Jason John Roberts v The Queen [No 2]
[2020] VSCA 188
•23 July 2020
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 submissions dated 10 July 2020 but did not adduce any evidence on the application apart from tendering a copy of the article. The Age Company Limited appeared to oppose the application and filed a written submission in response. It did not adduce any evidence. The Director of Public Prosecutions (‘DPP’) also appeared and neither supported nor opposed the application but made some additional submissions to which it will be necessary to refer.
Before coming to the terms of the article and the submissions in support of the application, it is necessary to say something briefly about the context. The background facts are more fully set out in the reasons for judgment of the Court on the leave application. In very short summary, Sergeant Silk and Senior Constable Miller were murdered after they intercepted a car outside a restaurant in Moorabbin on 16 August 1998.
A main aspect of the prosecution case is that the applicant and Debs were in the car, and they had been involved in a series of armed robberies of restaurants in the area. At his trial, the applicant denied being involved in the robberies, denied being in the car or involved in the shooting and said that the jury could not be satisfied that there were two offenders as distinct from one acting alone. A central plank of the prosecution case was that there were two offenders.
As part of its case, the prosecution adduced evidence of a dying declaration made by Senior Constable Miller, which indicated that there were two offenders. Evidence to that effect was given by five police officers, one of whom was Senior Constable Pullin. A number of other police officers who were present alongside Senior Constable Miller did not hear him say words referring to two offenders and at least one of them heard him refer to a single offender. The prosecution also relied on a contemporaneous recorded communication over police radio which referred to two offenders who had left the scene on foot.
For reasons that are explained in the decision on leave to appeal, a statement of Senior Constable Pullin that was taken on the morning of the shooting was altered in significant respects approximately 10 months later and this fact was not disclosed to the accused. This fact, together with other evidence about police malpractice in relation on to the taking and recording of statements, was uncovered in the course of an investigation undertaken by the Independent Broad-based Anti-corruption Commission (‘IBAC’). In large part, the applicant’s appeal is based on the fact that police statements were doctored, malpractice in the investigation and material non-disclosure by the prosecution.
The article
Mr Silvester is a well-known and experienced Age journalist and columnist who writes mainly about crime and related matters.
By way of general observation, the article is relatively lengthy, contains considerable detail and canvases a range of possibilities. It is largely built on material that is in the public domain, including material which emerges from hearings in this Court and in media reports of IBAC’s investigation. It is fair to say that its overall tenor tends to understate the potential significance of the alteration to police statements. However, it is by no means entirely one-sided. For example, it states that: ‘[i]f police fabricated evidence to ‘prove’ there was a second offender (which had to be Roberts) the conviction is unsound.’
The article sets out the background, aspects of the IBAC investigation and the appeal. It informs the reader that the Pullin statement had been altered, and that this practice had been exposed by IBAC. It provides some explanation for why there may have been alterations to the statement based on the chaotic and traumatic nature of the night of the shooting. It also canvases other evidence against the applicant and Debs. It finishes on an inconclusive note.
Applicant’s submissions
The applicant submits that, in the exercise of its inherent jurisdiction, this Court has the power to order that the article be taken down from The Age website. He submits that the power to make such an order is enlivened where the order is necessary for the administration of justice because of a real risk of prejudice to an accused person’s right to a fair trial. He submits that this principle applies because there is the potential for a trial in the event that he succeeds in his appeal and the article is highly prejudicial to him. He does not contend that the article impermissibly interferes with the proceedings in this Court.
The applicant relies on eight matters that he submits cumulatively justify the order.
First, he submits that there is a real risk that a potential juror will read the article and remember aspects of it. And, having read it, a potential juror may return to it in the future, particularly when there is current discussion about the case, for example, when judgment is given in the Court of Appeal or the matter returns to Court. Further, a juror empanelled on the trial may search for it on the internet. The applicant submits that there is an immediate and future risk that potential jurors will read the article, resulting in significant prejudice to him.
Within that context, the balance of the eight matters are advanced to show why the article is highly prejudicial.
The second matter is that he submits the article contains inaccurate statements. In that respect, the applicant points to five parts of the article:
(a) The article says that there were no witnesses to the shooting when in fact there were a number of witnesses who saw the car before it was intercepted and a number of officers who arrived in the immediate aftermath of the shooting.
(b) The article states that five officers heard Senior Constable Miller refer to more than one offender but does not say that at least one other heard him refer to one offender, and this was a misleading omission.
(c) The article says that the applicant denied the shooting but the jury did not believe him and this wrongly implies that he gave evidence at his trial and was not believed.
(d) The article indicates that the applicant pushed for a review of his conviction when the sentencing laws changed to remove the possibility of parole and he was ‘ultimately resentenced by Parliament’ when he had always maintained his innocence.
(e) The article contains a photofit image. The caption to that image says that the image ‘cannot possibly be Debs, which means there must have been two men present’.
Third, the article refers to the following matters that would be inadmissible on any future trial:
(f) Senior Constable Pullin (whose statement was later altered) suffered from PTSD, which would only arouse sympathy in a jury;
(g) IBAC had investigated and may find that there were no ‘fake facts’ in the altered statements;
(h) the police and OPP were confident of a conviction on any retrial; and
(i) a transcript of a covert recording between Debs and a third party (not the applicant) in which Debs uses the first person plural in referring to the incident, eg: ‘we drove … they seen us so they drove behind us’. The words ‘we’ and ‘us’ are in bold italics in the article. Further, words which were not recorded in the conversation have been added in the article in square brackets that make it clear that the conversation is about the Silk and Miller shooting. Also, the transcript may be unreliable.
Fourth, the article contains strongly expressed, inadmissible opinions of the author which are framed as fact, including that the depiction in the photofit ‘cannot possibly be Debs’ and that ‘there must have been two men present’.
Fifth, the article mischaracterises the role of IBAC and downplays the evidence revealed at IBAC hearings that specifically related to the investigation of the murder of Silk and Miller.
Sixth, the extract of the covert recording of Debs, referred to above, combined more than one recording and the additions removed potential ambiguity or uncertainty that were present in the original recording.
Seven, the article was published in a major Victorian newspaper, which has a wide readership, and Mr Silvester is a well-known journalist whose opinions are likely to carry weight with the reader.
Finally, although there has been wide coverage of the original murder, the first trial, the steps to overturn the conviction and the Court of Appeal case, the article contains new information or expressions of opinion and the material is brought together in a concise and compelling way that would be very prejudicial to the applicant in any new trial.
The applicant accepts that none of the matters, on their own, would be sufficient to justify the takedown order but, when considered cumulatively, it is apparent that there is a real risk of prejudice in pending proceedings.
The Age’s submissions
The Age opposes the takedown order on the basis that there is no real risk of substantial interference with the administration of justice. In assessing that risk, it is noted that the appeal has not been decided and may not succeed. It is a matter of speculation as to whether there will be a trial in the future. Even in that event, it is a matter of conjecture as to whether a potential juror will have read and recalled or will come to read the article and, even then, it is not established that the contents of the article are relevantly prejudicial in a way that could not be addressed by appropriate directions from the trial judge.
When combined, the significant uncertainty as to the future means that the applicant has not established a real risk of prejudice to the administration of justice.
DPP’s submissions
The Director neither supports the application nor the article, nor opposes the application. The Director made three oral submissions.
First, no member of the Office of Public Prosecutions (‘OPP’) nor anyone on the Director's behalf has been in communication with the author of the article about the case. Counsel observed that the statement that the OPP are confident of a conviction on a retrial may be an inference drawn from the submissions made to this Court in the appeal.
Second, the admissibility of the audio transcript between Debs and the third party is not as straightforward as the applicant submitted. The applicant has made admissions since his original conviction — regarding an agreement with Debs to conceal the murders and taking active steps to lead the police on different chains of enquiry — and there is a real question as to whether those admissions or communications may be said to be in furtherance of some conspiracy. In addition, Debs may be a witness in a retrial,[3] which could give rise to consideration of the admissibility of the transcript.
[3]Counsel for the applicant submitted that the applicant never made any submissions or any indications of calling Debs in a trial and that counsel for the DPP had referred to indications made in relation to a previous proceeding.
Counsel also noted that the audio and transcript were before the original jury who were instructed to have no regard to it when considering the applicant’s guilt or innocence. In addition, the transcript (in its relevant entirety) was set out in full in the Court’s original appeal decision.[4]
[4]R v Debs [No 3] [2005] VSCA 66, [28] (Vincent JA).
Third, it should be assumed that any jury in a potential retrial would adhere to directions given to them, including in relation to the admissibility of evidence.
Applicable principles
As noted, the applicant relies on the inherent jurisdiction of the Court to found his application. The Age does not dispute that this Court has the jurisdiction to make an order of the kind sought in an appropriate case. In News Digital Media Pty Ltd vMokbel,[5] this Court, by majority, set aside an order requiring media outlets to remove articles from their websites, however, the jurisdiction to make the order was not doubted.
[5](2010) 30 VR 248; [2010] VSCA 51 (‘Mokbel’).
In the context of a freezing order, the High Court said in PT Bayan Resources TBK v BCBC Singapore Pte Ltd:
‘Jurisdiction’ is a word of many meanings. The term ‘inherent jurisdiction’ has been described as ‘elusive’, ‘uncertain’ and ‘slippery’. The difficulty is minimised if the term is confined to its primary signification: to refer to the power inhering in a superior court of record administering law and equity to make orders of a particular description. For present purposes, inherent jurisdiction can be used interchangeably with ‘inherent power’. [6]
[6](2015) 258 CLR 1, 17 [38]; [2015] HCA 36 (French CJ, Kiefel, Bell, Gageler and Gordon JJ) (citations omitted).
The power extends to make orders which are necessary for the effective exercise of the Court’s jurisdiction.[7] In Grassby v The Queen, Dawson J acknowledged the ‘elusive’ character of inherent jurisdiction, but said:
… it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power.[8]
[7]Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7; Keramianakis v Regional Publishers Pty Ltd (2009) 237 CLR 268, 280 [36]; [2009] HCA 18 (French CJ).
[8](1989) 168 CLR 1, 16 (Dawson J), 4 (Mason CJ and Brennan J agreeing), 21 (Toohey J agreeing), 5 (Deane J relevantly agreeing); [1989] HCA 45. The same passage was approved in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, 451 [50]; [1999] HCA 19 (Gaudron, Gummow and Callinan JJ).
In the context of criminal trials, the Court has the powers to make such orders as are necessary to secure a fair trial and to prevent an abuse of its own process. It includes making suppression or non-publication orders so as to prevent a contempt of court.[9]
[9]Chairperson of the Royal Commission into the Management of Police Informants v DPP [2020] VSCA 184, [52]–[60] (Beach, McLeish and Weinberg JJA).
Although this Court is not dealing with a statutory power, authority supports the proposition that an order of the kind sought can only be made where it is necessary.[10] The order must be necessary to achieve the purpose of protecting the administration of justice. It will be satisfied where there is a real or substantial risk of prejudice to an accused person’s right to a fair trial that can only be ameliorated or avoided by the making of the order.[11] The requirement for it to be necessary is deliberately a high hurdle.
[10]Mokbel (2010) 30 VR 248, 258–9 [35], dealing with suppression orders, and 267–8 [73], dealing with internet orders; [2010] VSCA 5 (Warren CJ and Byrne AJA); R v Perish [2011] NSWSC 1102.
[11]The Herald and Weekly Times Pty Ltd v [A] [2005] VSCA 189; [25], [30]–[32] (Maxwell P and Nettle JA); Friedrich v Herald and Weekly Times Ltd [1990] VR 995, 1005 (Kaye, Fullagar and Ormiston JJ); Re applications by Chief Commissioner of Police (Vic) for leave to appeal (2004) 9 VR 275 [2004] VSCA 3; Scott v Scott [1913] AC 417, 437–8 (Lord Haldane); John Fairfax & Sons Pty Ltd v Police Tribunal of NewSouth Wales (1986) 5 NSWLR 465, 476–7 (McHugh JA).
The Court must make an assessment as to whether the impugned publication is likely to prejudice the fair trial of the accused. The focus is on the impact on the trial not the probity, or lawfulness or social utility of the publication.[12] Much will depend on the issues in the trial and the content of the publication. The time between the publication and the pending trial will also be relevant and any assessment must take into account the diminishing impact that arises from the passage of time. Such an assessment is more difficult where the article remains online and can be accessed into the future. In those cases, it will be necessary to factor in the possibility that a potential juror may download the article in the future.
[12]Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 263 FLR 211, 226 [53]; (2012) 83 NSWLR 52; [2012] NSWCCA 125 (Basten JA) (‘Ibrahim’).
In Mokbel, Warren CJ and Byrne AJA said:
… the Court has inherent power to restrain the apprehended publication of material which would, if published, produce a real risk that the material would interfere substantially with the administration of justice in a pending proceeding, and thereby constitute a contempt of court. There may be a question in a given case if the apprehended publication was likely to occur, as to whether it would be likely to come to the attention of a potential juror or jurors. This question may involve a consideration of the form and manner of the publication, including, in the case of publication on the internet, whether it is on a website, on Facebook, YouTube or otherwise, for this will bear upon its accessibility to jurors or potential jurors. A decision as to whether a risk is sufficiently real or substantial to warrant the exercise of the court’s inherent power must also have regard to the assumption that jurors will comply with their legal obligations under the Juries Act2000, in particular s 78A, as well as judicial directions given during the course of the trial.[13]
[13]Mokbel (2010) 30 VR 248, 266 [68]; [2010] VSCA 51 (citations omitted).
The reason why the hurdle is set high lies in the impact of the order. As Basten JA observed in Ibrahim, an order of the kind sought might be made in two contexts: to constrain publication of material described or derived from court proceedings; and publication of material having no connection with court proceedings but which has the capacity to affect current or future proceedings.[14] The first impinges on the open court principle and the latter impinges on the public interest in debate and discussion of matters of general importance and freedom of speech more generally. In dealing with the first, whether an order is necessary to protect the administration of justice has to take into account the importance of open courts to the administration of justice.[15]
[14](2012) 263 FLR 211, 226 [51]; (2012) 83 NSWLR 52; [2012] NSWCCA 125.
[15]Hogan v Australian Crime Commission (2010) 240 CLR 651, 664 [30]; [2010] HCA 21 (French J, Gummow, Hayne, Heydon and Kiefel JJ) (‘Hogan’)
The proposed order would have the effect of restraining the continuing publication of the article on The Age website. In the present case, the article was informed by, and involves a discussion of, the arguments presented in this Court on the appeal. Much of the content, including contentious pieces of evidence, were canvassed in the argument on the appeal. It follows that the proposed order, if made, would likely impede the reporting of the arguments on the appeal and any decision. Secondly, the murders of the two police officers is notorious and a matter of great public interest, as are the arguments that have been aired in the appeal, which concern allegations of police malpractice or misconduct. An order would significantly impact the freedom to discuss and report on these matters.
Of course, it is implicit in the inherent power to restrain publication of prejudicial material and pre-trial argument or evidence that an order may impinge on the open court principle, and the freedom of the press. However, the impact of an order should not be forgotten or lightly put aside. It is why the order can only be made where necessary and not because it is reasonable, convenient or sensible.[16]
[16]Hogan (2010) 240 CLR 651, 664 [31]; [2010] HCA 21 (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).
Decision
The applicant disavows any suggestion that the publication of the article, and its maintenance on The Age’s website, could influence this Court in the resolution of the appeal. He was correct to do so.
He focuses on the impact on a potential juror in the event his appeal is allowed and a new trial ordered. He calls in aid the line of authority concerned with the making of orders to prevent a threatened interference with a trial. Those cases are premised on there being a trial and relate to the period between the laying of a criminal charge and its determination by a jury. Of course, they include cases where information is derived from a completed trial, including the fact of conviction, but only where there is another pending charge against the accused or co-accused. In each case there is an extant charge and the accused is awaiting or undergoing the trial.
Those cases proceed on the assumption that there is to be a trial, and the accused has a right to a fair trial. It is a very different exercise if the question of whether there is to be a trial is itself uncertain. Presumably, any assessment of the likelihood of prejudice would need to factor in the probability of there being a new trial. Although it is not uncommon for interlocutory orders to take into account the prospects of success in the proceeding, such orders are to protect the process of the Court that is then engaged. Here there is no interference with the proceedings on foot.
Further, where, as in this case, a conviction has been recorded, it is artificial to talk of the applicant having a right to a fair trial in the future. He has no right to a trial unless and until there is an order allowing his appeal. His conviction is not provisional. To treat the possibility that there might be a new trial as simply another variable in a calculation on the likelihood of future risk is to misapprehend the present status of the applicant.
Applying the approach taken in cases concerning pre-trial publicity to convicted persons would also introduce significant problems in the reporting of convictions and arguments on conviction appeals. In many conviction appeals, argument revolves around the admissibility of contentious items of evidence, and of course the conviction itself is a given. On the applicant’s approach, reporting of convictions and arguments in appeals would have to take into account the possibility that there might be a future trial in the event the appeal succeeds. If accepted, it is liable to significantly stifle reporting of convictions and appeals. It would undermine the ability to discuss freely convictions and trials if it were necessary to have an eye on the possibility the conviction may be overturned and a new trial ordered.
In our view, the cases that deal with pre-trial publicity are inapplicable in the context of a person who has been convicted and has appealed the conviction but the appeal has not been determined. Given that the applicant does not say that the article prejudices his appeal, and because there is no pending criminal trial or undetermined charge, it is not necessary to make the order at this point to protect the administration of justice.
In any event, we are not persuaded that it is necessary to make the order having regard to:
(j) the content of the article;
(k) the vast amount of material already published concerning the investigation and prosecution of the murders;
(l) the uncertainty as to whether the article will be accessed and, if accessed, remembered by a potential juror;
(m) the time at which any trial might be held in the future, assuming the applicant is successful in his appeal; and
(n) the ability of the trial judge to give appropriate directions to the jury about ignoring extraneous material, directing them not to undertake their own online searches and only deciding the case based on the evidence.
Given the length of the article and the amount of material canvassed in it, it is unlikely that any particular parts of it would be remembered by a reader for any length of time. It is much more likely that, having read the article, its contents would form part of the background information that readers will have gleaned from the myriad reporting of the murders, investigation and subsequent trial. The particular facts and inferences that might be drawn are not of the indelible kind that is likely to stick in the reader’s mind. Nor is the presentation of them unduly sensational. Its conclusion is inconclusive. This case is different to publication of the fact that a person has been convicted of other offences which, once known, may not easily be forgotten. It is most improbable that a person reading the article now would be influenced by its contents in the event that the person is empanelled on a jury sometime in 2021.
Of course, as the applicant points out, unless taken down, the article will remain accessible on The Age website. There is no evidence before the Court as to the likelihood that the article would be identified or located using an Internet search engine and how prominently it would feature in the results of a search. Presumably, as the amount of reporting in relation to the trial, the appeal and any future trial grows, the likelihood that this article would feature prominently in the results of a search would correspondingly diminish.
As in Mokbel, even if the article has the potency the applicant attributes to it in the event that it is downloaded by a potential juror close to the time of the trial, at this stage, the prospect of that occurring is entirely speculative. This Court is unable to draw any conclusions as to the likelihood that a juror will inadvertently come across the article or else search for it at a time sufficiently proximate to the trial as to give rise to a real risk of prejudice.
Further, for the reasons that follow, we are not presently satisfied that the matters articulated by the applicant have sufficient force on their own, or in combination, to justify an order at this stage.
Dealing first, with the alleged inaccuracies. In our view, we are not persuaded that the matters referred to are clearly wrong nor do they invite the reader to draw an obviously erroneous inference. The statement that ‘[t]here were no witnesses when the police were fatally shot’ is correct. It does not imply that there were no witnesses in the immediate lead up or aftermath of the shootings. The reference to five officers hearing the dying declaration does not imply that there were no other officers present who did not hear it, indeed that point is made expressly in the article, which notes that ‘others at the scene didn’t hear the reference’ to two offenders. The statement that the first jury did not believe the applicant’s denials does not carry with it an inference that he gave evidence and any jury will be directed to ignore the outcome of the first trial. The suggestion that the applicant only recently denied his guilt does not emerge from the article and is unlikely to be viewed as significant in the scheme of any trial. The final matter concerns the photofit caption which we shall deal with separately below.
Even if the applicant is correct in his submission that the article contains the identified errors and omissions, we are not satisfied that those mistakes, at this point, give rise to any appreciable or irremediable prejudice. Any trial would be of substantial length and involve a great deal of evidence. The suggestion that a juror would be prejudiced in assessing the facts at trial because of mistakes or omissions in this article is fanciful.
Next, it is true that the article refers to material that may be inadmissible on any retrial. For a jury to be exposed to prejudicial and inadmissible material obviously gives rise to potential concerns. In our view, the only parts of the article that come close to disclosing material of significance that may not be before the jury are the extracts of covert recordings of Debs and the caption below the photofit. In our view, the force of those parts of the article are likely to dim with the passage of time.
The former concerns a conversation to which the applicant was not a party. It would not be appropriate for this Court to say anything about whether or not the recording may be admissible. That issue may be informed by the course of the trial. We cannot see any basis for the caption to be admitted as evidence at a trial.
On the assumption that the quote from the recording is inadmissible, that part of the article, and the insertions into the quote, has some potential to prejudice the trial in the event that it was read by a juror at a time proximate to the trial. We note that at the first trial the recordings were admissible against Debs but not the applicant. The jury were instructed not to use them in the case against the applicant. The fact that the jury heard them did not mean that the trial was unfair and it is to be presumed the jury followed the directions of the judge. Further, the extracts appear in the public domain for example in the judgment of the Court of Appeal on the first appeal.
In any event, on the material before the Court, there is no evidential basis to conclude that the article might be read by a potential juror and we are not satisfied on the material that the risk of prejudice by reason of that part of the article remaining on the website is real or substantial at this stage. We hold the same view in relation to the caption to the photofit. We are also not satisfied at this stage that any such prejudice could not be adequately addressed by appropriate directions from the trial judge. What we have just said also deals with the sixth matter relied on.
The balance of the matters relied on by the applicant can be referred to briefly.
The fourth and seventh matters can be dealt with together. We accept that the article contains some opinions although, in our view, these are moderately expressed. Further, we should proceed on the basis that The Age newspaper and Mr Silvester may be viewed as reliable sources of information that the reader could rely on. However, in the context of a long and complex trial, and with the firm directions of the trial judge that would be necessary given the notoriety of the murders, and the vast amount of material that would be accessible online, we doubt that the article is likely to be accorded any weight in the mind of a juror so as to prejudice the course of the trial.
The fifth matter contends that the article mischaracterises the role of IBAC and downplays the evidence revealed at IBAC hearings. We do not accept that the references in the article to IBAC would have the tendency to prejudice the trial. The references are brief, and the critical point is that certain evidence was given before IBAC about police practice. What IBAC made of that material, or its role, is not likely to be material and it is most unlikely to remain imprinted on the mind of the reader.
We also do not place any weight on the final matter. It is true that the article brings together some of the threads and explains in overview how the matter comes to be before the Court of Appeal. However, those matters will not be a surprise to any jury nor impede their ability to consider the evidence in accordance with their oath and with assistance of the judge’s directions.
Conclusion
We are not persuaded that a takedown order is necessary in circumstances where no new trial has been ordered. We are not persuaded that the matters complained of are of a kind that would require this Court to act.
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