usual inter partes process of seeking an injunction. The Court’s power to suppress publication is not circumscribed narrowly. It does not mean that the civil process of the issue of a summons supported by affidavits followed by application made to a Practice Court judge, is required. Indeed, it appears to us to be clear enough that on occasions the exercise of the Court’s power to protect the right to fair trial might be on the Court’s own motion. As Mahoney JA said in John Fairfax & Sons v Police Tribunal in relation to the power of a court to protect the identity of persons who were not parties or witnesses in the proceedings before it:[8]
The relationship which must exist between the proceedings and the necessity of the case on the one hand and the order made will depend upon the circumstances of the case.
[8](1986) 5 NSWLR 465, 472.
However we accept that the Court does not have power to ‘bind the world’ by a suppression order made in the exercise of its inherent jurisdiction to ensure a fair trial. As Maxwell P and Nettle JA said in Herald & Weekly Times Pty Ltd & Ors v A:[9]
[9][2005]VSCA 189, [28]-[29].
For present purposes it may be allowed that the court does not have power by a suppression order made in exercise of the inherent jurisdiction to bind the world at large. Ordinarily such orders bind in personam only the parties and other persons to whom they are directed. But it does not follow that a suppression order is invalid or inutile simply because it is not in terms directed to anyone in particular. Suppression orders of that kind are made every day of the week and they do bind parties and those who are in court and in effect those who receive notice of the orders. As McHugh JA explained in John Fairfax & Sons v Police Tribunal:
“Nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable the court to act effectively within its jurisdiction may constitute a contempt of court … the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice … “
Spigelman CJ put the matter even more precisely in John Fairfax Publications Pty Ltd v District Court (NSW) when his Honour said:
“In New South Wales a non-publication order made in the Supreme Court … is communicated to the major media by the court. The order may only formally bind persons who are present in court. However, the media are on notice that the communication of the prohibited matter to the media for publication must come, directly or indirectly, from a person who has breached the order. Knowledge of the order will be a material factor in any subsequent contempt proceedings against the media on the basis that the conduct intentionally frustrated a court order.”
The same is equally true of a suppression order made by the Supreme Court of Victoria in exercise of its inherent jurisdiction. (Citations omitted.)
The question therefore, is what do the circumstances require? Consideration of that question requires some consideration of the nature of the case before her Honour. Upon the hearing of the application before us, in his written submission the DPP outlined the nature of the prosecution case against A. We shall refer to it here in the barest detail. The murder with which A is charged took place approximately four years ago. A was committed for trial on 22 March 2007. The prosecution case is that X was approached by a person whom we shall call ‘D’ allegedly acting on behalf of himself and a person to whom we shall refer as ‘F’ shortly before the murder took place. The prosecution alleges that D ‘contracted’ with X to kill B. The motive for the killing is alleged to be related to enmities which had developed between D, F and B in the course of the so-called ‘Gangland Wars’. The prosecution contends that X recruited two others, E and A, to assist in the execution of B. The prosecution case is that X was engaged to do the driving, E was to be the lookout and A was to do the shooting. The Crown case is that the shooting took place as planned in premises frequented by B. The Crown case is that one week later X was contacted by D. Soon thereafter F paid X a substantial sum of money. The Crown case is that the shooting of B was captured by security cameras in the premises in which the shooting took place. The prosecution intends to call X to give evidence against A.
Although the applicant submits that the trial judge proceeded on the basis of ‘material obtained by the trial judge, but not otherwise in evidence before the Court, and not known’ to the applicant, it was not suggested before us that the substance of the case to be advanced at trial, as set out above, is unknown to the applicant, nor could such a suggestion be made credibly. It is apparent that the applicant was at all times well aware of the manner in which the Crown case was to be put before the jury. It is clear from the ‘credits’ of episodes 1 and 2 that members of Victoria Police have acted as ‘advisors’ to those producing Underbelly.[10] Furthermore, episode 12 of the series sets out in a detailed manner most, and more, of the circumstances alleged by the prosecution and referred to above. In our view, it is beyond argument that the publication of episode 12 to prospective jurors, and more specifically the exhibition of that episode during the conduct of the trial has the potential to constitute a most serious contempt of court. Indeed, it is difficult to conceive how the applicant’s advisors could ever have thought otherwise. Nevertheless, as stated above, before her Honour the applicant agreed not to broadcast episode 12. However her Honour did not consider that the deletion of episode 12 from the series would be sufficient to remove the risk of serious prejudice to the trial of A. Having seen the 12 episodes she said:[11]
The series explains, to a very large degree, the reason why [B] was ultimately murdered. That is really the subject of the trial of [A]. In this case [X] is giving evidence on behalf of the Crown. He is an accomplice and will have attached to that evidence, the very strong accomplice warnings that attach to such evidence. This whole series has an unfortunate aspect to it in that it tends to corroborate the version that is given by [X]. The victim [B] is also to a large degree made very human by this series and is shown as a grieving parent. [B] appears in episode 1 and continues to appear throughout. The murder occurs in episode 12. Episodes 10 and 11 prior to the murder have a significant impact in terms of [X] and [A] and their involvement with [D] and [F] which is of course exactly what [X] will be telling a jury, that is how he was contracted to become involved in this murder. Channel 9 have offered to not show episode 12 until after the trial of [A] is complete. It is unfortunate that I do not think that would be sufficient or even close to sufficient to prevent strong prejudice flowing to [A] in respect of his forthcoming trial.
[10]Further, although not known to the judge there is material before us which shows that actual members of the police force involved in the investigation of the ‘Gangland Wars’ play parts as ‘extras’ in the television program.
[11]R v A [2008] VSC 73, [4]–[7].
In addition, her Honour found that Underbelly is based upon real events and is being promoted by the applicant as a factual account of those events. She found that the dialogue in the series is a mixture of fact and fiction and that it would not be apparent to a viewer into which category a particular conversation falls. She found that the series explains to the viewer why it is that B was murdered.
She found that episodes 10 and 11 deal with the motive of D to contract with X to kill B. It should be observed that D is named and appears as a main character throughout the series. Indeed D is portrayed in every episode of the series.
It should be observed that the trial judge is a most experienced criminal judge who has presided as the trial judge in numerous cases associated with the so called ‘gangland killings’. All of the above findings were open to the trial judge.
In our view, having made such findings of fact, her Honour was entitled in the exercise of her discretion to make orders prohibiting the broadcast of Underbelly in Victoria by the applicant, and that she had ample power to do so in the interests of justice and in order to avoid the risk of serious prejudice to a fair trial. We shall return to the question of the width of the orders made by her Honour later in these reasons.
Ground 2
2.The learned trial judge erred in making the orders, being orders in the nature of a final injunction to restrain a threatened contempt of court, without a finding that the publication of the television series the subject of order 1 (“Underbelly”), or any revised form of the series, would constitute a contempt of court.
Accepting for the time being that the orders made by the trial judge were in the nature of a final injunction to restrain a threatened contempt of court, the test for liability for sub judice contempt is whether, as a matter of practical reality, the publication is shown to have a tendency to prejudice or embarrass particular legal proceedings.[12] Although the trial judge did not find specifically that the publication of Underbelly would constitute a contempt of court, it is beyond argument that she found not only that there was a real and definite tendency for the series to prejudice the trial of A, but that the publication would do so specifically. She said:[13]
It is my view that to have a series running on the Gangland Wars which will not relate to the persons who are witnesses, persons who are victims or victim, and the persons who are alleged to be those responsible for ordering the death of the deceased, running at the same time as the trial, makes it impossible for a fair trial to be achieved for A.
[12]Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 34 (Wilson J), 46 (Deane J), 70 (Toohey J), 88 (Gaudron J).
[13]R v A [2008] VSC 73, [9].
Clearly her Honour’s findings in this regard were open to her. There is nothing in this ground.
Ground 3
3.The learned trial judge erred in failing to accord the appellant natural justice.
(a)The learned trial judge proceeded on the basis that the orders were suppression orders and did not afford the appellant an opportunity to have access to the evidence and other material upon which the judge was acting, to adduce evidence in response or to address the factual and legal issue raised by the evidence and other material upon which she was acting;
(b)The learned trial judge proceeded on the basis of material obtained by the judge but not otherwise in evidence before the Court and not known to the appellant;
(c)The learned trial judge proceeded on the basis of the proposed trial evidence, which was not known or made available to the appellant;
(d)The learned trial judge proceeded to make final orders wider than those applied for and, in part, on her own motion.
The applicant was represented before the judge by senior counsel. No request was made to the trial judge for the provision of any material to the applicant. The issue arose in circumstances of considerable urgency. The Underbelly series was to commence being broadcast to the public within a matter of days after the matter was first drawn to the attention of the judge. The suggestion that the applicant did not know the basis upon which the trial was to proceed, strains credulity. As to this we make two observations. First, the applicant had extensive knowledge of the relevant events as borne out by the contents of the series itself and the assistance provided to it by Victoria Police.[14] Secondly, the reporting in the media of other gangland trials before her Honour was extensive and notorious. It is inconceivable that the applicant was unaware of the factual basis upon which the trial of A was to proceed. The applicant was about to broadcast a 13 episode television series which depicts in detail the parts allegedly played by the accused, the deceased and a major witness in the intended trial. The television series makes clear the basis of the motive of those alleged to have arranged the murder of B. The proposed publication goes to the very heart of the trial about to occur. There is no basis to say that the applicant was not accorded natural justice or that the judge proceeded on any basis which was not obvious and known clearly to the applicant. In our view she did all that she could in the urgent circumstances before her to give the applicant the opportunity to be heard and make submissions to her. Ultimately, an experienced criminal judge determined to make orders in a very urgent context to protect the right of A to a fair trial. The ground is not made out.
[14]See para [31] above.
Ground 4
4.The learned trial judge erred in failing to have regard to ss 7 and 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
This ground was abandoned on the second day of the hearing before us. However we observe that even if it was open to the applicant to rely upon the Charter in terms of the right of free speech, which we consider to be highly unlikely, then we would adopt the view of Richardson J in Gisborne Herald Co Ltd v Solicitor-General:[15]
The present rule is that, where on the conventional analysis freedom of expression and fair trial rights cannot be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial.
[15][1995] 3 NZLR 563, 575.
Grounds 5 and 6
5.The learned trial judge erred in not considering the public interest in receiving the information imparted by the broadcast of Underbelly or any revised version thereof.
6.The learned trial judge erred in balancing only the commercial interests of the appellant against the public interest in the proper conduct of the pending criminal trial.
It is appropriate to consider these two grounds together. The applicant argues that the trial judge ought to have had regard to the public interest in ‘receiving the information and the ideas imparted by Underbelly’. The first matter that might be observed is that based upon fact, as the television series is, nevertheless it is a ‘docu-drama’. It is clear to us that the 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. The entertainment value of the program is enhanced by the music used as background and sometimes by humorous narrative.
Her Honour concluded:[16]
It is not a situation that I have to, in my view, balance the public right to know. This is not the reporting of an event, this is a television series made for entertainment. Channel 9’s interests are commercial in that they seek to air this at an appropriate ratings period to ensure they get good ratings. From those good ratings they would hope to receive good advertising revenue.
In my view it is far more important that the criminal justice power works, than that a channel make a profit.
[16]R v A [2008] VSC 73, [12]-[13].
True, it is, that 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.
The balance to be struck was explained in the judgment of Jordon CJ in Ex Parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd[17] as follows:
It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.
[17](1937) 37 SR (NSW) 242, 249-50.
It is submitted by the applicant that her Honour should have considered the public interest in ‘information pertaining to the role of police in preventing and responding to organised crime’. It is not correct to say that her Honour did not consider the issue of balancing the public interest with that of the right to a fair trial. She did consider it and determined that the nature of the Underbelly program is such that it has no weight in the balancing exercise. On any view the weight of Underbelly as a matter of public interest in such an exercise must be seen as being extremely limited. As for the somewhat specious submission that the program imparts information to the public as to the role of police, it is difficult to see that Underbelly provides any information to the public significantly beyond that of any dramatized police television program. In our view there is nothing in this ground.
Ground 7
7. The learned trial judge erred:
(a)in refusing to adjourn the pending criminal trial, as applied for by the accused and initially not opposed by the Director of Public Prosecutors;
(b)in failing to afford the applicant with an opportunity to broadcast in Victoria a version of Underbelly different from the version of Underbelly proposed to be broadcast elsewhere.
(c)in failing to have regard to the risk of publicity being given by her orders to previous publications and other material dealing with the subject matter of Underbelly, including the book upon which Underbelly is based, and, as a consequence, that becoming public knowledge; and
(d)in making orders wider than those that were necessary or appropriate in al the circumstances.
With the exception of ground 7(d) to which we will return, these grounds establish no error. After viewing the subpoenaed DVDs, counsel for A did seek an adjournment of the proceeding. When pressed, Counsel for A declined to undertake not to seek a permanent stay of the prosecution of A at a subsequent time. Significantly, once the prosecutors viewed the DVDs they did not follow the adjournment path. Yet there is a very significant issue that arises. The accused is not the only party with an interest in the timing of his trial. For a variety of reasons there is a public interest to be served in having criminal trials proceed as soon as possible after the events with which they are concerned. These are of both a practical nature and as a matter of principle. In this case the trial of A will commence approximately four years after the death of B. Her Honour gave appropriate consideration to the question of adjourning the trial. She said:
It is important that persons who are charged with criminal offences have their trials heard as quickly as possible, that is recognised and enshrined in the Charter of Human Rights which came into force in Victoria at the beginning of this year. There are many practical reasons for it as well. If this trial was to be adjourned it would take an enormous amount of time, at least a year before one could contemplate re-listing the matter and in terms of re-listing this show would have been aired and possibly achieved what Channel 9 hopes of it and that is be in the lounge room of every person in Victoria not to mention around the country.
In our view her Honour was not in error in refusing to adjourn the trial.
In our view ground 7(b) has no substance. The trial of A was imminent. The first episode was to be shown within days. That episode portrays the deceased, B and members of his family in some detail. The second episode which portrays both B, his family and D was to be broadcast together with episode 1. Her Honour had to make an immediate decision and draft orders swiftly to meet pressing circumstances. It was not for her to suggest how to edit the series.
Pixelating faces and the use of anonymous names, as proposed by the applicant as a ‘Victorian Version’ would have achieved nothing. The jury, once empanelled, would have had no difficulty in establishing from the evidence put before them in the trial, the identities of various characters portrayed in the Underbelly series. In any event, the only concession made by the applicant before her Honour was not to broadcast episode 12 during the trial.
The suggestion that the trial judge should have had regard to the risk of publicity and controversy by reason of her orders and by reason thereof she should have adjourned the trial, is entirely without merit. That publicity does not identify the accused, the deceased or the witnesses to be called. The publicity was caused not by her Honour’s orders, but by the total indifference of the applicant to the interest of the community in the fair trial of A.
Ground 8
8.The learned trial judge erred in not taking into account the changes proposed by the appellant to Underbelly for broadcast in Victoria and, in particular, the changes proposed to episode 12 of Underbelly.
Her Honour did take into account the offer of the applicant not to broadcast episode 12. She referred to that matter specifically but said it would not be ‘even close to sufficient to prevent strong prejudice flowing to A in respect of his forthcoming trial’. The material before us does not reveal what ‘other changes’ were proposed by the applicant other than the withdrawal of episode 12 and the ‘Victorian Version’ to which we have referred. No error is revealed by this ground.
Ground 9
9.In the alternative, the learned trial judge erred in not limiting her suppression order to depiction of matters in, or likely to be adduced in evidence before her.
We have set out above [30] the basis upon which the prosecution puts its case against A. The deceased B and the persons alleged to have contracted with X to kill him are depicted in almost every episode of Underbelly. The dangers identified by the judge are clear. The series is based upon real events. The real names of a number of persons related closely to the events the subject of the trial are used time after time in the series. The conversations in the series are based partly upon transcript recognized by the judge as having been discovered by the use of listening devices and partly upon the imagination of the writer. Over a number of episodes the series explains the alleged motive for the murder of B. B appears throughout and is given a human face and personality by the actor portraying him. The order which is suggested by this ground as being appropriate would have been most difficult to frame and is entirely unrealistic. Had the judge ordered that any reference to A, B, his family, D, F and X be deleted there would have been little left of the series. Her Honour was not in error as is asserted by this ground.
Before returning to the issue of the width of the orders made by her Honour, we think it is appropriate to review briefly the circumstances in which her Honour found herself. Soon after the filing of the presentment on 22 November 2007 the date of the trial of A was fixed to commence on 31 March 2008. The applicant knew by at least 15 January 2008 that a criminal trial arising from the events portrayed in Underbelly was pending[18]. As we have observed the applicant had assistance from the police in the making of the series. It would be difficult to believe that the applicant was not alerted to the fact of the pending trial by virtue of the police advising it on the series much earlier in time and certainly by the latter part of 2007.
[18]On 15 January 2008 a solicitor from the Victorian Office of Public Prosecutions telephoned internal counsel for the applicant indicating that a related trial was pending and seeking a copy of the series from the applicant for viewing. The request was refused.
In consequence of advance publicity about Underbelly appearing on Channel 9 and elsewhere in the media the matter was brought on for hearing before her Honour on 7 February 2008. The applicant had been notified of the hearing and was represented before her Honour. Requests were made by the DPP on behalf of the applicant to provide the Office of Public Prosecutions with copies of Underbelly. The applicant refused to do so. At the hearing before her Honour on 7 February 2008, the applicant offered to produce episodes 1 and 2 to the court on the following Monday but refused to provide the ‘uncut’ episodes. The DPP subpoenaed all 13 episodes. On Monday 11 February 2008 DVDs of those episodes were produced pursuant to the subpoena. They were viewed by the judge and the prosecution and defence overnight and the parties returned to court the following day, which of course was the day before the applicant intended to broadcast episodes 1 and 2. In the course of that day, a day in which her Honour was otherwise conducting a criminal trial, she made her orders. She had little assistance from the parties as to the drafting of those orders.
The circumstances in which the prejudice to the fair trial of A arose were unusual indeed. As her Honour observed in the course of submissions:
I am unaware of a television show actually airing at the same time as a criminal trial about precisely the same event …
This was not a circumstance of some prejudicial television program being shown to an audience containing potential jurors many months ahead of trial as in R v Yau Kim Lam (No 1),[19] nor was it the circumstance of some newspaper article dealing with events the subject of a trial some months before the trial. Circumstances such as those are commonplace nowadays and judicial experience is that normally such circumstances can be dealt with by appropriate directions being given to a jury. The judicial experience is overwhelmingly that the corporate integrity of juries can be relied upon and that juries do comply faithfully with directions given by judges to put aside prejudicial material and to consider their verdict on the basis of the evidence put before them. As stated by Spigelman CJ in John Fairfax Publications Pty Ltd and Another v District Court of New South Wales and Others:[20]
[19][2004] VSC 264.
[20](2004) 61 NSWLR 344, 366.
There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity … Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them.
Furthermore as Kirby ACJ, as he then was, said in R v Yuill:[21]
There is an increasing body of judicial opinion, lately expressed, to the effect that whatever pre-trial publicity exists, jurors, when they take on the solemn responsibility of the performance of their duties in the courtroom, differentiate between gossip, rumour, news and opinion which they hear before the case and the evidence which they hear in the court in the trial in which they are empanelled.
The experience of trial judges in Victoria accords with those observations. In the light of that experience we turn to the circumstances before her Honour. What was proposed in this case was that a 13 part series dealing with the background to the ‘Gangland Wars’ and portraying in graphic detail as central characters the very persons associated with the trial of A was to commence being broadcast approximately six weeks before the trial of A. Not only was that so, but the intention of the applicant was that the television series would run contemporaneously with the trial. In our view whilst the judicial experience is that juries do listen to and comply with directions to put aside prejudice, the particular and heretofore unexplored presentation of circumstances placed the trial judge in an impossible position. By the time of empanelment, the series would have been at episode 8. The directions to be given to the jury panel would have been complex and would no doubt have resulted in large numbers of jurors being excused. Although judicial experience dictates that the trial judge would have a reasonable prospect of managing the empanelment of a jury notwithstanding some viewing of Underbelly by members of the Victorian community[22] the situation would be impossible for the trial judge if the program went to air generally in Victoria so as to run at the same time as the trial of A.
[21](1993) 69 A Crim R 450, 453-454.
[22]Whether by viewing illegal copies of the program, accidentally through television reception, when outside Victoria or otherwise.
Had a jury been empanelled the trial would have commenced with the prosecution case effectively being supported every Wednesday evening by the weekly ‘docu-drama’. The fact that the deceased, his family and the alleged ‘employers’ of X are depicted so graphically in the series would render it difficult for any juror to separate fact from fiction. Certainly what was seen on television by any juror would contemporaneously put colour and drama into the evidence being led by the prosecution. It would also introduce a mass of inadmissible material about B, D and F and their relationships with each other and others. The police who were involved in the investigation of the ‘gangland killings’ are portrayed as being heroic figures in the series. No doubt police will give evidence in the trial of A. The effect of the television series is to enhance their integrity and professionalism. Likewise the alleged victim of A is given a human face in the television series. The contemporaneous effect of these matters upon a jury cannot be measured. Her Honour concluded that those circumstances were such that it would make a fair trial impossible. It was open to her Honour to reach such a conclusion. In our view, and notwithstanding the great confidence the judiciary has in the integrity and fairness of properly directed juries, the insidious nature of such prejudicial and irrelevant material as would be likely to exist in this case in such circumstances, cannot be overstated.
Furthermore, it should be observed, as stated above, that not only is her Honour a most experienced criminal judge but she has a high degree of familiarity with and knowledge of both the background to, and the particular circumstances of the trial over which she is soon to preside. It is her obligation to secure the fair trial of A. In the particular circumstances of this case considerable weight must be accorded to her Honour’s conclusion that a fair trial was not possible without her intervention. Not only do we consider that it was open to her Honour to conclude as she did, but we have little doubt that the broadcasting of Underbelly in the weeks leading up to and during the trial would create a serious risk of prejudice to the conduct of a fair trial. The contemporaneous and graphic nature of the portrayal of central figures in the trial, their relationships with each other and the relevance of these relationships to the alleged motive to murder B are the issues of most concern in this regard.
Although the applicant does not concede such a risk, except impliedly in relation to episode 12, it is appropriate to note that the applicant submits before us that her Honour’s orders should be set aside, and that it should be allowed to broadcast the first three episodes. Counsel for the applicant informed us he had instructions to undertake to the Court not to broadcast any further episodes prior to 7 April 2004 and that seven days notice of intention to broadcast any further episodes would thereafter be given to the DPP in respect of each such episode. In our view such a proposal is completely unworkable. The prospect of the trial judge having to not only manage a complex and difficult trial and at the same time face the possibility of hearing applications related to the applicant’s television show is totally unacceptable. There would be a serious risk of interference with the orderly conduct of the trial in such circumstances.
We return to the issue of the width of the orders. The first matter to be considered is whether, as is submitted by the applicant, no prejudice could arise by reason of the broadcast of episodes 1 to 3 of Underbelly. Episode 1 is entitled ‘The Black Prince’ and involves matters relating to one Alphonse Gangitano. It is set during the year 1995. The period of time to which the episode refers is thus temporally separate from the matters connected to the trial. However, B and two of his sons are named and represented by actors in episode 1, as is D. This episode commences to describe the relationships which each of those parties has to each other and to other persons. Those relationships are portrayed as being relevant to the events which lead in due course to the death of B. Likewise in episode 2, B and members of his family and D are named and portrayed by actors. F is represented in the program by an actor but not named and his face is pixelated. Similarly, episode 3 is devoted principally to the family of B and their association with other alleged members of the ‘underworld’. It also refers in some detail to the alleged association between D and F.
Clearly the relationships between the deceased and members of his family and D and F, and the criminal activities in which they are portrayed engaging in as portrayed in episodes 1 to 3 are relevant to the manner in which the prosecution puts its case against A. In our view, taking into account the proximity of the trial and that fact, the judge rightly considered that the dramatic portrayal of matters of mixed fact and fiction which directly relates to the trial of A was a matter of most serious concern.
In this regard it must be remembered that it was the trial judge who was to be burdened with the obligation of providing appropriate directions to both a prospective jury panel and to any jury finally selected. In our view her discretion in relation to episodes 1 to 3, as with her discretion in relation to the other episodes, did not miscarry.
We turn now to the final matter of whether her Honour’s orders can be said to be too wide.
We accept that the jurisdiction to make such orders as those made by the judge extends ‘no wider than is necessary’ to secure the object of ensuring that justice is done.[23]
[23]John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476-477 (McHugh JA).
It should be observed that on 12 February 2008 her Honour made order 1 in the following terms:
The transmission and publication of the television series “Underbelly” be prohibited by any television channel, free to air or cable/pay television in the State of Victoria until after the completion of the trial and verdict in the matter of R v [A].
Subsequent to the making of that order, the DPP requested the matter to be mentioned further before her Honour on 15 February 2008. The applicant was again represented but by different senior counsel on this occasion. The prosecutor referred to a newspaper report that the first episode of Underbelly had been recorded interstate and played to the patrons of a hotel in Melbourne by the proprietor. The prosecutor submitted that the order made previously should be widened. After hearing submissions, the trial judge amended the order previously made by her to read:
The transmission, publication, broadcasting or exhibiting of the production referred to as “Underbelly” be prohibited in the State of Victoria, until after the completion of the trial and verdict in the matter of R v [A].
In our view that order was too wide. It purported to bind every person in Victoria.[24] Whilst we consider it is clear that a suppression order made pursuant to the power granted under s 18 of the Supreme Court Act, and indeed other orders made in the interests of justice pursuant to the inherent power of the Court may be expressed in very wide terms, it was not necessary for order 1 to be as wide as that finally drafted. In our view an order made against the applicant not to publish the program Underbelly in Victoria until after the completion of the trial was all that was necessary. Clearly, however, any person who with knowledge of the order sought deliberately to frustrate the effect of the order could be liable for a contempt of court.
[24]Maritime Union v Patrick Stevedores Operations [1998] 4 VR 143.
As McHugh JA said in John Fairfax and Sons v Police Tribunal:[25]
… conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court … the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice.
[25](1986) 5 NSWLR 465, 477.
We consider that order 1 should be recast in the following terms:
1. That General Television Corporation Pty Ltd and/or any related corporate entity be prohibited from publishing the television series ‘Underbelly’ or any part thereof in the State of Victoria until after the completion of the trial and verdict in the matter of R v [A].
However, the fact that the above order is directed against the applicant only should not be misunderstood. It should not be treated by persons other than the named applicant as giving them carte blanche to publish any part of Underbelly howsoever the same may have been obtained by them. Obviously, any person with knowledge of the order who saw fit to publish Underbelly in Victoria prior to the verdict in the matter of R v [A] would run a grave risk of being found to have committed a contempt of court.
Likewise order 2 is too wide in our view. It should be recast as follows:
2. That General Television Corporation Pty Ltd and/or any related corporate entity be prohibited from publishing on the internet in Victoria the ‘Family Tree website – inside the Underbelly, which looks at the evolving relationships between the key characters’ until after the trial and verdict in the matter of R v [A].
It is appropriate to observe that order 2 above is directed at the applicant and specifically at one aspect of a website within its control. We recognise that there is a considerable amount of material upon the internet which may be seen to relate whether accurately, or otherwise, to the matters which will be the subject of the trial. Indeed it was acknowledged by Counsel for the applicant that Channel 9 appreciated that once the program was broadcast nationally on 13 February 2008 there is a high likelihood that it would be downloaded from the internet and available worldwide to those who could access it. As observed by the High Court in Dow Jones v Gutnick[26] once an item is on the internet it is ’available to all and sundry without any geographic restriction’. This circumstance was entirely of the applicant’s own making. Obviously the immediate accessibility of such information will require clear directions from the trial judge to the jury. As has been observed in other cases, this accessibility poses substantial challenges for the administration of justice.[27]
[26](2002) 210 CLR 575, [39].
[27]DPP v Weiss [2002] VSC 153; R v McLachlan [2000] VSC 215; R v Cogley [2000] VSCA 231.
In John Fairfax Publications Pty Ltd v District Court (NSW)[28] Spigelman CJ suggested that legislative intervention may be desirable, and that in some cases the past practice of sequestering the jury may be necessary.
[28](2004) 61 NSWLR 344, 361.
However, although there is on the internet a large body of material which relates in one way or another, whether accurately or not, to some of the issues which will be the subject of the trial, we have every confidence that the jury empanelled in this trial will abide by the directions of the judge.
Furthermore, even if some members of the jury panel have seen some episodes of Underbelly prior to the commencement of the trial, we have no doubt that suitable judicial directions can be given to both the panel and to the members of any jury so as to ensure a fair trial. The issue of concern before the trial judge was not the issue of prejudicial publicity some time before trial. The serious risk of prejudice arises by reason of the contemporaneous and graphic nature of Underbelly being available to jurors immediately before and during the conduct of the trial.
The appeal should be allowed in part so as to vary orders 1 and 2 of her Honour’s order made on 15 February 2008 so as to accord with the recast orders set out in paragraphs 67 and 69 above. It should otherwise be dismissed.
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