Nationwide News Pty Ltd v Farquharson

[2010] VSCA 131

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0068

NATIONWIDE NEWS PTY LTD
	Applicant
v
ROBERT DONALD WILLIAM FARQUHARSON	First Respondent
	and
THE DIRECTOR OF PUBLIC PROSECUTIONS	Second Respondent

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JUDGES:	MAXWELL P, NETTLE JA and EMERTON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 May 2010
DATE OF JUDGMENT:	21 May 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 131

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CRIMINAL LAW – Trial – Right to fair trial – Threatened publication of article – Whether real and substantial risk of prejudice – Suppression order made – No error – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J W K  Burnside AO QC with Ms G L Schoff	Kelly Hazel Quill
For the First Respondent	Mr C Mylonas	Victoria Legal Aid
For the Crown	Ms A L Forrester	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P: 

1. This is an application for leave to appeal from an order made today by his Honour Justice Lasry, suppressing the publication of an article proposed for publication on Saturday 22 May 2010 in The Australian newspaper.  The article is concerned with the murder of a three year old child, Imran Zilic, by his father Aliya Zilic in 2008, and Mr Zilic’s resultant trial for murder in South Australia.

1. The application for leave to appeal has come on urgently because of the proposed publication and because, as senior counsel for the applicant publisher informed the Court, if the order stands there will be very considerable practical implications for the publisher.  Understandably, the applicant considered it essential that appeal processes be invoked immediately.

1. We have had helpful submissions from counsel for the applicant, from junior counsel for the Crown, who appears at the trial, and junior counsel for the defendant in the trial.  In the argument on this application, counsel for the Crown supported the application for leave to appeal, making essentially the same submission as that advanced by the prosecutor to the trial judge.  It was submitted that it was very unlikely that a juror in this case would, upon reading the article, draw a comparison of the nature outlined in his Honour’s reasons;  and that there was no relevant risk of prejudice such as could have warranted the making of the suppression order.

1. In the course of submissions we were taken to the article itself, and to passages relied on both by the applicant and by the defence in support of their respective submissions.  Having adjourned to consider the matter, we have read the article and re-read his Honour’s ruling and had an opportunity to consider the submissions which have been advanced.

1. With the benefit of that consideration I have come to the clear view that the application for leave to appeal should be refused.  My reasons are as follows.

1. The applicant accepts that his Honour directed himself correctly as to the test applicable to the determination of the defence application for a suppression order.  His Honour said:

The test is… whether or not there is a real and substantial risk of prejudice to the fair trial of the accused and an interference in the course of justice in this case.

He concluded that there was such a risk.

1. His Honour set out in his ruling nine matters which he said raised ‘significant concerns’ due to similarities between the Zilic case and the case at hand.  His Honour’s description and analysis of those matters of similarity was in these terms:

Firstly, the article is about a parent, indeed a father murdering a young child as in this case.

Secondly, in that case there had been a separation between the child’s parents at the instigation of the child’s mother as in this case.

Thirdly, the killing apparently occurred in the Zilic case during what might be described as an access visit by the father as in this case.

Fourth, the wife, mother of the child, in the Zilic case, was persuaded that her husband, the accused, loved his child and would never do the child harm.  That has a striking similarity to the circumstances in this case.

Fifth, the child in that case may have died a horrible lonely death in a mine shaft.  In this case there is inevitably some focus on the last moments of the three children who were in the car of the accused in the moments before they drowned in the dam on 4 September 2005.

Sixth, when seen by a witness, according to the article, prior to the murder, the accused man Zilic apparently looked calm and was like any other father with their son.  In this case the jury have heard a great deal of evidence aimed at establishing a similar normal relationship between the accused man and his children.

Seventh, it is asserted in the article that the defence of insanity is misused by people who kill their children and that they could be clever enough to know that only an insane person would do such a thing.  That is, I agree, a different message from the issues which arise in this case.  But the message contained in the article at least implies, if not more than implies, that such defences are likely to be without substance.  In this case, as Mr Mylonas has just pointed out, there will be a body of medical evidence aimed at demonstrating the implausibility of the defence on behalf of the accused, here being a coughing induced blackout.

Eight, the article specifically refers to the impending trial of Arthur Freeman, a man charged with the murder of his daughter by throwing her from the Westgate Bridge in the early part of this year.  As a judge of this court arguably I am entitled to protect the process of the court, although Ms Schoff makes the point which I think is valid that it is really a matter for the judge who will be dealing with that trial to consider and counsel briefed in the matter.

Nine, the manner in which the prosecutor in the Zilic case put the case and put the arguments before the trial judge is given in some detail in the article.  The defence raised is categorised during the course of those proceedings as being a situation where the accused had maintained a lie.  Again, the issue in this case, as Mr Mylonas put to me, is in part at least, the credibility of the medical condition which the accused here seeks to rely upon.

Finally, the acquittal of Zilic by the trial judge is described in the article as being ‘truly benevolent’.

1. The question which would arise on the appeal, if leave were granted, is whether it was reasonably open to the trial judge to reach the conclusion which he did.  That that is the correct approach on an appeal of this kind is clear from the decision of this Court in General Television Corporation Pty Ltd v Director of Public Prosecutions.[1]

   [1][2008] VSCA 49, [35], [56] (‘Underbelly Case’).

1. Senior counsel for the applicant contended that this Court should not approach the notional appeal as being an appeal from an exercise of discretion.  Instead, he argued, we should treat the threshold question – the risk of prejudice ‑ as a jurisdictional fact, the existence of which it was for this Court to decide for itself.  In the course of argument, however, Mr Burnside responded to Nettle JA’s question by conceding – properly, in my view – that reasonable minds might differ about the degree and nature of such risk in circumstances such as these.  Ultimately, senior counsel accepted that the question which this Court would have to decide on the appeal was whether it was reasonably open to the judge to reach the conclusion which he did.

1. I am quite satisfied that it was reasonably open to Lasry J to reach the conclusion which he did.  If it were for me to decide, I would have come to the same conclusion, based on the connections which his Honour identified between the subject matter of the trial he is presiding over and the matters discussed in the article. 

1. Senior counsel for the applicant  conceded – again, properly, in my view ‑ that the nine points of similarity identified by the judge were available on a fair reading of the article.  He submitted forcefully, however, that those points could only be discerned on a close reading of the article;  and that it was improbable ‑ to the point of being unrealistic ‑ that any juror might read the article so closely.  Instead, so it was submitted, it was much more likely that any juror who happened to read this article would be struck by the differences between the Zilic case and this.  A similar submission was made by counsel for the Crown.

1. On an application such as this, the view of the trial judge must be accorded considerable weight.  That was the view of a unanimous court in the Underbelly Case.[2]  The trial judge in that case was said to have ‘a high degree of familiarity with and knowledge of both the background to and the particular circumstances of the trial’, over which she was soon to preside.

   [2] [2008] VSCA 49, [56].

1. The position is, in my opinion, all the stronger when – as here – the judge is called on to decide the suppression issue during the running of the trial.  Unlike this Court, the trial judge is fully attuned to the tenor of the evidence which the jury have heard, and to the issues raised in the conduct of the trial.  His Honour is in the best position to assess the likelihood of information of a particular kind attracting the interest, or affecting the judgment (or having the risk of affecting the judgment), of a juror in this trial who has heard the evidence as his Honour has.

1. The following statement by the judge is of particular importance, in my view:

The trial of Robert Farquharson is highly emotional.  This is, in my opinion, a case that strains the limits of judicial direction on sympathy and prejudice.  The emotional content of this trial has been continuous and with respect I agree with [defence counsel’s] submission that the jury are under as much pressure as any jury in any criminal trial could possibly be.  In my view, that pressure will increase.  This article which is the subject of this application seems to me to carry with it a requirement for people in the position of the accused and in the position of Mr Zilic to be convicted.

In the atmosphere of this trial I have a very strong apprehension that if this article were to be published, there would be a real and substantial risk of prejudice to the accused and an interference with the course of justice.  An article such as this will be a matter of considerable interest.  Apart from its contents it may well provoke comments from people who are people around members of the jury, family and friends, people in that category.  Those comments themselves if made to members of the jury may well have an effect.

1. The risk of prejudice is most acute, as senior counsel for the applicant properly conceded, if publication is to occur while the trial is under way.  When his Honour said that the case ‘strains the limits of judicial direction’, I do not take him to have been doubting the assumption on which both trials and appeals are conducted – namely, that jurors are conscientious and attentive and comply (and can be expected to comply) with judicial directions.  Rather, his Honour was simply acknowledging that jurors are human.  A trial judge must necessarily make his or her own assessment, in the course of a highly charged trial, as to whether the directions he or she will give to the jury can be relied on to achieve their object.  His Honour clearly felt some uncertainty about that question, in the highly-charged atmosphere of this trial.

1. It was not suggested by the applicant that the content of this article will be any the less topical if its publication is delayed until the conclusion of this trial.  It was, however, said that as a matter of practical commercial reality the effect of the suppression order will be that the article will be published in other States but not at all in Victoria.  It is recognised, of course, that commercial considerations are relevant on an application such as this.  But it is equally plain, as a matter of principle, that such considerations must take second place to what Jordan CJ described in Bread Manufacturers Ltd;  ex parte Truth and Sportsman Ltd[3] as:

… the extreme 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 matter of prejudice.

[3](1937) 37 SR (NSW) 242, 249.

1. One final matter which seems relevant is that this is the re-trial of Mr Farquharson.  That justifies the judge taking particular care to minimise the risk of anything occurring which might derail the trial.  As this Court has had occasion to

consider in the matter of R v Dupas (No 3),[4] the effect of successive trials or re-trials (or both) is each time to add to the accumulated prejudice which a defendant might face.  It is surely in the interests of justice in this State that there should not be another re-trial in the present case.

[4][2009] VSCA 202. The judgments of the Court in that matter are not publicly available at the time of writing, due to the pending re-trial. The judgment will again become available following completion of that re-trial.

1. I would accordingly refuse the application.

NETTLE JA:

1. I agree and add that a decision of the kind which the judge was required to make in this case, although one of fact, was essentially discretionary.  It involved a fact/value assessment of whether, in the particular circumstances of the case, publication of the article would create a real and substantial risk of prejudice to a fair trial of the accused. 

1. It needs also to be understood that, in many cases, of which I think this to be one, such an assessment is informed to a considerable extent by the judge's perception of the particular jury with which he is concerned and an understanding of the way that they have reacted to evidence already adduced, and thus might be likely to be affected by other material.  Consequently, it can hardly be doubted that a trial judge is ordinarily in a far better position than this Court to assess the effects on the jury of a proposed publication and thus the chance that it may prejudice the fairness of the trial.

1. Counsel for the applicant drew our attention to significant differences between the facts of this case and those the subject of the article.  Rightly, he submitted that there is a large difference between a contrived defence of insanity and a defence, contrived or otherwise, based on physiological ailments.  Significantly, he was supported in those submissions by counsel for the Crown, who argued that the features to which the judge referred as being likely to influence the jury are

commonplace in cases involving parental killings of children and would be well known to any jury.  Counsel for the Crown submitted that the proposed publication is little if at all different to countless others to which the jury may have been subjected and in that sense is unremarkable. 

1. Despite the force of those submissions, I am not convinced.  For once it is accepted, as it must be, that the matter is one which involves a fact/value analysis, and that a trial judge is better placed to make the assessment than an appellate court, I consider that we should be slow to intervene.  Indeed, we should not intervene unless persuaded that it was not open to the judge to come to the decision he did – or in other words, unless we are persuaded that his decision was clearly wrong – and I am not so persuaded.

1. In my view, the matters which the judge identified as causing sufficient concern to warrant the order he made were enough to warrant the order.  In addition to that, counsel for the respondent identified six or seven thematic similarities between the facts of this case and the contents of the article, which add significantly to his Honour’s concerns.

1. So to say is not to conclude that decisions such as this are never reviewable, nor that it will always be the case that similarities at such a relatively high level of abstraction as applied here will be enough to warrant prohibition of publication.  But in the particular circumstances of this case, I consider that the judge was right to conclude that they were.

1. I too would dismiss the application.

EMERTON AJA

1. I too agree that the application for leave to appeal should be refused.

MAXWELL P:

1. The order of the Court is that the application be refused.