Madafferi v The Age Company Pty Ltd (No. 2)
[2016] VSC 103
•17 MARCH 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2014 05269
| ANTONIO MADAFFERI | Plaintiff |
| v | |
| THE AGE COMPANY PTY LTD (ACN 004 262 702) & ORS | Defendants |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 15, 16 MARCH 2016 |
DATE OF RULING: | 17 MARCH 2016 |
CASE MAY BE CITED AS: | MADAFFERI v THE AGE COMPANY PTY LTD & ORS (No. 2) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 103 |
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PRACTICE AND PROCEDURE – Non-publication order – Order intended to protect safety of person now deceased – Plaintiff’s application for further non-publication order – Whether necessary to prevent real and substantial risk of prejudice to the proper administration of justice in defamation proceeding – Whether non-publication order should be continued with extended content or be revoked – Whether general broad suppression order should be made - Discretionary considerations – Plaintiff’s application refused – Open Courts Act 2013 ss 13, 14, 15 and 18.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms G Schoff QC with Ms M Marcus | WMB Lawyers |
| For the Defendants and the Australian Broadcasting Corporation | Dr M Collins QC with Mr H Hassan | Minter Ellison |
HIS HONOUR:
There are two applications before the court, each of which arises from the death of Mr Joseph Acquaro in the early hours of Tuesday, 15 March 2016. The first application is made by the defendants, joined by the Australian Broadcasting Corporation, to lift a non-publication order. The second application is made by the plaintiff and is for a non-publication order in respect of the same and some other related material.
On 9 December 2015, I refused the plaintiff's application that the defendants discover the sources of information on which they relied in preparing articles that they published. The plaintiff has sued the defendants for damages for defamation by the imputations conveyed in 12 articles. The nature of the plaintiff's proceeding, and the defences that have been raised, are set out in my reasons for refusing that application.[1] For present purposes it should be noted that the plaintiff alleges that the publications convey imputations of violent criminal conduct by the plaintiff including murder, extortion and drug trafficking. The defendants identify the plaintiff as the head of the Calabrian mafia in Melbourne.
[1]Madafferi v The Age [2015] VSC 687 (‘ the privilege ruling’).
The non-publication order made was in the following terms:
(a) Until judgment in this proceeding I prohibit the disclosure of the name of Mr Joseph Acquaro and the matters set out in paragraphs 7-11 of the affidavit of Paolo Mauro Tatti sworn 16 September 2015.
(b) Liberty to apply is reserved.
In other matters, I noted that I was satisfied that the ground for making the order was that set out in s 18(1)(c) of the Open Courts Act 2013 (Vic), which is that the order was necessary to protect the safety of Mr Acquaro.
The defendants' application was that because the grounds upon which the non-publication order was made no longer seemed to exist, the order should be revoked. Although there is no evidence before the court that the victim of the apparent murder in Brunswick East that is the subject of widespread media coverage was Mr Acquaro, it seems clear from that media coverage that the police have identified the victim as indeed being Mr Acquaro. Affidavit evidence of the extensive media coverage of the incident was before the court. Neither party suggested that it was inappropriate for the court to proceed on the basis that Mr Acquaro is now deceased.
The plaintiff accepted that the basis upon which the non-publication order was previously made no longer exists and that, in ordinary circumstances, the order should be discharged. However, the plaintiff submitted that a non-publication order should remain in force on the ground that it was necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.
The order sought by the plaintiff was in the following terms:
(a) Until judgment in the proceeding, that I prohibit the disclosure and/or publication of any of the matters contained in:
(i) paragraphs 5-11 of the affidavit of Paolo Mauro Tatti sworn 16 September 2015 and;
(ii) paragraphs 20-22 of the affidavit affirmed by Nicholas David McKenzie on 11 September 2015.
(b) Until judgment in this proceeding, or further order of the court, pursuant to the inherent jurisdiction of the court, the court prohibits any publication of information that suggests that the plaintiff is or may be responsible for the murder of Mr Joseph Acquaro.
(c) Liberty to apply is reserved.
For the reasons set out below, I will allow the application by the defendants and the ABC and revoke the non-publication order that I made on 9 December 2015. In doing so, I am exercising the court's power to review an order on the application of a party to the proceeding in connection with which the order was made.[2] By reason of Mr Acquaro's untimely demise, the order can no longer serve its intended purpose. Unless I am satisfied by the plaintiff on his application that the same, or a varied, non-publication order should replace that order, the restriction on disclosure and/or publication of the evidence on the privilege application will be fully lifted.
[2]Section 15, Open Courts Act 2013 (Vic).
Turning then to the plaintiff's application, for the reasons that follow this application will be dismissed.
It is pertinent to bear in mind at the outset the precise terms of the statutory power. Section 18(1)(a) of the Open Courts Act states:
(1) A court or tribunal other than the Coroners Court may make a proceeding suppression order if satisfied as to one or more of the following grounds:
(a) the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
…
I make two observations. First, the statutory power is discretionary. Second, the discretion to exercise the statutory power is enlivened when the court is satisfied about two matters. An order is necessary, because:
(a) there is a real and substantial risk of prejudice to the proper administration of justice; and
(b) it is not possible to prevent that prejudice by other reasonably available means.
The plaintiff identifies the risk of prejudice to the proper administration of justice to be that the kind of publicity that is likely to follow lifting of the non-publication order will prejudice the plaintiff's prospects of a fair trial before a jury in his defamation proceedings, scheduled to commence on 1 August 2016. The plaintiff contended that the probable effect of publication of the material currently suppressed is that members of the community who read the articles will no doubt conclude that the plaintiff must be responsible for the murder of Mr Acquaro. Further, the plaintiff submitted that such an impression could not reasonably be corrected by direction to the jury. Accordingly, an order is necessary to prevent unfairly prejudicial reports of the plaintiff being responsible for the murder from coming to the attention of members of a jury when his defamation proceeding comes on for trial.
If a real and substantial risk of prejudice to the proper administration of justice is a likely consequence in the absence of a proceeding suppression order, the order will be necessary in the sense required by the statute.[3] The applicant must satisfy the court of the necessity of the order by evidence or by sufficient credible information that is satisfactory to the court.[4] In DPP (Commonwealth) v Brady & Ors,[5] Hollingworth J suggested that ‘”sufficient credible information” can include inferences which may be drawn from available evidence and from judicial knowledge and experience’.
[3]Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, 56-57 [8].
[4]Section 14(1), Open Courts Act 2013 (Vic).
[5][2015] VSC 246, [60].
The plaintiff submitted that there has been widespread and sensational reporting of the link between Mr Acquaro's death and the material of which suppression is sought. These reports are calculated to prejudice a fair trial of the proceeding, as suggesting that the plaintiff is responsible for this murder is obviously seriously damaging to his prospects of obtaining a fair trial. To evaluate the identified risk of prejudice, it is necessary to look at the scope of the publications and the likely context in which that risk of prejudice may operate.
A significant sample, if not a complete record, of the response of the media to Mr Acquaro's death on both 15 March and on the morning of 16 March 2016 was put before the court on affidavit. In addition, there was evidence of the reports in the media following the hearing of the privilege application, that were fair reports of that hearing, and following the delivery of the privilege ruling, that were fair reports of that ruling. It was not suggested that any of these earlier reports traversed the non-publication order. However, it is clear that it has been a matter of public record since September 2015 that Mr McKenzie claims a detective had warned him about a contract on a source and that he may be under surveillance.
Further, the plaintiff's lawyer, Mr Tatti, had revealed that the plaintiff had been approached by two detectives in June 2015, who told the plaintiff they had information that there was a contract on the life of (the suspected source) for $20,000, and that if something happened to (the suspected source) they would know where to start looking. The plaintiff replied that he knew nothing about the matter and Mr Tatti stated that the plaintiff had not been contacted again.[6]
[6]This information was reported by The Age, the ABC, The Australian and on line sources such as The Guardian.
I will refer below to the disclosure made in my privilege ruling. The ruling was also widely reported, with references to the $200,000 ‘contract’ and to the plaintiff's denial of the police allegation. None of these articles disclosed the identity of the source or the basis for the suspicion that the suspected source had been in contact with Mr McKenzie.
The media reporting on the day of the killing identified Mr Acquaro as the victim of an execution style killing, stating that he was aware that a $200,000 murder contract had been taken out on his life. It was suggested that the police had spoken directly to Mr Acquaro about their suspicions.
The following day, unsurprisingly, the information base appeared to have grown. The Herald Sun revealed that Mr Acquaro had learned that a foreign hit man had entered Australia, that he was the target, and that the bounty had increased to $500,000. One journalist suggested that the Herald Sun had recently discussed this suggested ‘contract’ with Mr Acquaro before his demise. A cryptic reference was made to the plaintiff having launched a failed legal bid involving Mr Acquaro.
The Age suggested that police are expected to focus on a feud with an alleged Calabrian crime boss, who could not be named for legal reasons, but who had been spoken to by police in June last year about a $200,000 contract on Mr Acquaro's life. This statement, when read with earlier articles published in September and December 2015, identifies the plaintiff as the alleged Calabrian crime boss and Mr Acquaro as the suspected source. Another article published at the same time reminds readers of the police warning to Mr McKenzie about his personal security and states that mafia figures blamed Mr Acquaro for being the source of his stories. That matter was said to be amongst a number of things the police are now investigating as a possible motive for the murder.
The Australian reported a police focus in the early stages of the investigation on the plaintiff, whom it described as ‘a Calabrian born businessman long suspected by law enforcement agencies of being a senior figure within the L'Onorata Societa’, and that the plaintiff had had a falling out with Mr Acquaro. It also referred to the ‘contract’.
The media reports variously comment on the relationships between the Acquaro family and the Madafferi family, which had deteriorated into a ‘rift between the clans’, and on Mr Acquaro's interest in the affairs of the Calabrian community, including its notorious members, and his longstanding involvement as a lawyer for members of the Calabrian community.
On a fair reading of these articles it would seem that journalists had multiple sources of information, some of whom may have been informed about the ‘contract’ by Mr Acquaro. In the media reporting prior to his death, there is no identification of Mr Acquaro as to the suspected source although that link has now been made. There is no reference to the matters deposed to by the plaintiff's solicitor that explained the source of the plaintiff's belief that Mr Acquaro was a source.
It is necessary to first identify what occurred on the hearing of the privilege application when the non‑publication order was first made. On that occasion, the evidence which the plaintiff now seeks to suppress, was led by him for a forensic purpose that is evident from my earlier ruling.[7] In doing so, the plaintiff was not concerned for Mr Acquaro's safety or that his prospects of a fair trial might be impinged. The plaintiff did not apply to suppress any part of Mr Tatti's affidavit before relying on it.
[7][2015] VSC 687, [98].
An issue that arose, and was the subject of evidence, in that application was whether there was any likely adverse effect of disclosure of such sources on the informant or any other person. Nicholas McKenzie, the second defendant, affirmed an affidavit expressing his fear that if the identity of his sources were to be revealed, many of them and their family members might be subjected to grave repercussions, including serious personal injury or death. That evidence was found in paragraphs 20-22 of Mr McKenzie's affidavit, the passage which the plaintiff now seeks to suppress. In the privilege ruling, I set out the substance of Mr McKenzie's evidence about his alleged fears.[8]
[8]Ibid, [105]-[110].
Although objection was taken by the plaintiff to these paragraphs, that objection was that the evidence was hearsay without adequate identification of the source of the information on which the department's belief was based. The objection was overruled, although the relevance of the contentions in support of the objection was noted on the question of the weight to be attributed to such evidence.[9]
[9]Ibid, [93]–[100].
Once served, Mr McKenzie's affidavit drew a response from the plaintiff in the form of an affidavit sworn on the basis of information and belief, by the plaintiff's solicitor. The affidavit of Mr Tatti, sworn 16 September 2016, to which I have already referred, then became, in part, the subject of the non-publication order. As the privilege ruling makes clear, it is not possible to identify Mr Acquaro as a possible source for the defendant from Mr McKenzie's affidavit. Throughout the hearing, the defendants did not confirm the plaintiff's speculation that Mr Acquaro was a source.
The connection between Mr Acquaro as a possible source and the information coming from Victoria Police, that the plaintiff was suspected to have arranged a ‘contract’ for his murder, was made by the plaintiff, by Mr Tatti's affidavit. The plaintiff now seeks a non‑publication order in respect of material that it read in open court at the privilege hearing in order to rely on it for a forensic purpose. The content of that material was widely reported in September and again in December 2015. It is only since, and by reason of Mr Acquaro's death, that the plaintiff seeks to suppress this material. It has been in the public domain for approximately six months. The plaintiff contended that the circumstances were dramatically changed by the fact of Mr Acquaro's death.
As I have noted, the passages from Mr McKenzie's affidavit that the plaintiff seeks to add to the material to be suppressed until trial, are reproduced in the privilege ruling. That information has been publicly available on the internet since 9 December 2015. The plaintiff also seeks to add paragraphs 5 and 6 of that affidavit to the suppressed material. The substance of those paragraphs was also set out in the privilege ruling, where I said, at paragraph 111:
The plaintiff's solicitor asserted that police visited the plaintiff and he identified one of the officers. The police stated to the plaintiff that they had information that there was a contract on the life of a named person for $200,000 and that if something happened to that named person they would know where to start looking. The plaintiff told the police that he knew nothing about the matter. The plaintiff's solicitor deposes that there was a prior history of contact between the named person and the plaintiff and others close to the plaintiff. The plaintiff's solicitor also stated that another solicitor, whom he named, informed him of certain matters including that there had been contact between the named person and Mr McKenzie.
The named person referred to in this passage was Mr Acquaro.
During the course of argument as to the admissibility of part of the affidavit material, the defendants were critical of the risk created by the material in Mr Tatti's affidavit. Whether the plaintiff was, ‘the leader of a well-established Calabrian mafia cell in Melbourne,’ was not to the point. Risk was otherwise created by the assertion that Mr Acquaro had informed on the activities of the Calabrian Mafia.[10] The defendant suggested that a non-publication order was appropriate, and I agreed. Although the plaintiff did not object to an interim order being made he submitted that ultimately it could not be justified for the same reason that the claim of s 126K privilege could not be justified.
[10][2015] VSC 687, [108].
Thus, the connection made by the plaintiff between the alleged ‘contract’ being investigated by the police and the target as a possible informant was substantially revealed by the plaintiff in open court and is readily identifiable from the privilege ruling. All that was protected from disclosure was the identity of Mr Acquaro and the source of the belief that he was that possible informant. All of the unprotected information entered the public domain where it can readily be gathered by an internet search.
But for the interim non-publication order, it is highly likely that the suppressed matters deposed to by Mr Tatti would have received prominent media attention in 2015 without objection from the plaintiff. Having adopted a forensic position about disclosure of this material, the question arises as to the plaintiff's proper motives in now seeking its suppression. Legitimate inferences that are open about the plaintiff's motives are relevant when balancing the discretionary considerations.
For these reasons, the non-publication order sought by the plaintiff is futile. Assuming that there is a real and substantial risk of prejudice to the proper administration of justice, an issue which I will shortly address, the non-publication order sought by the plaintiff will not ameliorate or prevent that risk. I am not persuaded that the non-publication order is necessary.
Unsurprisingly, given what is already in the public domain, other media apart from the Age and the ABC were able to report the substance of the matters set out in the affidavits that the plaintiff wishes to suppress. On the material before me, I cannot assume that the matters now in the public domain about Mr Acquaro and the circumstances of his demise have been sourced from the suppressed material. I cannot identify any utility in continuing to suppress this material.
The plaintiff clearly entertains concerns that open access to this material will result in publications that will further damage his reputation. Such publications, while they may add to the defamatory imputations that the plaintiff alleges,[11] may convey imputations of a like kind to those already pleaded in the proceeding. This consideration warrants careful analysis about the evidence likely to be led at trial relevant to these issues, the directions likely to be given a jury about the use of the evidence at trial (as opposed to directions not to use information that is not evidence), and the nature of the prejudice to the proper administration of justice that may arise.
[11][2015] VSC 687, [130].
But first two observations can be made about the plaintiff's concerns. First, the prospect of damage to reputation is not a ground on which a suppression order can be made under s 18 of the Open Courts Act. Secondly, on analysis, this submission closely resembles an argument that the court ought by a non-publication order that is effectively injunctive in its effect prevent, in advance of any publication, the dissemination of material that might be adverse to the plaintiff's reputation. Given that on well-established principles, great caution is exercised to ensure that such injunctions are only granted in very clear cases, it is unsurprising that the plaintiff has not applied for a pre-publication injunction. It will be evident, from the privilege ruling, that I am satisfied, for present purposes, that there is real ground to suppose that the defendants may succeed on their defence of qualified privilege.[12]
[12] See, generally, Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, 66-69 [16]-[19].
The plaintiff eschews this purpose. While I have no doubt that the plaintiff's principal concern is that the prospect of a fair trial may be compromised by adverse publicity, that the alternative motivation cannot be discounted is a relevant discretionary consideration. However, it is not a consideration that weighs heavily in the balance.
The prejudice to the proper administration of justice identified by the plaintiff is the prospect that a jury will not properly reason its conclusion solely on the evidence presented to it in court. Unable to dismiss from their minds, the widespread and sensational reporting of the link between the death of Mr Acquaro and the existence of police suspicions that the plaintiff is involved, the jury will reason impermissibly to a conclusion based upon the matters that they will read in the next few days, some four months prior to being empanelled.
A further step in this reasoning appears to involve a slide, which may occur, from a link between police suspicions and the death, to a link between the plaintiff's involvement and the death. Thus the relevant imputation that the plaintiff fears from future publications is the suggestion, which cannot be based on any matter revealed to this court, that the plaintiff is or may be responsible for the death of Mr Acquaro.
However, if the media are free to report on the contents of the relevant paragraphs of the affidavits of Mr McKenzie and Mr Tatti, I must assume that the media will fairly and accurately publish the contents of that material. Further, if the media makes unjustifiable imputations against the plaintiff, acting unreasonably, it is likely that the plaintiff will add, as he has done on several past occasions, allegations of further defamatory publications by the defendants, or others, and contend that it is just and convenient for all like allegations to be determined in the one trial.
Recognition of this difficulty, that is, a prejudicial effect on the future trial may be caused by the conduct of publishers other than the defendants, has led to the application for a broader general suppression order in the form of paragraph two to the proposed relief that I have set out above. Again, the plaintiff eschewed the proposition that he is arguing for a pre-publication injunction, submitting that he is inviting the court to exercise its inherent jurisdiction to generally suppress publication of information that suggests that the plaintiff is or may be responsible for the murder of Mr Joseph Acquaro to protect the integrity of the trial process. That suggestion does not fairly arise from the material that has been suppressed or the material the plaintiff now seeks to suppress. That material can only support a much more limited proposition, namely, that the police suspect the plaintiff's potential involvement in a contract for the murder.
As I have noted, there appears to be multiple sources available to the media for the information that is now appearing. It may be that, as the defendants submitted, lifting the non-publication order improves the prospect of fair and accurate reporting. The countervailing consideration in respect of general suppression orders is not the preservation of open justice but that of a free communication of information.[13]
[13]News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 259 [36].
The recent history of gangland wars and execution style killings in Victoria has created a significant, and legitimate, public interest in execution style killings, as the death of Mr Acquaro is reported to be. The media are entitled, if acting reasonably in all of the circumstances to publish information about this killing. In exercising the inherent jurisdiction, the court is confined to doing that which is demonstrably necessary to secure the due administration of justice in the proceeding. Although the court's power to suppress publication generally is not narrowly circumscribed, the question is what is warranted in the circumstances.
These principles were affirmed by the Court of Appeal in The Herald and Weekly Times Pty Ltd and the Age Company Pty Ltd v A and Ors.[14] The Court of Appeal continued:[15]
A suppression order directed at preventing prejudicial media comment is akin to an anticipatory exercise of the court's power to deal with contempt of court. The same objective informs the court's power to grant a quia timet injunction to restrain a threatened contempt. That power is, however, to be exercised sparingly….
Moreover, any exercise of the power to suppress publication must, as Her Honour recognised, involve an exercise in balancing the interests of society in ensuring that the accused receives a fair trial against the competing interests of society in the freedom of expression.
[14][2005] VSCA 189, [30]-[32] (Maxwell P and Nettle JA).
[15]Ibid [33]-[34].
In Dupas v Channel Seven Melbourne Pty Ltd,[16] Kyrou J, as he then was, considered an application to restrain the defendant from broadcasting on a free to air television channel those parts of the mini-series, “Killing Time”, that portrayed the plaintiff's character purporting to confess to the Andrew Fraser character that he murdered Mersina Halvagis on 1 November 1997. Justice Kyrou distilled a number of propositions from his analysis of appellate authority[17] concerning the exercise of the court's discretion to make an order restraining the publication of material that would deprive an accused of a fair trial.
[16][2012] VSC 486.
[17]General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68; Dupas v The Queen (2010) 241 CLR 237; Nationwide News Pty Ltd v Farquharson (2010) 28 VR 473; and News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248.
Subject to the observation that ss 18 and 19 of the Supreme Court Act 1986 have been repealed by the enactment of the Open Courts Act and appropriate allowance being made for that change in the statutory framework, Kyrou J's analysis is, with respect, apposite when the question is whether a plaintiff would be deprived of a fair trial before a jury in a defamation proceeding.
Transposed into the context of a civil defamation trial and the Open Courts Act and using the propositions that Justice Kyrou stated as a template,[18] omitting citations, the principles that are relevant to the exercise of the court's jurisdiction in the present circumstances are as follows.
[18][2012] VSC 486, [7].
(a) There is nothing remarkable or singular about extensive pre-trial publicity, especially in notorious cases. That a trial is conducted against such a background does not mean that the unfair consequences of any prejudice thereby created can never be relieved against by the judge during the course of the trial.
(b) Prior to the empanelment of the jury at the outset of the trial and in the charge to the jury the trial judge can direct jurors about the need to act solely on the evidence led in court and to exclude from their considerations anything that they may have read, heard or seen outside the court. Such directions are designed to ensure that jurors will not be affected by pre-trial publicity in returning their verdict.
(c) The experience and wisdom of the law is that almost universally jurors approach their task conscientiously. It is assumed that when they are properly directed by trial judges to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions uninfluenced by extraneous considerations, juries comply. The capacity of juries to do so is critical to ensuring that civil proceedings are fair to the parties and thus vital to the integrity of the civil justice system. It follows that with proper directions to the jury the trial judge is able to relieve against the unfair consequences of pre-trial publicity.
(d) The confidence in the integrity of juries however does not mean that the law should abandon its traditional role of protecting them from events which put this integrity to the test. This role has relied upon the familiarity of the media with the restraints of the law of contempt and the media's respect for these constraints. It has also relied upon the court's powers to make orders restraining publications which might breach these restraints found in its inherent jurisdiction and in the Open Courts Act.
(e) Such an order should not be made unless it is necessary and if made it must be no wider in its terms and its duration than is necessary to ensure that as far as possible the apprehended risk to the pending proceeding is removed and that the order does no more than that. Further, it must be readily apparent from the terms of the order what information is subject to it.
(f) The courts have always recognised that the ability to control pre-trial publicity prejudicial to an accused (or plaintiff) is limited, nevertheless the trial judge should do what he can in order to protect the rights of the accused (or plaintiff) to a fair trial and thereby to protect the integrity of its process.
(g) The test applicable to the determination of an accused's application for a non-publication order is now to be found in s 18(1) of the Open Courts Act, although the court's inherent jurisdiction which Justice Kyrou was explaining is unaffected by the Act.[19] That test involves a fact/value assessment. The order must be necessary because:
[19]Section 5(1), Open Courts Act 2013 (Vic).
(iii) there is a real and substantial risk of prejudice to the proper administration of justice; and
(iv)it is not possible to prevent that prejudice by other reasonably available means.
A superior court has both the power and the duty to ensure that justice is done according to law and may make orders for the protection of those involved in proceedings before it. In the present case the plaintiff does not submit that the court's inherent jurisdiction is enlivened on any other or different basis to that found in s 18(1) of the Act.
(h) A decision as to whether a risk is sufficiently real and substantial as to warrant the exercise of a court's inherent power must have regard to the assumption that jurors will comply with their legal obligations under the Juries Act 2000 and judicial directions given during the course of the trial. The Act now requires that the court consider whether the risk of prejudice can be prevented by any available means when determining whether an order is necessary.
(i) On occasions the exercise of that power and that duty will be by way of an injunction to restrain an apprehended contempt of court. Courts have power to restrain publication of extrinsic material so as to avoid such an apprehended contempt. In defamation proceedings, as I have already noted, there are particular considerations applicable to pre-publication injunctions.
(j) Any exercise of the power to suppress publication involves balancing the interests of society in the proper administration of justice by ensuring that a fair trial takes place against the competing interests of open justice and freedom of expression recognised by s 4 of the Act.
(k) Commercial considerations may be relevant to the court's discretion, however, as a matter of principle such considerations must take second place to the public interest that no conduct should be permitted which is likely to prevent a litigant in a court of justice from having his or her case tried free from all matters of prejudice.
(l) The purpose and effect of a non-publication order is not to suppress the publication of information in which the public may be interested. It is rather to postpone its publication until the moment has passed when the publication would pose a serious risk or impediment to the proper administration of justice.
Bearing these considerations in mind, I add the following considerations specific to this application. The date when a jury is likely to be empanelled for the plaintiff's trial is a little over four months away, which is quite a long time in the contemporary media cycle. It cannot readily be assumed that the prejudicial impact of any publicity in March cannot be alleviated by appropriate directions to a jury in August. Whether there is a real and substantial risk of prejudice need not be evaluated at this stage when it is likely that the conditions that might demonstrate such a prejudice will be different in August. In this respect, I reject the plaintiff's submission that the publications likely in common days to fairly follow on the lifting of the order will be of such a widespread and sensational nature as to have an overwhelming and enduring impact on the minds of those Victorians who may be empanelled on a jury in August 2016.
In any event, I do not accept that any possible prejudice to the due administration of justice cannot be avoided in the conduct of the trial. At trial, the plaintiff will be entitled to the benefit of the presumption of falsity in respect of the imputations that are established, as the defendants have not pleaded a defence of truth in respect of any imputation. Rather, the defendants rely on the defence of qualified privilege under s 30 of the Defamation Act 2005. The key issue, examined in a preliminary sense in some detail in the privilege ruling, is whether the defendants acted reasonably in publishing the impugned articles in the manner that they did. That, ultimately, is a question of law for the trial judge, although the jury will be asked to determine any questions of fact relevant to the enquiry.
The plaintiff submitted that Mr Acquaro's death and speculation as to who was responsible for it will not be relevant to any jury question. The considerations that inform the court's discretion to permit a claim of journalist's privilege under s 126K of the Evidence Act 2008 will not be a factual question for the jury at trial. Moreover, the inquiry as to whether the defendants acted reasonably in publishing is directed to the time of publication, not subsequent events. In the context of this submission, it is difficult to follow the plaintiff's reasoning that there is a risk of prejudice to the administration of justice.
The defendants submitted that, relevantly, in advancing their defence it is likely that the defendants will seek to lead evidence to the effect set out in paragraphs 20-22 of Mr McKenzie's affidavit. If the plaintiff gives evidence it is likely that he will give evidence of, or be cross-examined about, the matters set out in paragraphs 5-11 of Mr Tatti's affidavit. There is some force in the defendants’ submission that the inquiry into whether the defendant acted reasonably in publishing will traverse the issue of why Mr McKenzie formed the view that he could not name his sources and why it was reasonable for the jury to assess his conduct in publishing the articles on that basis. It is the extent and nature of the defendants’ investigations that are relevant in the context of the inquiry into the reasonableness of the defendants’ behaviour.
It is premature to resolve this issue. I am inclined, for present purposes, to accept the defendants’ submission that it is likely that the material that the plaintiff seeks to suppress will inevitably end up before the jury and be the subject of directions about its use. Those directions would reinforce the jury's task of having regard to the evidence they have heard and disregarding what they may have seen, heard or read in the media four months earlier. The plaintiff has necessarily joined issue with very serious imputations about his conduct that are highly prejudicial in the same sense as is identified by the plaintiff in submissions.
The plaintiff drew an analogy with the prejudicial effect of evidence of prior criminal convictions or evidence of bad character. The prospect of significant use of prejudicial reasoning by the jury, about the circumstances surrounding the plaintiff's possible involvement in the death of Mr Acquaro, should those matters go before the jury, is lessened by the general context of serious criminal behaviour on the part of the plaintiff that lies at the heart of all of the imputations. That context will aid a proper understanding by a jury of a trial judge's directions about the use of evidence.
However, a better answer to the question of whether the plaintiff has demonstrated a real and substantial risk of prejudice in this way may be that the issues before the jury will not directly concern the plaintiff's conduct. Although that conduct is highlighted by the nature of the imputations arising from the articles those imputations are presumed false and the jury will be so instructed. The inquiry is about the conduct of the defendant and whether that conduct was reasonable. I am not persuaded that in that context the publicity that the plaintiff fears will now follow the revocation of the non-publication order will result in impermissible reasoning that cannot be prevented by proper jury directions.
As authority for the proposition that no instruction to the jury could overcome an adverse impression formed on the basis of the anticipated media reporting about the connection between the plaintiff and Mr Acquaro's death, the plaintiff referred me to Svajcer v Woolworths Limited.[20] I am not assisted by this decision, in which Rush J concluded that a special risk arose that the plaintiff would not be afforded a proper and fair trial before a jury because there was a high risk that the jury would be distracted by the fact that the plaintiff had been convicted after pleading not guilty of child sex abuse charges, when such matters might come into focus through expert medical evidence about the plaintiff's adjustment problems. The risk of prejudicial reasoning arose from the prospect that ‘an instinct to punish or other mainstreams of human action may cause the fact finder to base his decision on something other than the established propositions in the case’.[21]
[20][2015] VSC 543, [25]-[28].
[21]Ibid, [28]; citing Papakosmas v R (1999) 196 CLR 297, 325 [91] (McHugh J).
As I have noted, the jury will not be assessing the plaintiff's conduct. The factual questions for the jury will concern whether the defendants’ conduct was reasonable. A further point of distinction is that unlike evidence of a prior conviction for child sex abuse, in the context of a civil action for damages for personal injury, evidence about the connection between the plaintiff and police suspicions of his possible involvement in the murder contract will sit with evidence of imputations of violent criminal conduct by the plaintiff including murder, extortion and drug trafficking. A reaction akin to desensitisation to the context of the evidence before the jury will tend to mitigate against the prospect of impermissible reasoning being unavoidable.
In any event, if I am wrong about such matters, because I am concerned with a civil proceeding, there are two further means available to prevent such prejudice. An assessment of the realistic prospects of such prejudice can be made as the trial is about to commence, a retrospective assessment informed by fact rather than speculation that would not interfere with free communication of information at this point, and if it be the trial judge's assessment that the prospect of such prejudice is real, it may be appropriate to adjourn the trial. In addition, the option is open for the proceeding to be tried without a jury. It cannot be suggested that a trial before a judge, as opposed to a jury presents any risk of prejudice to the proper administration of justice.
Returning to the general suppression order sought by the plaintiff, s 13 of the Open Courts Act regulates the scope and purpose of suppression orders, whether made under the Act, or by the exercise by this court of its inherent jurisdiction. The section states:
Scope of information covered by order and purpose of suppression order
(1)A suppression order must specify the information to which the order applies with sufficient particularity to ensure that –
(a) the order is limited to achieving the purpose for which the order is made; and
(b)the order does not apply to any more information than is necessary to achieve the purpose for which the order is made; and
(c) it is readily apparent from the terms of the order what information is subject to the order.
The form of orders submitted by the plaintiff cannot comply with the requirements of this section. The precise content of what is to be prohibited by a general suppression order is unclear because the formulation of the restraint is vague and insufficiently targeted. The plaintiff seeks to prohibit any publication of information that suggests that the plaintiff is or may be responsible for the murder of Mr Joseph Acquaro. I agree with the defendants' submission that the media would be left in a difficult position in attempting to identify whether a proposed publication complied with the order.
The terms of engagement between the courts and the media about reporting of police suspicions prior to a person being charged or prior to a trial are well settled, if not well understood by elements of the media. The relationship between this general prohibition and the plaintiff's legitimate interests in the due administration of justice is difficult to define in the context of future publications of uncertain content. Commonly, the form of a future publication has been identified and although counsel for the plaintiff suggested how the defendants might lay out tomorrow's front page, that is properly a decision for the defendants acting responsibly. The plaintiff also suggested that any problem of drafting the form of the order could be solved, but I do not agree.
Ultimately, a balance must be struck between competing considerations. The balance was identified back in 1937 by Chief Justice Jordan in an oft quoted passage in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd as follows:[22]
It is of extreme public interest that no conduct should be committed which is likely to prevent a litigant, in a court of justice, from having this case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested. If in the course of the ventilation of a question of public concern, matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest, the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses actual or supposed cannot be required to be suspended merely because the discussion or the denunciation may, as an incident but not intended by‑product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.
[22](1937) 37 SR (NSW) 242, 249-50.
In conclusion, and returning to the question posed by the statute, for the reasons that I have given I am not persuaded that a non-publication order or a general suppression order, in the terms identified by the plaintiff, is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice because I am not persuaded that such a risk would be operative at the time of trial, or that such a risk would displace the presumption in favour of disclosure that s 4 of the Open Courts Act states I must respect. In addition, I am satisfied that any risk of prejudice to the proper administration of justice that remains operative at the time of trial can be prevented by other means, as I have suggested.
Finally, I note that I ruled that paragraph 7 of Mr Tatti's affidavit sworn 16 September 2016 was inadmissible, as nothing more than speculation. In the circumstances, and in light of the order I am about to make, that paragraph will be redacted from the affidavit on the court file. Subject to that redaction, I will order that the non-publication order that I made on 9 December 2015 is revoked and that the plaintiff's application for a further non-publication order and/or a general suppression order is refused.
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