John Fairfax Publications Pty Ltd v District Court of New South Wales

[2004] NSWCA 324

Reported Decision: 50 ACSR 380
148 A Crim R 522
61 NSWLR 344

Court of Appeal

CITATION:	John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors [2004] NSWCA 324
HEARING DATE(S):	14 May 2004
JUDGMENT DATE:	15 September 2004
JUDGMENT OF:	Spigelman CJ at 1; Handley JA at 113; Campbell AJA at 114
DECISION:	Declaration that orders prohibiting publication of certain matters beyond power; orders quashed.
CATCHWORDS:	CRIMINAL LAW - jurisdiction, practice and procedure - prohibition of publication of verdict - where single indictment but three separate trials ordered - implied jurisdiction of District Court - necessity to serve administration of justice - no implied power to order non-publication of a verdict - COURTS AND JUDGES - proceedings in open court - where order for non-publication of verdict directed at media alone - no power to direct such order to parties unrelated to proceedings
LEGISLATION CITED:	Corporations Act 2001 (Cth) Crimes Act 1900 Criminal Procedure Act 1986 s 46 District Court Act 1973 s 166 Jury Act 1995 (Qld) s 69A Supreme Court Act 1970 ss 22, 23
CASES CITED:	Attorney General v Leveller Magazine Limited [1979] AC 441 Attorney General v Mirror Newspapers Limited (1961) 62 SR (NSW) 421 Attorney General v Times Newspapers Limited [1992] 1 AC 191 Attorney General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 Attorney General (NSW) v Mirror Newspapers Limited [1980] 1 NSWLR 374 Attorney General (NSW) v Mundey [1972] 2 NSWLR 887 Barron v Attorney General (NSW) (1987) 10 NSWLR 215 Byrnes v The Queen (1999) 199 CLR 1 Connelly v Director of Public Prosecutions [1964] AC 1254 Cooke v Purcell (1988) 14 NSWLR 51 Coulter v The Queen (1988) 164 CLR 350 Daubney v Cooper (1829) 109 ER 438 David Syme & Co Limited v General Motors-Holden's Limited [1984] 2 NSWLR 294 Dickason v Dickason (1913) 17 CLR 50 Dietrich v The Queen (1992) 177 CLR 292 Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 DPP v Weiss [2002] VSC 153 Ex parte Attorney General; Re Goodwin (1969) 70 SR (NSW) 413 Ex parte The Queensland Law Society [1984] 1 Qd R 166 Gilbert v The Queen (2000) 201 CLR 414 Grassby v The Queen (1989) 168 CLR 1 Harris v Calladine (1991) 172 CLR 84 Herron v McGregor (1986) 6 NSWLR 246 Hinch v Attorney General (Vic) (No 2) (1988) 164 CLR 15 HM Advocate v Beggs (No 2) [2002] SLT 39 Independent Publishing Co Limited v Attorney General of Trinidad and Tobago [2004] UKPC 26 Jackson v Sterling Industries Limited (1986) 69 ALR 92 Jackson v Sterling Industries Limited (1987) 162 CLR 612 Jago v District Court of New South Wales (1989) 168 CLR 23 John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 181 ALR 694 Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 McKinney v The Queen (1991) 171 CLR 468 McPherson v McPherson [1936] AC 177 Moevao v Department of Labour [1980] 1 NZLR 464 Murphy v The Queen (1999) 167 CLR 94 Nicholas v The Queen (1998) 193 CLR 173 Parsons v Martin (1985) 5 FCR 235 R v Bell (unreported, New South Wales Court of Criminal Appeal, Spigelman CJ, Abadee and Ireland JJ, 8 October 1999) R v Bijkerk [1999] NSWCCA 114 R v Burrell [2004] NSWCCA 185 R v CAL (unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, Smart and James JJ, 18 February 1993) R v Clement (1821) 4 B & Ald 219 R v Cogley [2000] VSCA 231 R v Crowther-Wilkinson [2004] NSWCCA 249 R v D'Arcy (2003) 140 A Crim R 303 R v Dudko (2002) 132 A Crim R 371 R v Hubert (1975) 29 CCC (2d) 279 R v K [2003] NSWCCA 406 R v Long (2002) 128 A Crim R 11 R v MacFarlane; Ex parte O'Flanaghan & O'Kelly (1932) 32 CLR 518 R v McLachlan [2000] VSC 215 R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208 R v Milat (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Meagher JA and Newman J, 26 February 1998) R v Noud; Ex parte MacNamara [1991] 2 Qd R 86 R v Savvas (unreported, Supreme Court of New South Wales, Hunt J, 30 August 1989) R v Sheikh [2004] NSWCCA 38 R v Smith (1996) 86 A Crim R 308 R v Socialist Worker Printers and Publishers Ltd; Ex parte Attorney General [1975] 1 QB 637 R v Tate (1979) 46 FLR 386 R v VPH (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Newman and Sully JJ, 4 March 1994) R v Yuill (1993) 69 A Crim R 450 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 Re Forbes; Ex parte Bevan (1972) 127 CLR 1 Ridgeway v The Queen (1995) 184 CLR 19 Rockett v Smith; Ex parte Smith [1992] 1 Qd R 660 Russell v Russell (1976) 134 CLR 495 Scott v Scott [1913] AC 417 SG v DPP (NSW) [2003] NSWCA 128 SG v DPP (NSW) [2003] NSWSC 413 Solomons v District Court of New South Wales (2002) 211 CLR 119 The Queen v Glennon (1992) 173 CLR 592 TKWJ v The Queen (2002) 212 CLR 124 United Telecasters Sydney Limited v Hardy (1991) 23 NSWLR 323 Walton v Gardiner (1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509 Wunsch v South Australian Police (1995) 64 SASR 203 X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575
PARTIES :	John Fairfax Publications Pty Limited (First Claimant) Nationwide News Pty Limited (Second Claimant) District Court of New South Wales (First Opponent) Gregory Joseph Fisher (Second Opponent) Commonwealth Director of Public Prosecutions (Third Opponent)
FILE NUMBER(S):	CA 41216/03
COUNSEL:	T Blackburn SC / D Sibtain (Claimants) I McClintock SC (Second Opponent) R Sutherland SC (Third Opponent)
SOLICITORS:	Freehills (Claimants) Malcolm Johns & Co (Second Opponent) D B Thomson (Commonwealth DPP) (Third Opponent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0459; 02/11/1158
LOWER COURT JUDICIAL OFFICER :	Norrish DCJ

34

CA 41216/03

SPIGELMAN CJ
HANDLEY JA
CAMPBELL AJA

Wednesday 15 September 2004

JOHN FAIRFAX PUBLICATIONS PTY LTD & ANOR v DISTRICT COURT OF NEW SOUTH WALES & ORS

FACTS

In December 2003, Gregory Fisher was found guilty of six breaches of the Corporations Law, on the first of three groups of charges to be tried separately in the District Court. During the course of the trial of the first group of charges, Norrish DCJ made a number of suppression and non-publication orders, culminating in an order that there be no publication of any material revealing the verdict of the jury. The Claimants applied to Norrish DCJ to revoke all non-publication orders previously made. His Honour did revoke the previous orders, but replaced them with orders that there be no publication by the electronic and/or print media of the guilty verdicts or of the terms of his judgment on the application to revoke the non-publication orders. The Claimants sought declarations and orders quashing the non-publication orders made by Norrish DCJ.

HELD
(per Spigelman CJ, Handley JA and Campbell AJA agreeing)

A.
As the District Court has no express power to make a non-publication order of the character made by Norrish DCJ, the question is whether a power to make orders of this character is necessarily implied by the conferral of a criminal jurisdiction on the District Court. [30], [34], [35], [36]

Grassby v The Queen (1989) 168 CLR 1, Jago v District Court of New South Wales (1989) 168 CLR 23 applied; Jackson v Sterling Industries Limited (1987) 162 CLR 612, Byrnes v The Queen (1999) 199 CLR 1, Solomons v District Court of New South Wales (2002) 211 CLR 119, TKWJ v The Queen (2002) 212 CLR 124 referred to.

B.
The District Court possesses a narrow jurisdiction to make non-publication orders in a number of well-established categories. [43], [48]

John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 applied; Ex parte The Queensland Law Society [1984] 1 Qd R 166, Attorney General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342, John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131, R v Smith (1996) 86 A Crim R 308 discussed; R v Socialist Worker Printers and Publishers Limited; Ex parte Attorney General [1975] 1 QB 637, Attorney General v Leveller Magazine Limited [1979] AC 440, Independent Publishing Co Limited v Attorney General of Trinidad and Tobago [2004] UKPC 26 referred to.

C.
The District Court has no implied power to order non-publication of a verdict. Adjournments and stays are ordinarily sufficient to ensure a fair trial without this alleged additional power. Express statutory authority would be required to permit considerations of convenience and efficiency to justify such an order. [55], [63]

Jago v District Court of New South Wales (1989) 168 CLR 23 applied; Moevao v Department of Labour [1980] 1 NZLR 464 discussed; David Syme & Co Limited v General Motors-Holden’s Limited [1984] 2 NSWLR 294 referred to.

D.
A non-publication order directed, and directed only, to persons unrelated to the proceedings is beyond power. [84], [89]

John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, Independent Publishing Co Limited v Attorney General of Trinidad and Tobago [2004] UKPC 26 applied; Attorney General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 discussed; R v CAL (unreported, NSW Court of Criminal Appeal, Hunt CJ at CL, Smart and James JJ, 18 February 1993), R v Sheikh [2004] NSWCCA 38 referred to; R v Clement (1821) 4 B & Ald 218 distinguished.

E.

Even if a power existed, Norrish DCJ erred in law by applying an inappropriate test and relying on insufficient matters to make the non-publication orders. Further, on the facts, the proper test of necessity could not be satisfied. In the circumstances of this case, his Honour’s orders constituted a legal error in the exercise of a discretion. [91]-[92], [96], [99], [101], [111]

ORDERS
Declaration that orders (c) and (d) made by Norrish DCJ on 19 December 2003 prohibiting the publication of matters referred to in those orders were beyond power. Declaration that Norrish DCJ erred in making those orders, in that matters relied on by his Honour were insufficient in law to warrant the making of the orders. Order quashing orders (c) and (d) made by Norrish DCJ on 19 December 2003.

CA 41216/03

SPIGELMAN CJ
HANDLEY JA
CAMPBELL AJA

Wednesday 15 September 2004

JOHN FAIRFAX PUBLICATIONS PTY LTD & ANOR v DISTRICT COURT OF NEW SOUTH WALES & ORS

Judgment

1 SPIGELMAN CJ: On 5 December 2003 after a trial in the District Court, Gregory Joseph Fisher was found guilty of six breaches of the Corporations Law. These breaches concerned conduct relating to various payments made by the Satellite Group of Companies, sometimes referred to as TSG, of which Mr Fisher was a director. TSG was the first publicly listed gay and lesbian business enterprise and, as such, attracted public attention to a degree which its business activities may not otherwise have attracted.

2 The Crown proposed to present an indictment containing twelve charges alleging breaches of the Corporations Law and two charges under the Crimes Act 1900. The charges fell into three groups: payments to a company called Alex Perry Pty Ltd; conduct relating to an investment opportunity in a business called Skytours; and the purchase of units in a development at Ultimo. The District Court ordered the three groups of charges to be tried separately. The trial culminating in the verdicts of 5 December 2003 concerned the Alex Perry charges.

3 Mr Fisher suffered from a medical condition. On this basis he would eventually seek and be granted an adjournment of the hearing of the second group of charges.

4 During the course of the first trial, and upon its culmination, a number of orders were made by Norrish DCJ:

10 November 2003

(a) An order suppressing Mr Fisher’s medical condition.

(b) An order that the media not make any reference to Mr Fisher’s outstanding trials and/or proceedings.

3 December 2003

(c) An order that there be no publication by any source of any material relating to or disclosing that the accused is charged with or concerned with any criminal or illegal activity other than the subject matter of the current charges upon which the accused is being tried.

(d) An order that any publication of these proceedings only be a fair and accurate report of the proceedings, without any reference to any other matters concerning the accused or the Satellite Group other than those relating to the current charges and evidence and submissions given in the presence of the jury.

5 December 2003

(e) An order that there be no publication of any material revealing the verdict of the jury in this trial until further order.

5 On 12 December 2003, the Claimants in this Court applied to Norrish DCJ to revoke all non-publication orders which he had previously made. On 19 December 2003, by which time it was clear that the trials would not be back to back, Norrish DCJ delivered reasons for judgment on this application. His Honour ordered:

(a) that previous non-publication orders be revoked;

(b) that there be no publication by the electronic and/or print media of any evidence in the proceedings relating to the accused’s medical condition.

(c) that there be no publication by the electronic and/or print media of the fact that verdicts of guilty were returned in respect of the trial completed on 5 December 2003 except for the purposes of the parties to properly and lawfully pursue their respective legal interests and purposes.

(d) that there be no publication by the electronic and/or print media of the terms of this judgment and that an application to revoke non-publication orders in this matter had been made except for the purpose of the parties (including the applicants) to properly and lawfully pursue their respective legal interests and purposes.

6 By an Amended Summons in this Court the Claimants sought declarations and orders quashing the orders made by Norrish DCJ. Originally the Claimants sought to set aside order (b) suppressing evidence in the proceedings concerning Mr Fisher’s medical condition. That aspect of the relief was not pressed.

7 This application in this Court has two bases. First, that his Honour had no power to make the orders prohibiting the publication of the fact that guilty verdicts were returned. Secondly, insofar as a judge of the District Court had power to make such an order, the matters upon which his Honour relied in making the orders were insufficient in law to warrant the making of it.

8 I should note that it was not suggested in the present case that anything turned on whether or not an indictment had been formally presented with respect to the charges in the second and third trials. (cf Jago v District Court of New South Wales (1989) 168 CLR 23 at 36-37 per Brennan J.) The matters were before the District Court, as the determination of the separate trial application indicated.

9 The issue before the Court is whether the duty of a court to ensure that a person charged with a criminal offence receives a fair trial confers, by necessary implication, upon a court with jurisdiction to conduct such a trial, a power to order non-publication of the verdict in other criminal proceedings before the court and if so, whether such an order can be directed, in terms, to the media or others not present in the courtroom.

The Judgment of Norrish DCJ

10 In his judgment of 19 December 2003, Norrish DCJ referred to the orders made on 10 November 2003, the day that the trial on the Alex Perry charges commenced. He said:

“During the course of the trial there was reporting of matters unrelated to the trial but concerning Mr Fisher or reporting of the fact that Mr Fisher was on trial in misleading detail which eventually prompted this court to make orders …”

These are the orders of 3 December 2003 set out above.

11 His Honour said:

“Of the reports brought to the Courts attention prior to 30 November 2003, one newspaper report linked the accused, albeit obliquely and anonymously, with uncharged criminal conduct of a different character and criminal conduct of others. Another report incorrectly described the charges the accused was facing, including charges to be tried separately and not then the subject of the current trial. The matter that prompted the specific orders cited above was the publication in a website (over which the applicants obviously had no control) called “Crikey.com.au” under the heading:
‘7. Colourful characters – only in Sydney’.
The material published was quite salacious. The controller of that website agreed, at the request of the Public Information Officer of the Supreme Court of NSW, to remove the material published. Part of the background to this matter and these various articles is that the floating of TSG and the activities of the accused in the Sydney social scene had received a great deal of publicity in the past.”

12 His Honour referred to the order of 5 December 2003 made after the verdict of guilty on the first set of charges. His Honour said:

“Subsequent to the order made on 5 December 2003, in The Australian newspaper and the Saturday Sydney Morning Herald , reported in the New South Wales editions that the trial judge had ordered the suppression or non publication of the jury’s verdicts in this matter. Marked for identification on the Court file is ‘an interstate edition’ of The Australian newspaper reporting that the accused had been found guilty of the charges. The various print media stories about the accused brought to the Court’s attention and marked for identification during the proceedings are annexed to this judgment.”

13 It is unnecessary to set out the whole of this material. Annexed to his Honour’s judgment was an article in the Sun Herald of 30 November 2003 referring to the trial, under the heading “Satellite man’s tumble”, which outlined the charges brought against Mr Fisher. An article in the Sunday Telegraph of 9 November 2003 referred to the witness to be called under the heading “Satellite falls to earth with a bang”. Another publication referred to evidence actually given during the course of the trial by a witness. In the Weekend Australian on Saturday 6 December (an interstate edition), there was an article with a heading “Head of pink firm guilty of dishonesty”. The article reported the convictions of Mr Fisher on the Alex Perry charges.

14 A report in the Sydney Morning Herald of 6 December stated that the jury verdicts in the trial were “suppressed”.

15 His Honour set out the submissions made before him, which were to generally similar effect to those which were made to this Court. His Honour found that he did have the power to make relevant orders and concluded:

“… this Court does have power to order non publication of evidence or other matters arising from proceedings, if the non publication ensures that justice is administered in the particular case the subject of the order or so as to enable the Court to act effectively within its particular jurisdiction. As to jurisdiction there can be no doubt as to the jurisdiction of the District Court to ensure the circumstances necessary for a fair trial of criminal charges within its statutory jurisdiction ( Jago v District Court of New South Wales (1989) 168 CLR 23). A right to a fair trial according to law is a fundamental element of the criminal justice system ( Jago: Dietrich v The Queen (1992) 177 CLR 292).”

16 Under the heading “Necessity To Make The Relevant Non Publication Orders” his Honour said:

“It might be said in Mr Fisher’s case that on the evidence before me of reporting of the trial and of Mr Fisher’s private affairs to date, there have been a number of instances where publications under the control of the applicants have not in my view undertaken ‘fair and accurate reports’ of what has occurred in the courtroom. One such report in the Australian (annexed hereto) in my view reported matters that related to submissions made the conduct of a person in the body of the court which occurred in the absence of the jury. One report consciously, knowing the accused was on trial, linked him to other unrelated criminal conduct some of which was uncharged. Be that as it may, I cannot determine this application by having regard to the fact that in specific instances for reasons unknown, publications of both applicants have not fairly, or accurately, reported matters that they were not prohibited from publishing or reported matters that were not appropriate to publish.

In relation to the issue of necessity Justice McHugh said inter alia:
‘The making of the order must also be reasonably necessary and there must be some material before the Court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient.’ ( John Fairfax and Sons v Police Tribunal , at 477B).
It was submitted by the applicants that the Court needed ‘evidence’ to be ‘called’ in order to justify the orders that were made ie: to establish the relevant necessity. Ironically, the matters the applicants pointed to justifying revocation are not the subject of ‘evidence’ but ‘belief’. The applicants went so far as to say there was no, or insufficient, evidence to justify the course I took. Some of the orders made were based upon, in my view, ‘cogent evidence’ from the contents of newspaper reports concerning Mr Fisher’s private affairs or the trial itself. The orders made, now the subject of dispute, were made, in any event, upon evidence before the Court. In respect of Mr Fisher’s medical condition, upon medical evidence tendered at the adjournment proceedings earlier mentioned and in relation to the non publication order of the verdicts, based upon evidentiary material placed before the court in respect of the application for a separate trial in relation to each of the three allegations and the evidence at trial. This Court, from that evidence, can draw inferences as to likely events inimical to fair trials in the future if non publication orders were not made in this matter.
Clearly, in the context of what is known to the Court set out above, the decision to make the relevant non publication orders has not been based upon a ‘mere belief that the orders (were) necessary’ and that there was, at the very least ‘some material’ before the Court upon which it (could) reach the conclusion that it (was) necessary to make the order prohibiting publication’.
Justice McHugh further observed:
‘When the court is an inferior court, the order must do no more than is necessary to enable it to act effectively within its jurisdiction. Courts have no general authority to make orders binding people in their conduct outside the courtroom. Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the Courts’. (at 477B-C).
His Honour observed that whilst an order purporting to operate to bind people generally is an exercise of legislative not judicial power … ‘nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable the court to act effectively within is jurisdiction may constitute a contempt of court’.
I understand this observation to mean in relation to the world outside the courtroom that whilst an order for non publication may not bind parties such as the applicants in this matter they may publish in defiance of the orders at peril of a finding elsewhere of contempt of the Court order(s). The applicants submitted that they could not be potentially in contempt of a ’nullity’. In my view, that submission misunderstands his Honour’s reasoning in proper context.
The only matters specifically advanced by the applicants seeking to establish the absence of necessity (assuming power) were directed at the non publication order in respect of the verdicts.
…
As to the matter of the ‘non publication’ of the outcome of the trial, the necessity for that, despite the fact that it may be some months before the accused’s trial on the other charges, arises because this Court is of the view that the conditions of a fair trial in relation to each of the other separate sets of allegations cannot be secured if it be published in media outlets that the accused has been found guilty in respect of conduct relating to his position as a director of TSG.
As earlier indicated in the judgment given in relation to the application for separate trials, all of the outstanding allegations, as with the allegations relating to the ‘Alex Perry’ matters, are concerned with the accused’s conduct as a director or officer of the Satellite Group Limited. All of the charges have common themes of acting beyond his power and authority as General Manager or a director of the company and using corporation funds for what are alleged to be personal purposes of various types. It would seem, although not expressly admitted by the applicants, that if the trials had occurred ‘back to back’ the ‘necessity’ to make relevant non publication orders in relation to the verdicts (assuming power) would have been clearly established. It is this Court’s view that some delay of several months (if that is in fact what occurs and that is not certain at this point although all matters are for mention in late January 2004) is not to point when the publication of the verdicts in widely read media outlets, could and most probably would, effect [sic] the impartiality of potential jurors as yet unidentified. There is no guarantee against repeated publication of the same facts up until the next trial.
If publication of his guilt on the ‘Alex Perry’ charges is made now, it can be repeated seemingly without penalty right up until the time of the commencement of any further trials. The absurd situation would then arise whereby (assuming power as previously discussed) during the next trial, the trial judge may be permitted to make an order suppressing any publication of the fact that the accused had been previously convicted of his conduct in relation to his position of a director of TSG to ensure the circumstances of a fair trial. Then the trial judge would be further forced to warn the jury that it should ignore any publicity previously brought to its attention concerning the accused and his conduct as an officer of the company. This would highlight the issue creating potential prejudice. If there was power to make such an order during the next trial to prevent injustice, it would be power exercised in circumstances akin to shutting the stable door well and truly after the horse had left the property and found its way on to the main road nearby.
…
Although the outstanding matters are concerned with separate allegations, they are so intimately bound up with the character of the accused’s relationship with the company, his conduct as a director of the company and alleged use of company funds for private purposes, that the wider publication of his guilt in relation to very similar conduct could serve no end other than to prejudice the likelihood of a fair trial. Formulating an appropriate direction to thwart prejudice from publication would be not only an almost impossible task, but would draw attention to the very matter that the applicants say will have been well and truly forgotten by potential jurors by the time the trial commences. In passing I note that it is not to point that in the past the applicant has attracted media attention because he may have encouraged it or even craved it. That he has in fact had a high public profile is relevant to assessing the risk of prejudice. The terms of the articles annexed highlight that.
…
All the circumstances of this matter compel me to the conclusion that an order prohibiting publication in media outlets of the outcome of the completed trial is really necessary to secure the proper administration of justice in proceedings before this Court at the present time. This matter is an ‘exceptional case’ contemplated by Justice McHugh.”

The Principles of Open Justice and of a Fair Trial

17 As often happens in a context involving fundamental principle, two such principles are in conflict and a judgment must be made as to which principle is to prevail in the circumstances. The principle of open justice and the principle of a fair trial each inform and energise many areas of the law, as I have sought to show in extra-judicial addresses. (See, Spigelman, “Seen to be Done: The Principle of Open Justice” (2000) 74 ALJ 290, 378 and Spigelman, “The Truth Can Cost Too Much: The Principle of a Fair Trial” (2004) 78 ALJ 29.)

18 It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian court of justice. There is no inherent power of the Court to exclude the public. (See Scott v Scott [1913] AC 417 at 473; Dickason v Dickason (1913) 17 CLR 50 at 51; Daubney v Cooper (1829) 109 ER 438 at 440; Russell v Russell (1976) 134 CLR 495 esp at 507 and 520-521, 532.) The taking of a verdict is something which occurs in the ordinary course of criminal proceedings. (See, e.g. Coulter v The Queen (1988) 164 CLR 350 at 356, 357 and cf 359-360, 362.)

19 It is also well established that the exceptions to the principle of open justice are few and strictly defined. (See, e.g. McPherson v McPherson [1936] AC 177 at 200; R v Tate (1979) 46 FLR 386 at 402.) It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional constraints. (See, e.g. Dickason at 51; Russell at 520; John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 181 ALR 694 at [70]-[73].)

20 The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. (See, e.g. Attorney General v Leveller Magazine Limited [1979] AC 441 at 450.)

21 From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, e.g. Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D-E and 54G.)

22 The principle of a fair trial has been characterised in numerous High Court judgments in the most forceful of terms. It has been described as “the central thesis of the administration of criminal justice”: McKinney v The Queen (1991) 171 CLR 468 at 478; as “the central prescript of our criminal law”: Jago at 56; as a “fundamental element” or a “fundamental prescript”: Dietrich v The Queen (1992) 177 CLR 292 at 299, 326; and as an “overriding requirement”: Dietrich at 330. It is not a new principle. As Isaacs J put it in 1923 with reference to “the elementary right of every accused person to a fair and impartial trial”: “Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle”: R v MacFarlane; Ex parte O’Flanaghan & O’Kelly (1932) 32 CLR 518 at 541-542.

23 There is no aspect of preparation for trial or of criminal procedure which is not touched by, or indeed determined by, the principle of a fair trial. As Lord Devlin once put it:

“[N]early the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their power to see that what was fair and just was done between prosecutors and accuseds.” Connelly v Director of Public Prosecutions [1964] AC 1254 at 1347.

The Jurisdiction of the District Court

24 As a statutory court, the District Court of New South Wales has only such powers as are expressly conferred on it or as are necessarily implied from the express conferral of jurisdiction upon and grant of powers to the Court. A statutory court like the District Court does not have an inherent jurisdiction of the character traditionally exercised by the Royal Courts of Justice in England. Such an inherent jurisdiction is conferred on the Supreme Court of New South Wales.

25 This inherent jurisdiction of the Supreme Court is confirmed by the continuation of the Court by s22 of the Supreme Court Act 1970, and reaffirmed by s23 of that Act which provides:

“The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.”

26 In the exercise of that jurisdiction the Supreme Court has frequently been called upon to act to protect the jurisdiction of other courts involved in the administration of justice in New South Wales, including the District Court. Accordingly, the Supreme Court may punish contempts of a statutory court being a contempt not committed in the face of that other court. (See, e.g. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 esp at 360; Attorney General v Mirror Newspapers Limited (1961) 62 SR (NSW) 421; Ex parte Attorney General; Re Goodwin (1969) 70 SR (NSW) 413; Attorney General (NSW) v Mundey [1972] 2 NSWLR 887; Attorney General (NSW) v Mirror Newspapers Limited [1980] 1 NSWLR 374; X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575. The District Court has no such power R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208; United Telecasters Sydney Limited v Hardy (1991) 23 NSWLR 323 at 332.)

27 The jurisdiction of the Supreme Court extends to ordering the stay of proceedings which may constitute an abuse of process. (See, e.g. Herron v McGregor (1986) 6 NSWLR 246 esp at 250, 252; Walton v Gardiner (1993) 177 CLR 378 at 390; Cooke v Purcell (1988) 14 NSWLR 51; Barron v Attorney General (NSW) (1987) 10 NSWLR 215.) The District Court also has power to stay proceedings which are an abuse of its process. (See Jago v District Court of New South Wales (1989) 168 CLR 23 at 25-26, 33-34 per Mason CJ, 58 per Deane J, 71 per Toohey J and 75 per Gaudron J.) This Court has extended this principle to the Local Court. (See Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129, distinguishing Grassby v The Queen (1989) 168 CLR 1, which was concerned with committal proceedings. See also Wunsch v South Australian Police (1995) 64 SASR 203.)

28 In the case of a statutory court which is not a court of general jurisdiction and which does not have an inherent jurisdiction, it is useful to refer to an “implied” jurisdiction. (See Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 623-624.) An alternative formulation is “incidental statutory powers”. (Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at 515B.) The former is more commonly used.

29 I do not share the reservations with respect to the jurisdiction of this Court in its inherent jurisdiction, or under s23 of the Supreme Court Act, to make orders for non-publication of proceedings in a statutory court or tribunal, that are expressed by Grove J in SG v DPP (NSW) [2003] NSWSC 413 at [11]-[18], also doubted on appeal in that case. (See SG v DPP (NSW) [2003] NSWCA 128 at [3]. See also United Telecasters v Hardy at 333C-D.) However, this matter does not arise on this appeal.

30 The District Court has no express power to make an order of the character made by Norrish DCJ. The question is whether a power to make orders of this character is necessarily implied by the conferral of a criminal jurisdiction on the District Court.

31 Section 166 of the District Court Act 1973 states:

“166 (1) The Court has the criminal jurisdiction conferred or imposed on it by or under this Act, the Criminal Procedure Act 1986 and any other Act.
(2) The Court has generally the same criminal jurisdiction as each Court of Quarter Sessions had immediately before the commencement of this Act, except as regards any offences prescribed for the purposes of section 46 of the Criminal Procedure Act 1986.”

32 Section 46 of the Criminal Procedure Act 1986 provides:

“46 …
(2) The District Court has jurisdiction in respect of all indictable offences, other than such offences as may be prescribed by the regulations for the purposes of this section.”

33 The history is summarised by Brennan J in Jago at 35-36:

“The general criminal jurisdiction of the District Court is the jurisdiction which each Court of Quarter Sessions had before the District Court Act 1973 (N.S.W.) commenced: see s. 166, now s. 166(2). The jurisdiction of a Court of Quarter Sessions was established originally by commission to ‘hear and determine’ crimes and offences … That jurisdiction, affected as to subject matter by a series of statutes – some offences are statutorily removed from the cognisance of the District Court – was a jurisdiction vested in the Courts of Quarter Sessions in New South Wales created pursuant to The Australian Courts Act 1828 (Imp.) (9 Geo. IV C. 83), s. 17 and that jurisdiction was continued in the Courts of Quarter Sessions preserved by the Act for instituting and regulating Courts of General and Quarter Sessions in New South Wales 1829 (N.S.W.) (10 Geo. IV No. 7) and the Crimes Act 1900 (N.S.W.), s. 568 (to be read in conjunction with the Criminal Law Amendment Act 1883 (N.S.W.) (46 Vic. No. 17), s. 459) until repealed by the District Court Act. An indictment, being the foundation of the record of criminal proceedings … enlivens the jurisdiction of the District Court to hear and determine the offence therein charged.”

34 The issue turns on the jurisdiction of the District Court to try crimes on indictment. The basic principle is as formulated by Dawson J, with whom Mason CJ, Brennan and Toohey JJ agreed, in Grassby v The Queen supra at 16-17:

“… [N]otwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise … Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is … fundamental.”

(See also Re Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7-8.)

35 The test of implication, it must be emphasised, is a test of necessity. To the same effect is the test of necessity adumbrated by Lord Morris of Borth-y-gest in Connelly v Director of Public Prosecutions at 1301: “[t]here can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction”.

36 The test of necessity has been accepted in numerous subsequent authorities. (See, e.g. Jackson v Sterling Industries Limited at 623-624 per Deane J, with whom Mason CJ, Wilson and Dawson JJ agreed at 630-631, adopting the remarks of Bowen CJ in Jackson v Sterling Industries Limited (1986) 69 ALR 92 at 97; Harris v Calladine (1991) 172 CLR 84 at 136; Parsons v Martin (1985) 5 FCR 235 at 240-241. See specifically in relation to the District Court: Byrnes v The Queen (1999) 199 CLR 1 at [32]; Solomons v District Court of New South Wales (2002) 211 CLR 119 at [43]; TKWJ v The Queen (2002) 212 CLR 124 at [44], [101] and [114] relying on Grassby and Jago.)

37 Viscount Haldane LC confirmed the strictness of the test in a relevantly analogous context in Scott v Scott [1913] AC 417 at 438:

“But unless it be strictly necessary for the attainment of justice there can be no power in the court to hear in camera … He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure. But he must make out his case strictly and bring it up to the standard which the underlying principle requires. He may be able to shew that the evidence can be effectively brought before the Court in no other fashion. He may even be able to establish that subsequent publication must be prohibited for a time or altogether. … [H]e must satisfy the Court that by nothing short of the exclusion of the public can justice be done.”

Non-Publication Orders

38 Much of the relevant case law on non-publication orders is concerned with courts which have an inherent jurisdiction. In such a case a test of necessity is applied to the exercise of the power to make an order, as distinct from determining the existence of the power. In the context of an implied power, the two levels are analytically distinct but, as a practical matter, there will rarely be any need to differentiate between the two levels. Cases which apply a test of necessity to the exercise of an inherent jurisdiction or of an express statutory power will guide the determination of whether a power arises by way of implication for a statutory court.

39 Both the existence of, and the limitations upon, a power to make a non-publication order are set out in the principal authority on this subject in this State: John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, an authority which has frequently been referred to with approval and which this Court should follow.

40 In that case, McHugh JA said at 476-477:

“The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it . Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is ‘necessary to enable it to act effectively within’ its jurisdiction .” [Emphasis added]

41 The internal quote in the last sentence is a reference to the judgment of Lord Morris of Borth-y-Gest in Connelly v Director of Public Prosecutions at 1301, quoted earlier by McHugh JA, and which I have set out above, in which his Lordship identified the powers necessarily implied as an incident of the conferral of jurisdiction on a court.

42 To the same effect are the observations of McPherson J, quoted with approval by McHugh JA in John Fairfax v Police Tribunal, in Ex parte The Queensland Law Society [1984] 1 Qd R 166 at 170:

“… [T]he power of the court under general law to prohibit publication of proceedings conducted in open court has been recognized and does exist as an aspect of the inherent power. That does not mean that it is an unlimited power. The only inherent power that a court possesses is power to regulate its own proceedings for the purpose of administering justice; and, apart from securing that purpose in proceedings before it, there is no power to prohibit publication of an accurate report of those proceedings if they are conducted in open court, as in all but exceptional cases they must be.”

43 John Fairfax v Police Tribunal is authority for the existence of a narrow jurisdiction empowering a statutory court to make non-publication orders. In those proceedings, however, the Police Tribunal had acted beyond this narrow jurisdiction. As McHugh JA concluded at 481:

“The purpose of the order was not to enable the Tribunal to act effectively within its jurisdiction but to prevent people outside the Tribunal publishing evidence which had been given in public before the Tribunal. “

44 McHugh JA returned to the issue in Attorney General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342. Some aspects of that judgment may require further analysis (Note the explanation by Hope AJA of his concurrence in Mayas in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 169 and the observations in the joint judgment of Gleeson CJ, Clarke and Sheller JJA in R v Smith (1996) 86 A Crim R 308 at 312.) Nothing turns on this for present purposes.

45 There are a number of well established categories when a non-publication order will be made, whether in the exercise of an inherent jurisdiction or in the exercise of power which arises by way of necessary implication. One such category is an order preventing publication of the identity of an informer. The District Court has such a power.

46 In John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 Mahoney JA, with whom Hope AJA agreed, referred to the power to make orders for the concealment of the identity of persons (at 159-160), in that case victims of an extortion, and emphasised at 160 that a statutory court, such as the Local Court, does not have inherent powers, but it does have implied powers. His Honour then adopted the test formulated by McHugh JA in John Fairfax v Police Tribunal, quoted above, to the effect that an order can only be made “if it is really necessary”.

47 Mahoney JA went on to say (at 161):

“This leads to the consideration of what is meant by ‘necessary to secure the proper administration of justice’ in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceedings will go on: at least the instant proceeding will. … The basis of the implication is that if the kind of order proposed is not made, the result will be – or at least will be assumed to be – that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kind of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restricted powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based.”

48 The application of a test of necessity, as the foundation for an order relating to a police informer, was affirmed in R v Smith at 313.5 in the form “as being necessary for the administration of justice” (see also at 314.4 and 314.7). I have no doubt that the District Court has an implied power to make a non-publication order in such a case and in the case of other well established categories, e.g. to protect the identity of a victim of blackmail (R v Socialist Worker Printers and Publishers Limited; Ex parte Attorney General [1975] 1 QB 637) or to postpone publication of evidence in a voir dire. (See Attorney General v Leveller Magazine Limited [1979] AC 440 at 450; Independent Publishing Co Limited v Attorney General of Trinidad and Tobago [2004] UKPC 26 at [22]-[23], [25].)

49 The order under consideration in this case does not fall within any established category. The only matter now before this Court is the order preventing publication of “the fact that verdicts of guilty were returned” in “the electronic and/or print media”. Two issues arise. Does the District Court have an implied power to order non-publication of a verdict? If so, can that power be directed, in terms, to the media?

Is There an Implied Power?

50 The only legitimate purpose suggested to be served by a non-publication order of a verdict in a criminal trial is to ensure that the jury in a subsequent trial does not become aware of the conviction at least in a case, such as the present, where there is a substantial degree of similarity, indeed of overlap, between the offence found to have been committed and the offence the subject of an outstanding charge.

51 Where, as here, the implication is of a power which conflicts with the principle of open justice, the test of necessity must be applied with strictness. Accordingly, it is necessary to determine that the objective of ensuring the fairness of a subsequent trial cannot be achieved in any other way. That is not, in my opinion, the case.

52 Jago authoritatively establishes that the District Court has power to stay criminal proceedings. This is, of course, in addition to the power to adjourn proceedings.

53 In Jago Mason CJ said at 25:

“It is clear that Australian courts possess inherent jurisdiction to stay proceedings which are an abuse of process … Subject to statutory provision to the contrary, a court also possesses the power to control and supervise proceedings brought in its jurisdiction, and that power includes power to take appropriate action to prevent injustice. But it may be that ‘injustice’ in this context has a limited meaning.”

54 The jurisdiction affirmed in Jago to prevent abuse of process is derived in large measure from the principle of a fair trial. (See, e.g. at 30.4 and 31.1 per Mason CJ; at 56.4, 56.8 and 57.1 per Deane J; at 71.6, 72.3, 72.5 per Toohey J; at 75.4-75.6, 77.1 per Gaudron J.) The position is as summarised by Deane J at 57-58 where he posed the question in terms of whether:

“… the continuation of proceedings to the stage of trial will inevitably infringe the right not to be tried unfairly and a court which possesses jurisdiction to prevent abuse of its process, possesses jurisdiction, at the suit of the accused, to stay the proceedings pursuant to that power.”

55 The inherent or implied jurisdiction of a court extends to the prevention of the abuse of its processes, relevantly, by ensuring the capacity of the court to administer justice with fairness. (See Walton v Gardiner (1993) 177 CLR 378 at 392-395; Jago esp at 28-31 per Mason CJ.) Adjournments and stays are ordinarily sufficient to ensure a fair trial to the accused and the additional power to make a non-publication order is not necessary.

56 In a passage frequently cited with approval in the High Court, (see, e.g. Jago at 29-30 per Mason CJ; Williams v Spautz (1992) 174 CLR 509 at 520 per Mason CJ, Dawson, Toohey and McHugh JJ; Walton v Gardiner at 394 per Mason CJ, Deane and Dawson JJ; Ridgeway v The Queen (1995) 184 CLR 19 at 62 per Toohey J and 74 per Gaudron J; Nicholas v The Queen (1998) 193 CLR 173 at 265 per Kirby J), Richardson J said in the New Zealand Court of Appeal, with respect to the two aspects of the public interest which bear on the issue of a stay of proceedings:

“The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court’s processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court’s processes may lend themselves to oppression and injustice.” Moevao v Department of Labour [1980] 1 NZLR 464 at 481.

57 Richardson J, speaking of an inherent jurisdiction, said that in the exercise of that jurisdiction the administration of criminal justice must be seen as a “continuous process, not confined to the determination of the particular case”. This reasoning would support this Court exercising its protective jurisdiction in aid of the District Court, pursuant to its inherent jurisdiction and the jurisdiction specifically conferred by s23 of the Supreme Court Act, as discussed above. That reasoning would not, however, apply to the District Court where the existence of an implied power arises as an incident of the jurisdiction that has been invoked. The existence of this reserve ‘power’ in the Supreme Court is pertinent to determining whether the District Court has an implied power.

58 Jago at 34, 57-58, 71-72 affirms that there may be a case in which an order for a permanent stay is appropriate. (See also Williams v Spautz at 519.) This was found to be the case where the illegal conduct of police warranted the exclusion of all evidence of the commission of the offence (Ridgeway v The Queen (1995) 184 CLR 19).

59 It is conceivable that media publicity may create a situation in which an accused will not be able to have a fair trial within a reasonable period or at all. In that circumstance an anticipatory non-publication order may be needed to ensure fairness to the prosecution. However, that exceptional case is so unlikely that it cannot form the basis for an implication of a power on a test of necessity. Applications for a permanent stay have failed in the most sensational of cases: Anita Cobby, Ivan Milat, Phillip Bell, the Childers Backpacker Hostel fire, Lucy Dudko, William D’Arcy, Bruce Burrell. (Murphy v The Queen (1989) 167 CLR 94; R v Milat (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Meagher JA and Newman J, 26 February 1998); R v Bell (unreported, New South Wales Court of Criminal Appeal, Spigelman CJ, Abadee and Ireland JJ, 8 October 1999); R v Long (2002) 128 A Crim R 11; R v Dudko (2002) 132 A Crim R 371; R v D’Arcy (2003) 140 A Crim R 303; R v Burrell [2004] NSWCCA 185.)

60 If the truly exceptional case ever arises it can be handled by the exercise of the protective inherent jurisdiction of the Supreme Court. In any event, I find it quite inconceivable that such a case could emerge from the publication of a verdict after anything like normal publicity of the course of a trial.

61 In civil proceedings, which were conducted in camera as they concerned a threat of disclosure of confidential information, a restriction on the publication of the order was found to have gone too far. Street CJ said:

“I find it almost inconceivable to contemplate a case in which there should be a total black-out upon the terms of the order. Important as it is that proceedings and reasons should be heard and stated in public, it is even more important that the solemn formality of a curial order should be capable of publication. To admit to exceptions to this requirement is a far reaching step. It affects not merely the individual against whom the order may be made. The public itself has a right to know what orders are being made by courts and it is incumbent on judges so to formulate their orders as to give effect to this right.” ( David Syme & Co Limited v General Motors-Holden’s Limited [1984] 2 NSWLR 294 at 301D-F)

62 I agree with Street CJ. The qualification in the word “almost” appearing before “inconceivable” cannot satisfy a test of necessity.

63 There are situations in which back to back trials are desirable. The issue would arise most acutely in such a case. However, those situations encompass considerations such as the convenience of witnesses, the efficient deployment of prosecutorial resources, the effective management of a court’s caseload. Considerations of convenience and efficiency are a wholly inadequate basis to justify the implication of a power to prohibit publication of a verdict. If such considerations are to operate as a qualification of the principle of open justice, express statutory authority is required.

64 I have not overlooked the fact that the ability of a stay or adjournment to ensure a fair trial has been substantially attenuated by the immediate accessibility of information on the internet with an efficiency that overrides the practical obscurity of the past. This accessibility poses significant challenges for the administration of criminal justice. (See HM Advocate v Beggs (No 2) [2002] SLT 39; DPP v Weiss [2002] VSC 153; R v McLachlan [2000] VSC 215; R v Long (2002) 128 A Crim R 11 at [38]-[39]; R v Cogley [2000] VSCA 231 at [10]-[18]; R v K [2003] NSWCCA 406; R v Crowther-Wilkinson [2004] NSWCCA 249.)

65 Legislative intervention is advisable. (Section 69A of the Jury Act 1995 (Qld) prohibits inquiries by jurors, including by searching electronic databases.) In Burrell at [39] I indicated that it may be desirable for the Crown to conduct searches in advance of a trial and, where necessary, request Australian-based websites to remove references to an accused for the period of a trial. In New South Wales the standard directions to a jury warn the jury not to access internet databases. In some cases it may be necessary to return to the past practice of sequestering the jury. In some cases a judge-alone trial may be appropriate.

66 The Courts are still adapting to this new technology. However, nothing suggests that a power to order non-publication of a verdict is necessary to meet this challenge.

The Scope of the Power

67 The second basis for challenging the power asserted in this case turns on the scope of the order which extends beyond persons who are participants in the court room. It is expressed to apply, and apply only, to publication by the media. This aspect of the order is designed to serve the purpose of a fair trial as it is only by publication in the media that potential jurors or future witnesses are likely to discover the matter sought to be suppressed.

68 The case which most closely resembles the present case is R v Clement (1821) 4 B & Ald 219; 106 ER 918, where an order preventing publication of proceedings was made at the commencement of a series of trials for high treason of a number of accused, involved in what became known as the Cato Street Conspiracy. The accused were arraigned on a single indictment but separate trials were requested. They proceeded back to back. In the present case the proposal to proceed on a single indictment was rejected and the trials were not to be conducted back to back. Nevertheless, considered from the perspective of the principle of a fair trial, there was sufficient overlap to treat the trials as, in substance, a single proceeding.

69 In Scott v Scott Lord Atkinson said of R v Clement:

“ … [T]o use the language of Bayley J., these several trials constituted one entire proceeding. Abbott C.J., as he then was, knowing that the evidence in each trial would be very much the same, and fearing that if a report of each trial were published in the Press as it took place an opportunity would be given to the witnesses to trim their evidence, to the sacrifice, perhaps, of truth and the possible defeat of justice, made an order that no report of the proceedings should be published till all the trials had concluded.” (at 453-454)

70 McPherson J explained R v Clement in the following terms in Ex parte The Queensland Law Society at 170:

“[T]he order was within jurisdiction because it regulated the proceeding then pending before the court and was made for the furtherance of justice in that proceeding; and that the order was to remain in force only during the pendancy of those proceedings.”

71 As a result of the explanation of Clement given in Scott v Scott, McHugh JA said in John Fairfax v Police Tribunal at 477:

“… [T]he order in that case was to be understood as directed to preventing any person from publishing the evidence to any potential witnesses or jurors. The persons who publish the evidence in that case were adjudged guilty of contempt. But I do not think that such a finding would have been open in respect of a publication in a part of England remote from the place of trial and unlikely to come to the attention of the jurors or the participants in a trial.”

72 His Honour also said at 480E:

“… R v Clement where the purpose of the order was to protect the integrity of a number of trials on the one indictment …”

73 The authority of R v Clement has recently been considered by the Privy Council in Independent Publishing Co Limited v Attorney General of Trinidad and Tobago [2004] UKPC 26. In that case one of a number of co-accused, in a trial which had received considerable publicity, had agreed to plead guilty and to testify against his co-accused. The trial judge was asked to make an order that these facts not be published because, if the person did not give evidence in accordance with his announced intention, the jury would be prejudiced.

74 The order made in Independent Publishing was:

“It is ordered that the media, both printed and electronic for the time being and until further order, refrain from publishing, referring to or commenting upon in any way the matters in this court which relate to the accused Levy Morris or Modeste, and in particular, to his plea or to the sentence imposed by this Court.” (at [7])

75 Despite this order, there was publication of such matters. Contempt proceedings were instituted and the editor and author concerned were convicted.

76 The Privy Council formulated one of the issues in the appeal in the following terms:

“Is there power at common law to order the publication of a report of open court proceedings to be postponed?”

77 It is important to bear in mind that the Privy Council was considering an order directed explicitly to the media and the media alone.

78 After a survey of the authorities, including reference to Raybos, Police Tribunal and Mayas, their Lordships concluded:

“[59] The first point to make is that the power in question – the power to postpone the reporting of open court proceedings – would be worthless unless it carried with it the power to punish any breach of the order as a contempt. …
[60] Do the authorities support the existence of such a power at common law? The only case directly appearing to do so is Clement itself. Even there, however, there had been no real need for the court to decide the point: each of the many judges involved in the case clearly regarded the publication as a gross contempt in any event – irrespective, that is, of whether any binding non-publication order had been made. …
[61] Clement gains little if any support from the later cases. Scott v Scott was concerned with a very different question and neither Viscount Haldane nor Lord Atkinson, the only two members of the House to refer to Clement , appears to have regarded it as authority for the proposition that a breach of the court’s order would of itself constitute a contempt – without which the power would, as stated, be worthless anyway.
…
[65] Their Lordships concluded that Clement provides too insecure a foundation on which to rest the existence of such an inherent power in the court today.
…
[67] Their Lordships likewise conclude that if the court is to have the power to make orders against the public at large it must be conferred by legislation; it cannot be found in the common law.”

79 It is by no means clear to me that R v Clement is authority supporting a power to make orders directly binding upon the public at large, relevantly the media. The actual order made in R v Clement is reported in two different ways:

“to prohibit the publishing of any proceedings … until the whole trial should be brought to a conclusion; and that it was expected that all persons would attend to that admonition.” (106 ER 918 at 918.5)

and

“strictly to prohibit the publication of the proceedings … until all the trials shall be gone through … we hope all persons will observe this injunction.” (Gurney, Vol 1, p56 quoted in Independent Publishing at [30].)

80 The words employed – of what was “expected” and of “hope” – do not suggest that persons outside the courtroom were intended to be bound by the order made.

81 The judgment in Independent Publishing is consistent with what McHugh JA said in John Fairfax v Police Tribunal (at 477):

“Courts have no general authority, however, to make orders binding people in their conduct outside the courtroom. Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the courts. An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative – not judicial power. Nevertheless, 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. But the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice and not because he was bound by the order itself.”

82 As McHugh JA states, subsequent contempt proceedings need not turn on whether orders made are directly binding on the alleged contemnor. This is a well established proposition. (See, e.g. Attorney General v Leveller Magazine at 451, 463-465, 467-468, 473-474; Attorney General v Times Newspapers Limited [1992] 1 AC 191 esp at 217-225.)

83 In New South Wales a non-publication order made in the Supreme Court or the District 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.

84 The reasoning of McHugh JA in John Fairfax v Police Tribunal does not support a non-publication order directed to, and effective as such against, the media. As His Honour put it in Mayas at 355D, anticipating the Privy Council in Independent Publishing at [67]:

“For a court order to operate as a common rule and to bind people generally, it needs the express or implicit sanction of the legislature.”

85 In Mayas Mahoney JA said at 348C:

“Whether and to what extent a non-publication order may bind or otherwise affect non-parties is not a matter which has yet been finally determined in this State.”

86 Perhaps his Honour had in mind the fact that McHugh JA’s reasoning on this matter was not essential to the decision in John Fairfax v Police Tribunal. A number of cases have rejected Mahoney JA’s qualification and accepted that John Fairfax v Police Tribunal does prevent non-publication orders directed to non-participants. (See R v Savvas (unreported, Supreme Court of New South Wales, Hunt J, 30 August 1989) at p4; R v Noud; Ex parte MacNamara [1991] 2 Qd R 86 at 98; Rockett v Smith; Ex parte Smith [1992] 1 Qd R 660 at 665-666.)

87 Indeed there is authority in the Court of Criminal Appeal directly in point on the present issue. In R v CAL (unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, Smart and James JJ, 18 February 1993), Hunt CJ at CL, with whom Smart and James JJ agreed, rejected an application that the applicant for leave to appeal against sentences for robbery and assault, should have his name and application suppressed, because he was to stand trial on a charge of murder. Hunt CJ at CL said:

“This Court, in common with all of the courts administering the criminal law in this State, has power to order the non-publication of any report in the media of evidence given in certain specified prosecutions of sexual offences. That power is given in s578 of the Crimes Act 1900. Not even that power permits a court to prohibit the report of the name of the accused unless such a report would reveal the identity of the complainant. Such a power to prohibit the report of the name of the accused is given in relation to the names or identity of children, by s11 of the Children (Criminal Proceedings) Act 1987. Neither statutory provision is applicable in this present case. Courts do not have any general power to make such non-publication orders in other cases, not even the Supreme Court: John Fairfax & Sons Ltd v Police Tribunal (1986) 5 NSWLR 465 at 477-479; AG v Mayas Pty Ltd (1988) 14 NSWLR 342 at 358-359; John Fairfax Group Pty Ltd v Local Court (1991) 26 NSWLR 131 at 148, 169. It was submitted that views expressed by Mahoney JA in the last of those cases (at 164) would support the existence of such a power, but his Honour’s statement that non-publication orders may be made was obiter, and both Hope AJA (at 169) and Kirby P (at 148) excluded that statement from their agreement with his judgment. The view expressed by Mahoney JA remains the dissenting view that it was in AG v Mayas Pty Ltd (at 345).
The application for a ‘suppression’ order must accordingly be refused.”

(The Court did, however, make a pseudonym order.)

88 Furthermore, the absence of any power to suppress publication of a verdict was asserted in R v Sheikh [2004] NSWCCA 38 at [102] per Sully J, with whom Mason P and Wood CJ at CL agreed at [2].

89 I find the reasoning of McHugh JA in John Fairfax v Police Tribunal, as reinforced by Independent Publishing, compelling. An order directed and directed only, to persons unrelated to the proceedings is beyond power. The orders in the present case were of that character. On this alternative ground, the application should also be upheld.

Challenge to the Orders

90 The Claimants submitted that even if Norrish DCJ had power to make the orders, the matters upon which his Honour relied were insufficient in law to warrant the making of them. On the basis that a power existed, His Honour’s decision was made in the exercise of a judicial discretion. Review of a decision of that character is subject to well-known limitations. In the present case I have come to the conclusion that his Honour did commit legal errors of a character which would justify this Court interfering with his Honour’s exercise of the discretion, if any.

91 The first legal error appears in the following passage from his Honour’s reasons, which I repeat:

“There is no guarantee against repeated publication of the same facts up until the next trial.
If publication of his guilt on the ‘Alex Perry’ charges is made now, it can be repeated seemingly without penalty right up until the time of the commencement of any further trials.”

92 In this passage his Honour overlooks the law of contempt. Publication of the character with which his Honour was concerned may be the subject of “penalty” by means of the law of contempt even without a non-publication order. His Honour’s statement - “seemingly without penalty” - was wrong in law.

93 The second legal error committed by his Honour was the application of an inappropriate test in what is, on any view, an exceptional jurisdiction. At one point of his Honour’s reasons he identified the test in the following terms:

“ … a fair trial in relation to each of the other separate sets of allegations cannot be secured if it be published in media outlets that the accused has been found guilty in respect of conduct relating to his position as a director of TSG.”

94 This test required a high level of certainty.

95 However, subsequently, his Honour went on to apply a much weaker test when he said:

“It is this Court’s view that some delay of several months … is not to point when the publication of a verdicts in widely read media outlets, could and most probably would , effect [sic] the impartiality of potential jurors as yet unidentified.”

96 A test of what “could and most probably would” occur does not have the high degree of certainty required to exercise an extraordinary jurisdiction based on a test of necessity.

97 The third legal error that his Honour committed is found in the passage where he said:

“The wider publication of his guilt in relation to very similar conduct would serve no end other than to prejudice the likelihood of a fair trial.”

98 This comment discounts the principle of open justice which is a fundamental value of our legal system. It suggests a pre-occupation with the incidents of a “fair trial” to the exclusion of other values served by the justice system and of the mechanisms for ensuring the efficacy of that system.

99 The principle of open justice is not simply a means of attaining a fair trial. In a free society public access to the conduct of the courts and the results of deliberations in the courts is a human right, as well as a mechanism for ensuring the integrity and efficacy of the institutions of the administration of justice. The publication of findings of guilt are of value in and of themselves. It cannot be said that such publication “could serve no end other than to prejudice the likelihood of a fair trial”.

100 Finally, nothing appeared on the facts of this case which could satisfy a test of necessity. As his Honour acknowledged the next trial was many months away. The suggestion that jurors in such future trials were likely to be prejudiced by the possibility of remembering the fact of a prior conviction at such a distance is most unlikely to be true. None of the publications before the Court were of any prominence, except when extracted from their context and tendered in court. The possibility that a juror in a future trial could learn of the prior conviction, perhaps by inappropriately accessing the internet or by publication closer to the subsequent trial, is at least more probable. However, it is not determinative.

101 The extraordinary course of making an order of the character which his Honour made can only be justified if the Court came to a conclusion at a high level of certainty that prejudice of the trial will ensue. There was no basis on which a test of necessity could be satisfied in this case.

102 As set out above, his Honour expressed his concern that a future trial judge could not effectively ensure a fair trial by giving the jury directions, particularly as this may highlight the issues which establish the possibility of prejudice. In this regard, in my opinion, his Honour was proceeding on a basis which has, in recent years, come to be rejected by the courts in relevantly analogous case law.

103 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, indeed publicity much more sensational and sustained than anything that occurred here. 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.

104 As Mason CJ and Toohey J said in The Queen v Glennon (1992) 173 CLR 592 at 603:

“[T]he suggestion that there was a substantial risk that at least one juror would have acquired knowledge, before the verdict was given, of the respondent’s prior conviction was again a matter of mere conjecture or speculation. The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence.”

105 As Toohey J observed in Hinch v Attorney General (Vic) (No 2) (1988) 164 CLR 15 at 74:

“It may be also that earlier decisions have given too little weight to the capacity of jurors to assess critically what they see and hear and their ability to reach decisions by reference to the evidence before them.”

106 The proposition was well stated by the Ontario Court of Appeal in R v Hubert (1975) 29 CCC (2d) 279 at 291, in a passage subsequently cited with approval in Australia (Murphy v The Queen (1989) 167 CLR 94 at 99):

“In this era of rapid dissemination of news by the various media, it would be naïve to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence.”

107 Furthermore, as Kirby ACJ said in R v Yuill (1993) 69 A Crim R 450 at 453-454:

“Courts will assume that jurors, properly instructed, will accept and conform to the direction of the trial judge to decide the case solely on the evidence placed before them in court: see Demirok (1977) 137 CLR 20 at 22. 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 for which they are empanelled.”

108 As Gleeson CJ said in R v VPH (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Newman and Sully JJ, 4 March 1994):

“The jury will be given appropriate directions to confine their attention to the evidence that is put before them. Our entire system of the administration of criminal justice depends upon the assumption that jurors understand and comply with directions of that character.”

109 Finally, as McHugh JA said in Gilbert v The Queen (2000) 201 CLR 414 at [31]:

“Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.”

110 The perspective that jurors properly perform their task, are true to their oath and comply with a trial judge’s directions has repeatedly been applied in appellate courts over recent years. (See R v Milat; R v Bell; R v Long; R v Bijkerk [1999] NSWCCA 114; R v Dudko; R v D’Arcy; R v Burrell.)

111 His Honour’s order preventing publication of a verdict many months before the trial in which the possibility of prejudice could arise was, in the circumstances of the case, so inappropriate as to constitute a legal error in the exercise of a discretion.

Orders

112 I propose the following orders:

1 A declaration that orders (c) and (d) made by Norrish DCJ on 19 December 2003 prohibiting the publication of the matters referred to in those orders were beyond power.

2 A declaration that Norrish DCJ erred in making orders (c) and (d) on 19 December 2003, in that the matters relied upon by his Honour were insufficient in law to warrant the making of those orders.

3 An order quashing orders (c) and (d) made by Norrish DCJ on 19 December 2003.

113 HANDLEY JA: I agree with Spigelman CJ.

114 CAMPBELL AJA: I agree with Spigelman CJ.

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Last Modified: 09/20/2004