Jason John Roberts v The Queen [No 2] - [2020] VSCA 188

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0232

JASON JOHN ROBERTS	Applicant
v
THE QUEEN [No 2]	Respondent

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JUDGES:	NIALL JA and TAYLOR AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 July 2020
DATE OF JUDGMENT:	23 July 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 188

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COURTS AND JUDGES – Criminal law and procedure – Potential murder retrial – Application for takedown order regarding article published in The Age – Court’s inherent jurisdiction – Whether real risk that article would substantially interfere with administration of justice in pending proceeding – Whether real risk of prejudice to an accused person’s right to a fair trial – Test not satisfied – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms A Beech with Ms K Ballard	Stary Norton Halphen
For the Respondent	Mr B Ihle	Ms A Hogan, Solicitor for Public Prosecutions
For The Age Company Ltd	Mr S White

NIALL JA
TAYLOR AJA:

On 25 March 2020, this Court granted to the appellant leave to appeal against his conviction for the murder of Sergeant Gary Silk and Senior Constable Rodney Miller at Moorabbin on Sunday 16 August 1998. The appellant was, together with his co-accused Bandali Debs, convicted in 2002. He was sentenced to life in prison with a non-parole period of 35 years.[1] An appeal against conviction was refused in 2005.
[1]By subsequent legislative amendment to the parole regime, the appellant is no longer entitled to parole.

His current appeal was made possible by recent amendments to the Criminal Procedure Act2009[2] that allow for second and subsequent appeals in limited cases based on fresh evidence. The Court’s decision on the appeal is presently reserved, and it follows, the outcome of the appeal is not known. Beyond acknowledging that the appeal may be dismissed and the conviction may stand or it may be allowed with the consequence that either an order of acquittal or an order for a new trial is made, it is not profitable to speculate as to its outcome. All that can be said is that the grounds were sufficient to attract a grant of leave to appeal and a further trial is possible.
[2]Sections 326A, 326C and 326D introduced by the JusticeLegislation Amendment (Criminal Appeals) Act 2019.

On 7 July 2020, the appellant’s solicitor wrote to the Registrar of the Court of Appeal referring to an article titled ‘Police murder probe far from over’ written by John Silvester and published in the print and online versions of The Age newspaper on 4 July 2020. The letter foreshadowed that the appellant would make an application for a ‘takedown order’ requiring The Age to remove the article from its website. The Court treated the letter as an application for an order which was listed before this Court on 13 July 2020. For the purpose of the present application, we shall refer to the appellant as the applicant.

In addition to the letter of 7 July 2020, the applicant filed written…

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: [2020] VSCA 188
Decision Date: 23 July 2020

CaseChat Overview and Summary

In the matter of Jason John Roberts v The Queen [No 2], the applicant sought a takedown order against an article published in The Age that pertained to his potential retrial for murder. The Federal Court was tasked with determining whether the article posed a real risk of substantially interfering with the administration of justice in the pending proceedings, or creating a real risk of prejudice to the applicant’s right to a fair trial.

The legal issues before the court were whether the article posed a real risk of substantial interference with the administration of justice, and whether it created a real risk of prejudice to the applicant's right to a fair trial. The court considered these issues in light of the inherent jurisdiction to prevent abuse of process and to protect the administration of justice.

The court found that the test for a takedown order was not satisfied. It held that the article, while critical of the applicant, did not pose a real risk of substantial interference with the administration of justice, nor did it create a real risk of prejudice to the applicant’s right to a fair trial. The court noted that the article did not contain any prejudicial information that was not already before the court or the public. Consequently, the application was dismissed.

No further orders were made by the court.

Orders