News Digital Media Pty Ltd v Mokbel

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3843 of 2009

NEWS DIGITAL MEDIA PTY LTD (ACN 000 529 457)	First Applicant
and
FAIRFAX DIGITAL LTD (ACN 066 325 782)	Second Applicant
v
ANTONIOS SAJIH MOKBEL	First Respondent
and
DIRECTOR OF PUBLIC PROSECUTIONS	Second Respondent

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JUDGES:	WARREN CJ, BUCHANAN JA and BYRNE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 October 2009
DATE OF JUDGMENT:	18 March 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 51

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PRACTICE AND PROCEDURE – Whether appeal competent under s 17(2) Supreme Court Act 1986 (Vic) - Whether restriction in s 17A(3) of the Supreme Court Act 1986 (Vic) operates to prevent an appeal from an order of a Trial Division judge.

COURTS AND JUDGES – Criminal law and procedure – Jurisdiction – Inherent jurisdiction – s 18 Supreme Court Act (Vic) – Orders in the nature of suppression orders – Leave to appeal refused in respect of orders suppressing general information about first respondent and information about criminal proceedings against first respondent - Whether order to remove material from applicants’ websites necessary to protect trial process – Whether order for removal futile - Leave to appeal granted - Appeal allowed in part - Order of trial judge set aside.

CRIMINAL LAW – Trial – Fair trial – Suppression orders – Pre-trial publicity – Public’s right to know.

APPEARANCES:	Counsel	Solicitors
For the First Applicant	Mr W T Houghton QC with Ms R L Enbom	Kelly Hazell Quill Pty Ltd
For the Second Applicant	Mr W T Houghton QC with Ms R L Enbom	Minter Ellison Lawyers
For the First Respondent	Mr O P Holdenson QC with Ms G Morgan	Robert Stary and Associates
For the Second Respondent	Mr G J C Silbert SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ
BYRNE AJA:

In 2006 the firstnamed respondent, Antonios Sajih Mokbel, absconded in the course of his trial for certain drug offences. The trial continued in his absence. He was convicted on 31 March 2006, and sentenced to serve a term of imprisonment. An appeal against this conviction and sentence is pending. These events were the subject of much media attention, as were the ultimately successful attempts to find him and to repatriate him from Greece. He was extradited to Australia to serve his sentence and, importantly for present purposes, to face trial for other offences. In fact, he faces five trials. He was charged with the murder of one Lewis Moran and with four drug importation offences. A fifth drug charge has also now been laid against him.

The proposed appeal is directed to three orders made by a judge of the Trial Division who was appointed to conduct the murder trial. His Honour was concerned to protect Mr Mokbel from the adverse impact in the minds of jurors or potential jurors of the pre-trial publicity which he had attracted. It is plain that this concern was directed, not only to the impact of this publicity on the minds of the jurors to be empanelled for the murder trial, but also to its impact on the minds of jurors to be empanelled in the other trials which Mr Mokbel was to face in the near future.

For reasons which will become apparent , it is necessary that we set out in a little detail the circumstances giving rise to this application and to the making of the orders which are sought to be impugned.

The murder trial was fixed to commence on 10 August 2009. At a pre-trial directions hearing on 14 April 2009, his Honour was asked by counsel for the accused to make certain restraining orders with respect to the publication of certain criminal proceedings in which Mr Mokbel was a party and further with respect to a number of specific matters concerning Mr Mokbel. The prosecutor supported the making of these orders. At this hearing, the Herald & Weekly Times, the ABC, the Seven Network and the Nine Network were represented. On their behalf, the order with respect to the criminal proceedings was not opposed; the more general order was opposed, but it is not the subject of the proposed appeal.

The order made on 15 April 2009 was in these terms:

THE COURT ORDERS THAT:
UNTIL 10 AUGUST 2009, OR FURTHER ORDER:
1)Publication be prohibited, of any material whatsoever, containing any reference to:
a)Forthcoming committal proceedings concerning Antonios Mokbel as Accused or co-Accused;
b)Forthcoming trial proceedings concerning Mr Mokbel as Accused or co-Accused;
c)Forthcoming proceedings in the Court of Appeal concerning Mr Mokbel.

2)Publication be prohibited, of any material whatsoever, stating that Mr Mokbel:
a) Has any previous criminal convictions;
b) Has been charged with any criminal offence;
c)Has been involved in, or associated with, the manufacture or trafficking, of drugs;
d)Has been involved in, or associated with the killing of any person;
e)Has been involved in, or associated with the ‘gangland’ or the ‘underworld’;

f) Has been associated or connected with Carl Williams.

3) Liberty to apply is reserved to the parties.

The murder trial did not commence on 10 August 2009 as expected. On that day counsel for Mr Mokbel sought a stay of the murder trial on the basis that the adverse publicity concerning his client was such that Mr Mokbel could not have a fair trial. After hearing argument over three days, his Honour on 14 August refused the stay application. A jury for the murder trial was to be empanelled on 25 August 2009.

At the commencement of the stay application, the solicitor for the same media outlets sought a variation of the orders of 15 April 2009 to permit reporting of the stay application. His Honour declined to make such an order, stating that, at the conclusion of the stay application, he would entertain an application to vary those orders. The solicitor for the media then proposed that the orders should continue until the commencement of the trial. His Honour, however, was of the view that it would be convenient that the restraints continue until further order. He then made an order extending the 15 April order until further order, that is, indefinitely. This order, made on 10 August 2009, was in these terms:

THE COURT ORDERS THAT:
1)The order made on 15 April 2009 shall continue until further order, so that:
a)Publication be prohibited, of any material whatsoever, containing any reference to:
1.Forthcoming committal proceedings concerning Antonios Mokbel as Accused or co-Accused;
2.Forthcoming trial proceedings concerning Mr Mokbel as Accused or co-Accused;
3.Forthcoming proceedings in the Court of Appeal concerning Mr Mokbel.

b)Publication be prohibited, of any material whatsoever, stating that Mr Mokbel:
1. Has any previous criminal convictions;
2. Has been charged with any criminal offence;
3.Has been involved in, or associated with, the manufacture or trafficking, of drugs;
4.Has been involved in, or associated with the killing of any person;
5.Has been involved in, or associated with the ‘gangland’ or the ‘underworld’;
6.Has been associated or connected with Carl Williams.

c) Liberty to apply is reserved to the parties.

This order is the first order the subject of the present appeal.

Upon the dismissal of the stay application on 14 August, his Honour entertained an application made on behalf of the Herald & Weekly Times, the ABC, the Nine Network and the Seven Network for an order varying the 15 April order to permit reporting of the pending murder trial. This application was supported by John Fairfax and The Age newspaper. It was opposed by the prosecution and counsel for Mr Mokbel. The application was resisted by them on the basis that the publication of the murder trial proceeding, as it proceeded, would prejudice the fair trial of Mr Mokbel in respect of the murder trial itself and the five pending drug trials, the first of which was then expected to commence on 9 November 2009. Having heard argument, his Honour on 19 August refused to vary the 15 April order. It does not appear that an order was taken out to formalise this determination. This decision is not the subject of the proposed appeal.

On 21 August, shortly before the empanelment of the jury for the murder trial, counsel for Mr Mokbel brought to the attention of the trial judge that The Age, the Herald Sun and The Australian newspapers were displaying on their websites material relating to Mr Mokbel which was highly prejudicial of him and to his prospect of obtaining a fair trial. The parties represented before the court resisting these orders were the present applicants. His Honour on that day made the second order the subject of the proposed appeal. It was in these terms:

THE COURT ORDERS THAT:
1)Until further order News Digital Media Pty Ltd and Fairfax Digital Ltd remove from their Website and not publish any Articles containing reference to Antonios Mokbel by 4 p.m. on Tuesday the 25 August 2009.

On 25 August 2009, on the first day of the murder trial, the trial judge raised a concern that his order of 15 April as extended on 10 August might not suffice to prevent publication of the murder trial. From an abundance of caution his Honour, with the concurrence of the prosecutor and counsel for the accused and without apparent reference to the media outlets, made what he called ‘the usual order’. This is the third order which is the subject of the proposed appeal. It was in these terms:

THE COURT ORDERS THAT:
1)Without limiting or in any way derogating from the order of 15 April 2009, publication is prohibited of this proceeding by any means whatsoever.
2)Publication is prohibited of the making of this order or the contents of this order save for such publication as may be necessary to permit notification of this order by an officer of this court to media outlets.

This application for leave to appeal these three orders was filed on 31 August 2009.

On 25 September 2009, the jury returned a verdict of not guilty in the murder trial. On that occasion, a solicitor appeared on behalf of the Herald & Weekly Times and the Nine Network seeking a variation of the 15 April order, but only to the extent of removing the restraint upon the publication of the concluded murder trial. He sought, first, that publication be permitted of the evidence of the trial and, presumably, of counsel’s addresses. Alternatively, he sought that publication be permitted of the fact of the acquittal together with a short description of the charge of which Mr Mokbel had been acquitted. This application was resisted on behalf of the prosecution and Mr Mokbel. His Honour refused it. This order is not the subject of any proposed appeal.

We should interpolate that, when this order was made and, indeed, when the appeal was argued, the first of the five drug trials was expected to commence in October 2009. Its commencement is now expected to be in the second half of 2010.

In this proceeding, the applicants apply for leave to appeal against the suppression orders made on 10 August 2009 and 25 August 2009, as well as the order of 21 August 2009 which was referred to on the appeal as ‘the internet order’. The application for leave was listed by order of the registrar to be heard with the appeal.

The applicants, which are the internet subsidiaries of the owners of The Australian and The Age newspapers respectively, were not parties to the suppression orders appealed against. None of the media parties to the suppression orders are party to this appeal. No point has been taken with this and we put it to one side.

The competence of the appeal

In relation to the competence of the appeal, s 17A(3) of the Supreme Court Act 1986 (‘the Act’) does not operate to prevent an appeal from a determination of a judge in the Trial Division. The present appeal is therefore competent. The sub-section provides that, subject to an exception which is not here relevant, ‘an appeal does not lie from a determination of the Trial Division constituted by a Judge of the Court or constituted by an Associate Judge made on or in relation to the trial or proposed trial of a person on indictment’. Three cases are of particular relevance in arriving at this conclusion.

The first is Herald and Weekly Times Pty Ltd v A where the suppression order in question was cast in terms that ‘the publication of any reference to the antecedents, current charge, or pending charges, or any reference which reflects adversely upon the credit of [A, B or X] in any media outlet, newspaper, radio or television station is prohibited until further notice.’[1]
[1](2005) 160 A Crim R 299, 301 (‘HWT v A’).

In interpreting the phrase ‘in relation to’, a two-judge bench of the Court took a contextual approach to give effect to the legislative purpose. The legislative purpose of s 17A(3) was recognised in Smith v The Queen[2] as avoiding the fragmentation of criminal trials by appeals brought from rulings before or during the course of a trial. In PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service, the words ‘in relation to’ were interpreted as ‘prima facie broad and designed to catch things which have sufficient nexus to the subject.’[3]
[2](1994) 181 CLR 338 (‘Smith’).
[3](1995) 184 CLR 301, 330.

In HWT v A, however, the Court preferred a narrow interpretation of the phrase in s 17A(3), stating that as a privative clause the section should be strictly construed, especially where it would render the determination in question wholly immune from appeal.[4] Taking Smith to indicate that the words ‘in relation to’ were intended to denote a direct nexus with the trial, the Court concluded that the relevant order was framed in a way that did not provide such a nexus and that no question of fragmentation of the proposed trial arose in that case.[5] The Court was careful to confine its decision specifically to the order the subject of the application before it.[6]
[4]HWT v A (2005) 160 A Crim R 299, 304.
[5]HWT v A (2005) 160 A Crim R 299, 303-304.
[6]HWT v A (2005) 160 A Crim R 299, 304.

In reaching its decision, the Court asked three questions, referred to as ‘helpful pointers’.[7] First, did the decision affect the conduct of the trial? Secondly, is the subject matter of the order an integral part of the trial process? Thirdly, is the decision one arising in issue between the Crown and the defendant formulated by the indictment? However, it is important to note that these questions are not in themselves determinative; they merely provide guidance and ‘are not to be treated as a judicial definition … [I]n a given case a given pointer may point in the wrong direction.’[8]
[7]The ‘helpful pointers’ are recognised in England as providing guidance as to whether a decision is a matter ‘relating to trial on indictment’ within the meaning of s 29(3) of the Supreme Court Act 1981 (UK). See also Victoria Legal Aid v Lewis [1998] 4 VR 517, 521.
[8]Victoria Legal Aid v Lewis [1998] 4 VR 517, 521.

The Court also observed that the timing of an order may be relevant to deciding whether the determination falls within the parameters of s 17A(3) of the Act.[9]
[9]HWT v A (2005) 160 A Crim R 299, 304.

Orders in the second case, General Television Corporation Pty Ltd v Director of Public Prosecutions,[10] were also cast in broad terms:

1.The transmission, publication, broadcasting or exhibiting of the production referred to as ‘Underbelly’ be prohibited in the State of Victoria until after the completion of the trial and verdict in the matter of R v [A].
2.Direct that the television series referred to as ‘Underbelly’ not be published on the internet in Victoria and the ‘Family Tree site – inside the Underbelly, which looks at the evolving relationships between the key characters’ be prohibited until after the trial and verdict in the matter of [A].

[10](2008) 19 VR 68 (‘GTC v DPP’).

Adopting the reasoning in HWT v A as the basis for its conclusion, the Court held that the relevant suppression order did not fall within the ambit of s 17A(3) of the Act.[11]
[11]GTC v DPP (2008) 19 VR 68, 73.

The third case, Herald and Weekly Times Pty Ltd v Mokbel,[12] furnishes some obiter on the point. The case concerned an order prohibiting publication by print, radio, television, electronic or any other means whatsoever of any evidence given in the trial. The case was decided on the ground that leave to appeal was required, and refused. Although no final conclusion as to the application of s 17A(3) of the Act was drawn, observations were made to the effect that s 17A(3) may have applied, in particular because the order was tied closely to a particular trial and made when the trial was being conducted.[13] Importantly, Whelan AJA (with whom Callaway and Ashley JJA agreed) observed that it was unnecessary and undesirable to reach a final conclusion in relation to s 17A(3) because the application was bought on urgently, with scant material and no contrary submissions were heard.[14]
[12](2006) 161 A Crim R 238 (‘HWT v Mokbel’).
[13] HWT v Mokbel (2006) 161 A Crim R 238, 240, 246.
[14]HWT v Mokbel (2006) 161 A Crim R 238, 246.

HWT v Mokbel can be distinguished from the present appeal, and HWT v A and GTC v DPP on two inextricably linked bases. First, the orders the subject of the application in HWT v Mokbel were made at a late stage in the criminal trial. This tends toward a conclusion that they fall within the ambit of s 17A(3) of the Act. In HWT v A, GTC v DPP and the present case, the orders were made prior to commencement of the trial.

Secondly, the orders in HWT v Mokbel prohibited the publication of any evidence given in the trial. This can be contrasted with GTC v DPP where the subject of the suppression order was a television programme dramatising alleged conduct of the accused; and HWT v A where reference to current or pending charges or matters going to the credit of relevant persons was prohibited.

General suppression orders the subject of this appeal must be considered in a similar light. Proceedings suppression orders, however, may more readily fall within the parameters of ‘in relation to the trial’ as specified in s 17A(3) of the Act. Despite this, and for the reasons that follow, we do not find that such orders are within the ambit of that section.

Bearing in mind the analysis in HWT v A, and applying the helpful pointers to the present facts, none of the orders, whether general orders or proceedings orders, were made ‘on or in relation to’ the trial of the accused. Being concerned with suppression of the publication of information about the accused, matters that go to his credibility and proceedings involving him, they do not affect the conduct of the trial of the accused; nor do they raise an issue between the Crown and the accused; nor are they an integral part of the trial process as, say, an order to provide legal assistance or a stay of the proceedings, would be.[15] Even the proceedings suppression order made 25 August 2009, prohibiting publication of the criminal proceeding by any means whatsoever, cannot be considered an ‘integral’ part of the trial process. The right to a fair trial may be considered integral to the trial process, however, an order whose subject matter is the prohibition of publication of specific material cannot be so considered, even if its purpose is to secure a fair trial for the accused. Following the reasoning in HWT v A, the required nexus does not exist between the orders the subject of the present appeal and the trial. The appeal is, therefore, competent.
[15]HWT v A (2005) 160 A Crim R 299, 303.

One further point concerns the future application of Smith in the context of the purpose of s 17A(3) of the Act. Changes brought about by the Criminal Procedure Act 2009 provide for interlocutory appeals in criminal matters for decisions made on or after 1 January 2010. Although these changes do not apply to the present appeal, it is worth noting that the legislative purpose of s 17A(3), as expounded in Smith, has been diluted by a broadening of the exception in s 17A(3) of the Act.

The exception provided in s 17A(3), that is through provisions in Part VI of the Crimes Act 1958, has been replaced with an exception provided by the provisions in Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009. That Part provides for, inter alia, appeals against interlocutory decisions to the Court of Appeal from the County Court and Trial Division of the Supreme Court. The second reading speech for the Criminal Procedure Act 2009 outlines the policy behind the provision of interlocutory appeals:

Interlocutory appeals provide a mechanism for a trial judge's rulings to be tested on appeal before a trial starts or, in limited circumstances, during trial … Because appealing after a trial has commenced inevitably interrupts the trial, stronger reasons are required to justify an interlocutory appeal during trial.
…
Because interlocutory appeals deal with issues early in the proceedings that might otherwise result in a successful post-conviction appeal, they can:
•     prevent guilty people being acquitted;
•     prevent innocent people from being wrongly convicted; and
•     prevent retrials because there was an error at the accused's trial.

As a result, interlocutory appeals can be of benefit in reducing the stress and trauma of court proceedings for victims, witnesses and the accused.[16]

[16]Victoria, Parliamentary Debates, House of Assembly, 4 December 2008, 4986-7 (Robert Hulls, Attorney-General).

Whilst the legislative purpose expounded in Smith remains pertinent to the limiting of appeals contained in s 17A(3), the legislative purpose behind the broader exception now contained in that section is to provide for early resolution of appellable issues that would otherwise be held over until the post-conviction stage.

The Suppression Orders

These orders fall into two parts: orders restraining publication of the three proceedings involving Mr Mokbel (‘the proceedings suppression order’),[17] and those restraining the publication of the specific matters concerning Mr Mokbel (‘the general suppression order’).[18] The further order made on 25 August 2009 prohibiting publication of the making of the suppression order itself[19] was not the subject of argument and we say nothing about it. We refer to these two types of orders as ‘suppression orders’, adopting the terminology commonly used in Victoria by the media and in this appeal. In New South Wales, the more neutral term in use is ‘non-publication orders’, and in England, the preferred description is ‘postponement orders’. Either of these is more apt than the Victorian expression, because the purpose and effect of the 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 this publication would pose a serious risk or impediment to the proper administration of justice.
[17]Order of 15 April 2009 [1], Order of 10 August 2009 [1(a)] and Order of 25 August 2009 [1].
[18]Order of 15 April 2009 [2] and Order of 10 August 2009 [1(b)].
[19]Order of 25 August 2009 [2].

Before we turn to the detail, we make the general observation that these two types of suppression order are essentially different; they raise very different issues of policy and jurisdiction.

Superior courts have long asserted the power to prevent the publication of proceedings or parts of proceedings before them where justice requires that this be done.[20] Such an order brings into play two very important policy matters: the requirement that justice be administered in public; and the requirement that justice be administered. In a context such as the present, the latter principle includes a requirement that an accused person is entitled to a trial conducted in accordance with law by an impartial tribunal.[21] The former principle, which has been described as the cornerstone of our judicial system,[22] means that the work of the courts is to be performed under public scrutiny, this being a powerful safeguard against the risk of their abusing their power, or departing from the strictest standards of impartiality.[23] In the modern environment, the media, as the eyes and ears of the general public,[24] play an important part in this. By the fair and accurate reporting of court proceedings they ensure that the public, who may not be able to attend a hearing, are kept informed of the functioning of the court process.[25] The importance of this principle is such that the making of an order restraining, restricting, or postponing the reporting of a court proceeding or any part of a court proceeding is exceptional and, in general, will be made only where it is necessary to preserve the integrity of the court process, to ensure that the process can function properly, or to protect privacy or confidentiality of very limited kinds. These include confidentiality with respect to trade secrets or confidential information,[26] where the trial publicity might defeat the purpose of the litigation, and confidentiality with respect to police informers, where it might jeopardise this source of police intelligence.[27]
[20]Scott v Scott [1913] AC 417, 437 (Viscount Haldane LC).
[21]See Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24.
[22]Russell v Russell (1976) 134 CLR 495, 505 (Barwick CJ); 520 (Gibbs J). See also, JJ Spigelman, ’Seen to be Done: the Principle of Open Justice – Part I’ (2000) 74 Australian Law Journal 290, and ’Seen to be Done: the Principle of Open Justice – Part II’ (2000) 74 Australian Law Journal 378.
[23]Re Application by Chief Commissioner of Police (Victoria) (2004) 9 VR 275, 286 [25] (Winneke P, Ormiston and Vincent JJA).
[24]Attorney-General v Guardian Newspapers (No 2) [1990] AC 109, 183 (Donaldson MR).
[25]R v Davis (1995) 57 FCR 512, 513-4.
[26]David Syme & Co Ltd General Motors Holden’s Ltd [1984] 2 NSWLR 294.
[27]Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344, 357 [25]-[49] (Spigelman CJ); R v Socialist Worker Printers and Publishers [1975] 1 QB 637.

The second type of order, which we have referred to as a general suppression order, is directed to the same objective, namely to protect and preserve the court process. But the countervailing principle is not the preservation of open justice; it is that of free speech or the public’s ‘right to know’.[28] The public has a right to know about matters that lie within their legitimate area of interest, and the media have a right to disseminate information, presumably to satisfy this right to know. A moment’s reflection, however, will demonstrate that this countervailing principle will assume a greater or lesser importance depending upon the subject-matter of the information. This information, may, at one end of the spectrum, concern the performance of the functions of those in the highest office; and at the other no more than salacious gossip about personal shortcomings of the less lofty.
[28]See Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 27 SR (NSW) 242; R v Glennon (1992) 173 CLR 592, 611-2 (Brennan J). These are, of course, not an exhaustive list of the circumstances where at common law an order might be made. See Halsbury’s Laws of Australia, (at 16 March 2010) 105 Contempt ‘Contempt by Publication’ [105-95].

And so, in the present case, the principle invoked by the media in opposing this order on 15 April 2009 was one which must assert the right of the public to know whether Mr Mokbel had previous convictions, had been charged with an offence, and had one of the stipulated involvements or associations with criminal activities or with persons who might be considered to be involved in those activities. The interest of the public in knowing these things, if these things existed, and the right or professional obligation of the media to satisfy this public interest cannot be said to rank at the highest level of principle.

But we do not wish it to be thought that we place little value upon the right of the media to provide to the public information of all kinds. It is a right of great antiquity, and is protected by s 15 of the Charter of Human Rights and Responsibilities Act 2004 (Vic). Any restraint upon it must be justified.

We mention this distinction between proceedings suppression orders and general suppression orders because it was not mentioned in argument, and because it is a distinction which is often not drawn in discussions of suppression orders where those opposing restraints on publication are often heard to invoke the high principle of open justice in both circumstances.

This said, there are two sources for the power of the Court to make suppression orders. There is conferred on this Court by s 18 of the Supreme Court Act 1986 (Vic) power to restrain publication of proceedings. Furthermore, a superior court has an inherent power to protect its own process, and an order may be made for this purpose. We agree with Buchanan JA that this power has not been displaced by the enactment of ss. 18 and 19,[29] which are in these terms:
[29]See Re a Former Officer of the Australian Security Intelligence Organisation [1987] VR 875, 876 (Brooking J)

18. Power to close proceedings to the public
(1) The Court may in the circumstances mentioned in section 19 -
(a)order that the whole or any part of a proceeding be heard in closed court; or
(b)order that only persons or classes of persons specified by it may be present during the whole or any part of a proceeding; or
(c)make an order prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding.

(2)This section applies to any proceeding, whether civil or criminal.
(3)If an order has been made under this section the Court must cause a copy of it to be posted on a door of the court house or in another conspicuous place where notices are usually posted at the court house.
(4)A person must not contravene an order made and posted under this section.

Penalty: 1000 penalty units or imprisonment for 3 months.
19. Circumstances in which order may be made under section 18
The Court may make an order under section 18 if in its opinion it is necessary to do so in order not to –
(a)endanger the national or international security of Australia; or
(b)prejudice the administration of justice; or
(c)endanger the physical safety of any person; or
(d)offend public decency or morality; or
(e)cause undue distress or embarrassment to the complainant in a proceeding that relates to a charge for an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I of the Crimes Act 1958 or under any corresponding previous enactment or for an attempt to commit any such offence or an assault with intent to commit any such offence; or
(f)cause undue distress or embarrassment to a witness under examination in a proceeding of any kind relating to a charge for an offence where the conduct constituting the offence consists wholly or partly of taking part, or attempting to take part, in an act of sexual penetration as defined in section 35 of the Crimes Act 1958.

In this case, the suppression orders were said to have been supported by ss 18(1)(c) and 19(1)(b). In s 3 ‘proceeding’ is defined as meaning ‘any matter in the Court other than a criminal proceeding’. Having regard to s 18(2), the excepting phrase in this definition may be ignored.

Two questions then arise:

(1)Was each of the impugned suppression orders an order prohibiting publication of a report of a matter in this court or of information derived from this?
(2)If yes to (1), was the order made in the circumstances described in s 19(b)?

It was accepted on the appeal that this court had inherent jurisdiction to restrain certain publications in order to protect its process,[30] although there was some debate as to its ambit. The third question, then, is this:

(3)Was each of the orders properly made in the exercise of this inherent jurisdiction?

[30]See, eg, General Television Corporation Pty Ltd v DPP (2008) 19 VR 68, 75.

As to the proceedings suppression order, it should be noted that no objection was made to the order when it was first made on 15 April 2009. It was not suggested then that it was beyond power or that it was not an appropriate exercise of that power. When the order was extended indefinitely on 10 August 2009, again no argument was addressed to these matters. What was put on behalf of the media at that stage was that the April order be varied to permit publication in general terms of the facts that Mr Mokbel was facing a trial for murder and that he had sought a stay by reason of pre‑trial publicity.

It is difficult to see, therefore, how the present applicants can, on appeal, raise issues as to the power of the primary judge to make the order of 10 August with respect to the three proceedings, or as to his Honour’s exercise of that power. Not only was this order not resisted on 10 August 2009 or, indeed, at all, but we do not have the benefit of the views of the primary judge upon the matters which the present applicants wish now to agitate.

Accordingly, it is not necessary that we consider whether s 18 would empower the court to restrain publication of a proceeding in this Court other than that before the judge in question, or the publication of a committal proceeding and, if so, whether such an order was necessary in terms of s 19. Nor is it necessary that we enter upon the interesting question as to the ambit of the inherent power of the court to restrain publication of a fair and accurate report of a criminal proceeding for the purpose of protecting its process in that or another proceeding.[31]
[31]See John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476-7 (McHugh JA).

Much the same might be said with respect to the general suppression order made on 15 April 2009 and later extended on 10 August 2009. In this case, the order was to be resisted on 10 August, but this was stood over indefinitely, leaving it to the media to apply to seek its variation or discharge. The application was never made.

The general suppression order cannot be supported by s 18; it must depend upon the inherent jurisdiction of the Court. It would seem that in making these orders his Honour was exercising a power to grant a quia timet injunction to restrain the publication of material which he apprehended was likely to be published and would, if published, have jeopardised the forthcoming murder trial and Mr Mokbel’s other pending trials.[32] There is no doubt that this Court has such a power. In General Television Corporation Pty Ltd v DPP the Court of Appeal recently so held.[33]
[32]We reserve for another day whether this is in truth the only jurisdictional basis for an application for an anticipatory suppression order. See John Fairfax Publications Pty Ltdv District Court of New South Wales (2004) 61 NSWLR 344, 360 [59]. It may be that the jurisdiction arises from a more general inherent power of the Court to protect its own process.
[33](2008) 19 VR 68, 74 [19].

In A-G v Random House Group Ltd[34] the Attorney- General sought an injunction to prevent the further sale of a book on the ground that the publication would jeopardise a criminal trial then proceeding. It was decided in the shadow of United Kingdom legislation, namely the Contempt of Court Act 1981 and the Human Rights Act 1998. Tugendhat J observed at the outset that injunctions to restrain a contempt of court are rare.[35] This is in part because the act to be restrained is criminal in nature:

Where the contempt would consist of impeding or prejudicing the course of justice, it will rarely be appropriate for two reasons. ... The second is that it is the wise and settled practice of the courts not to grant injunctions restraining the commission of a criminal act (and contempt of court is a criminal or quasi-criminal act) unless the penalties available under the criminal law have proved to be inadequate to deter the commission of the offences. Unlawful street trading and breaches of the provisions of the Shops Acts are well-known examples.[36]

[34][2009] EWHC 1727.

[35]A-G v Random House Group Ltd [2009] EWHC 1727, [16] citing the judgment of Gibson LJ in Leary v BBC (Unreported, English Court of Appeal, 9 September 1989).

[36]A-G v Random House Group Ltd [2009] EWHC 1727, [28] citing the judgment of Lord Donaldson MR in P v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370, 381-2.

A further reason is that the order, if made, is not one which merely affects private rights:

…while the Publishers are concerned about the damage they have suffered, and would continue to suffer, in complying with the injunction, this case is not about damages on either side. On the one hand it is about the right to a fair trial. This is not just a private right of the accused. If it were, they would be the proper applicants. That there should be a fair trial is a matter of public interest, and the Attorney-General comes to court to uphold that public right and interest. [37]

[37]A-G v Random House Group Ltd [2009] EWHC 1727, [36].

His Lordship observed that, faced with such an application for a quia timet injunction, the Court is not required to approach it as one for interim relief or on the basis that the order should be made to maintain the status quo pending a trial. It is not likely that the right to publish will ever be the subject of a trial and final orders. His Lordship was of opinion that the applicant for a suppression order of the kind presently under consideration must demonstrate to the criminal standard of proof that there is a threatened contempt. This means that it must establish to that standard both that the apprehended publication is likely to occur and that, if it occurs, it would create a risk that the pending trial will be impeded or prejudiced to such a degree as would amount to a contempt.[38]
[38][2009] EWHC 1727, [44]. See also, A-G v BBC [1981] AC 303, 311 (Lord Denning MR).

This decision was made in the light of the statutory regime in force in England. The position in Australia may not be quite the same. In Attorney-General for New South Wales v Time Inc Magazine Company Pty Ltd[39] the defendant had published in a magazine already on sale, an article including photographs of a man accused of murder. The Attorney-General sought orders that the defendant be restrained from further publication, distribution or circulation of the material and that it take all steps within its power to retrieve copies of the magazine. The Court of Appeal approached the question of interlocutory relief on the basis that the test was whether there was a triable issue as whether the publication of the material, as a matter of practical reality, would have a tendency to interfere with the due course of justice.[40]
[39][1994] BC9402563 (Unreported, Kirby P, Handley JA, Sheller JA, 7 June 1994).
[40]Attorney-General for New South Wales v Time Inc Magazine Company Pty Ltd [1994] BC9402563 (Unreported, Kirby P, Handley JA, Sheller JA, 7 June 1994) at [6]-[7] (Kirby P, Handley and Sheller JJA).

Doe v John Fairfax Publications Pty Ltd[41] was a case where the applicant who was awaiting committal proceeding for serious charges sought an injunction restraining the publication of his name in the context of certain drug importations. In making the orders sought, Spender AJ raised the question as to the nature of the jurisdiction of the Court in making the orders sought. His Honour was of the opinion that the Court was acting in protection of the due administration of justice:

So long as this fundamental principle is observed, in my view it is beside the point that in any particular case, as a collateral by-product or by-blow of the exercise of that jurisdiction, a criminal act may be prevented.[42]

[41](1995) 125 FLR 372.

[42]Doe v John Fairfax Publications Pty Ltd (1995) 125 FLR 372, 384.

In Kamm v Channel Seven Sydney[43], Campbell J acknowledged the reluctance of the Court to grant an injunction restraining an apprehended crime.[44] Nevertheless, his Honour was content to proceed on the basis that, for the purposes of an application for an interlocutory suppression order:

…the question of whether there is a serious question to be tried concerning whether it is likely that there will be a contempt of the Court should be decided on the ordinary civil standard of balance of probabilities.[45]

[43][2005] NSW SC 699 (Unreported, Campbell J, 8 July 2005).

[44][2005] NSW SC 699 (Unreported, Campbell J, 8 July 2005) [9], citing Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716, 720-725 (Young J).

[45][2005] NSW SC 699 (Unreported, Campbell J, 8 July 2005) [13].

In General Television Corporation Pty Ltd v Director of Public Prosecutions[46] this Court expressed the view that the Court in making a suppression order in its inherent jurisdiction is exercising a general power to protect its own process notwithstanding that it is akin to that of restraining a threatened contempt. The procedural constraints which may be applicable to an application for an injunction to restrain criminal conduct may not always be appropriate to an application for a suppression order. In these circumstances, therefore, this jurisdiction may be exercised where the Court, being mindful of the importance of the principle of free speech, is nevertheless, satisfied on the balance of probabilities that a suppression order is necessary to protect its own process from risk.[47]
[46](2008) 19 VR 68, 76 [28].
[47]R v Glennon (1992) 173 CLR 592, 612-3 (Brennan J)

We make the general observation that an appellate court will be slow to interfere with the discretion of the trial judge in making suppression orders. The impact of the publicity must be considered, not in the abstract, but in the context of the atmosphere of the trial and of the community at the relevant time, and having regard to the issues raised. The trial judge, being sensitive to these matters, and mindful of the requirement that the trial should, if at all possible, be conducted in public and also of the important role of the media in exercising the public’s right of free speech, is in a pre-eminent position to assess the risk to the trial process which is sought to be protected by the suppression order.

The primary judge, in the unusual circumstances confronting him in this case, was of opinion that the right of Mr Mokbel to a fair trial before an unprejudiced jury required that the orders be made. We would be slow to dissent from such a conclusion whether it be one reached in April 2009 or in August or September of that year. By the time that the murder trial was completed his Honour had acquired a considerable familiarity with the circumstances, as is demonstrated in his judgments with respect to the stay application on 14 August 2009, and on the application for the internet order on 21 August 2009.

We would not want to embark upon an examination of the correctness of these orders without the benefit of full argument upon the questions of principle which we have set out above, and a proper examination of the facts to which they are to apply.

In these circumstances, we would refuse leave to appeal with respect to the suppression orders.

The Internet Order

This is the order made on 21 August 2009 which has two parts: it directs the present applicants to remove material from their websites, namely, any article containing any reference to Mr Mokbel; and it prohibits them from publishing in the future any such article. It will be noted that the order is in very general terms – it affects a wider range of matters than those prohibited by the 15 April general suppression order. The order is of indefinite duration.

On the appeal this order was sought to be justified only as an exercise of the inherent jurisdiction of the court.

The material in question was put up on the applicants’ websites before the making of the 15 April order. It was described in argument as ‘historical articles’. It was not suggested before us that the applicants, by putting up the articles when they did, committed a contempt of court. Nevertheless, had they done so in the face of the pending trial it is arguable that this would have amounted to a contempt. In any event, to the extent that the material dealt with matters whose publication was prohibited by the suppression orders of 15 April, their publication after that date would have breached those orders. It appears that his Honour was of the opinion that the maintenance of the material on the websites was contrary to the spirit, if not the letter, of his 15 April orders. The internet order, however, was not made to restrain a threatened breach of the April order; it was a new order directed to different entities and in terms different from that order. What the orders had in common was their objective – to protect the pending criminal trial process from being contaminated by irrelevant and inadmissible material concerning the accused.

In the Scottish case of HM Advocate v Beggs (No. 2)[48] the facts bore a resemblance to the present. Beggs was about to stand trial for murder when his counsel drew to the attention of the High Court of Justiciary that there were articles posted on the website of the Guardian newspaper, which if published in a newspaper would have amounted to contempt. The question then raised was whether the proprietor of the website might be dealt with for contempt under the Contempt of Court Act 1981 (UK). Under s 2, the publisher of inappropriate material at a time when a proceeding is active[49] may be subject to strict liability for contempt where the publication creates a substantial risk that the course of justice in the proceeding will be seriously impeded or prejudiced. It was therefore necessary to determine when the publication occurred. In the course of his judgment Lord Osborne observed that the material was first posted on the websites at a time when this was not objectionable. This is a point of resemblance between that case and the present. His Lordship concluded, however, that the maintenance of the material on the website after that date constituted a publication from day to day, irrespective of whether any person visited the site. He found that, as the material formed part of the archived material available on the website, it was less available than current material. The publication, therefore, did not amount to a prima facie contempt because there was no evidence that a potential juror was likely to access the material; there was no substantial risk to the course of justice.
[48](2002) SLT 139.
[49]The circumstances which render a proceeding active are set out in s 2(4).

The significance of this case, for present purposes, is his Lordship’s conclusion as to publication. If correct, it means that the material posted by the present applicants was published on each day until it was taken down under the primary judge’s internet order of 21 August. In Dow Jones & Co Pty Ltd v Gutnick,[50] the High Court considered the nature of publication in the context of defamation. The question was whether the publication of a defamatory article occurred at the place where it was posted on the defendant’s website or at the place or places where a visitor or visitor to that site accessed the article. The majority concluded that the location of the tort of defamation is where the damage to reputation occurs. Accordingly, in the case of material on the internet, it is where the defamatory material is available in comprehensible form, that is, where the material is downloaded onto the computer of a person who reads it and who, as a consequence, forms an adverse view of the plaintiff’s reputation.[51]
[50](2002) 210 CLR 575.
[51](2002) 210 CLR 575, 606 [44].

There is between these two decisions a difference as to the moment of publication. Is it on every day that the material is available on the internet, or on the day that someone accesses the material which is available on the internet? In the case where the claim is for damages for defamation, the publication occurs when the material comes to the attention of the visitor to the site in whose eyes the plaintiff’s reputation suffers damage. In the case of contempt, where the concern is the risk to the legal process, this occurs when the material is made available to the juror or potential juror. Accordingly, we would accept the analysis of Lord Osborne that the contempt occurs when and where the material is available to such a person, whether it be shown that the person accessed it or not. Contempt occurs when the court process is exposed to risk, irrespective of whether the risk becomes actuality. This is consistent with the approach of the Court to allegations of contempt by publication of prejudicial material in the print or radio media. In such a case, the prosecution case does not depend upon proof that a juror or potential juror actually read or heard the prejudicial material; it is sufficient that, as at the time of publication, the publication, assessed objectively, has a real and definite tendency to prejudice or embarrass the particular proceeding.[52]
[52]John Fairfax & Sons Ltd v McRae (1955) 93 CLR 351, 372 (Dixon CJ, Fullagar, Kitto,Taylor JJ).

In the present case, the mischief to which the internet order was directed was the danger caused by the maintenance of the website publications, rather than their being posted on the websites. His Honour adopted the following striking analogy:

In the course of argument, I postulated to Mr Houghton an example of a case where a person erects a sign on the person’s private property which would have the potential to prejudice the fair trial of an accused person. Mr Houghton submitted that this court would not have the power to prevent the continued publication of that sign by making an order that it be removed. In my view, he was unable to advance, when challenged, any adequate reason why the court’s power would not extend in a necessary case thus far. Indeed, in my view, it would make a mockery of the inherent jurisdiction of this court, to protect the right of an accused person to a fair trial, if this court did not have the power, not only to prevent anticipatory breaches of the right of a fair trial, but indeed continuing and ongoing such breaches.

Upon the appeal, counsel for the applicants pressed the submission that this Court would have no power to direct the removal of such a billboard, arguing that the cases would limit the authority of the court to such publications in, or in the vicinity of, the court. We do not agree. It may be difficult to establish that the erection of the sign on property remote from the court would jeopardise the trial, but this is a factual matter. For example, if such a sign were erected on property near the residence of one or more jurors, the court would, in our opinion, have the inherent power to have it taken down in the same way as it might prevent any improper interference with a juror.

As we have mentioned, the Court has inherent power to restrain the apprehended publication of material which would, if published, produce a real risk that the material would interfere substantially with the administration of justice in a pending proceeding,[53] and thereby constitute a contempt of court.[54] There may be a question in a given case if the apprehended publication was likely to occur, as to whether it would be likely to come to the attention of a potential juror or jurors. This question may involve a consideration of the form and manner of the publication, including, in the case of publication on the internet, whether it is on a website, on Facebook, YouTube or otherwise, for this will bear upon its accessibility to jurors or potential jurors. A decision as to whether a risk is sufficiently real or substantial to warrant the exercise of the court’s inherent power must also have regard to the assumption that jurors will comply with their legal obligations under the Juries Act 2000 (Vic), in particular s 78A,[55] as well as judicial directions given during the course of the trial.
[53]Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 27-8 (Mason CJ)
[54]We put to one side a publication which is intended by the publisher to have this effect. This was not such a case.
[55]Section 78A of the Juries Act 2000 (Vic) forbids a person who is on a panel for a trial, or a juror in a trial, from making an enquiry for the purposes of obtaining information about a party to the trial or any matter relevant to the trial, except in the proper exercise of their functions as a juror (s 78A(1)). This section applies from the time a person is selected or allocated as part of a panel for a trial until they are excused from jury service, return to the jury pool, or the jury, or individual juror, are discharged by the trial judge (s 78A(2)). In this section, ‘making an enquiry’ includes ‘conducting research by any means’ (s 78A(5)(b)). The specific example given under s 78A(5)(b) is ‘[u]sing the internet to search an electronic database for information’.

The standard[56] recommended judicial directions given to juries in this State are short and to the point:

You must not base your decision on any information you may have obtained outside this courtroom.[57] For example, you must completely ignore anything that you’ve seen or heard in the media about this case, or about the people involved in it. You must consider only the evidence presented to you here in court and the view which forms part of the evidence.[58]

[56]This must, of course, be tailored to suit the facts of the case: HML v R (2008) 235 CLR 334, 386 [120] (Hayne J).

[57]This might have to be modified where there is a demonstration, experiment or inspection to be held (Evidence Act 2009 (Vic) s 54).

[58]Victorian Criminal Charge Book, Judicial College of Victoria, 2009, < [3.5.1].

And:

You also must not make any investigations or inquiries or conduct independent research concerning any aspect of the case or person connected with it. You must not use any research tools, such as the Internet, to access legal databases, earlier decisions of this or other courts, or any other material of any kind relating to the matters in the trial. You must not ask anyone else to undertake such investigations on your behalf.[59]

[59]Victorian Criminal Charge Book, Judicial College of Victoria, 2009, < [1.5.2].

The assumption that juries act upon such directions has received consistent judicial support:

The judicial experience is overwhelmingly that the corporate integrity of juries can be relied upon and that juries do comply faithfully with directions given by judges to put aside prejudicial material and to consider their verdict on the basis of the evidence put before them.[60]

[60]General Television Corp Pty Ltd v Director of Public Prosecutions (Underbelly case) (2008) 19 VR 68, 84 [54]. See also Yuill v R (1993) 69 A Crim R 450, 453-4 (Kirby ACJ).

As Spigelman CJ observed in John Fairfax Publications Pty Ltd v District Court of New South Wales:

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 directions that are given and implement them. In particular that they listen to direction that they are to determine guilt only on the evidence before them.[61]

[61](2004) 61 NSWLR 344, 366 [103].

This confidence in the corporate 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 their respect for these constraints. It has also relied upon the power of the court to make orders restraining publications which might breach these restraints. In the case of such an order, there will often be the question as to its necessity, and as to its ambit; an order should not be made unless this be 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.[62]
[62]John Fairfax & Sons Ltd v Police Tribunal (1986) 5 NSWLR 465, 476-7 (McHugh JA); X v General Television Corporation Pty Ltd (2008) 187 A Crim R 533, 540 [44] (Vickery J).

The principal area of debate upon this appeal was as to the necessity and the utility of the internet order which the primary judge made on 21 August 2009. Evidence was placed before the Court as to the use which is made of the internet, and of the number of internet sites containing prejudicial material concerning Mr Mokbel. We were told that when an organisation such as one of the applicants posts material on its website, this material may be cached on other websites in Australia and overseas. Thus the searcher may find it on these sites notwithstanding that the original publisher has taken it down. Accordingly, it was said, there was no practical utility in making the internet order of 21 August. It is for this reason that, in the United Kingdom, an order of this kind commonly includes a public domain exception in these terms.

This order does not restrict the publishing of information which before the service on [the respondent] of this order was already in the public domain in England and Wales as a result of publication by another person in any newspaper, magazine, sound or television broadcast or cable or satellite programme service or on the internet website of a media organisation operating within England and Wales.[63]

[63]See Essex County Council v Stedman [2009] EWHC (Fam) 935, [9].

It is the interposition of the internet which causes the particular difficulty in this case. For present purposes, the internet has four characteristics which are not present in publication in paper form or by billboard, radio or television.

First, it is permanent, like a paper publication or a publication on a billboard. In the case of a radio or television publication, it may, of course, be made permanent by recording the sound and pictures, but it then becomes a different publication.

Second, the publication lacks a specific location. By this we mean that a person in Melbourne, or from a community from which the jury is drawn, has ready access to material on the internet wherever that material has been posted. Unlike the case of a publication in a newspaper, on the radio or on television, the person has no greater difficulty accessing an interstate or overseas publication than they would an article published on a local website. This means, also, that the ordinary Court processes of injunction or the threat of prosecution for contempt to protect jurors from contamination face difficulties where the person responsible is outside the jurisdiction of the Court.

Third, for the most part, it is available to the public only by searching. We put to one side those news and other websites which volunteer current news stories to those who visit the site. These have a short period of currency as they are soon replaced by more current items.

In the case of the present publications, it is necessary for a person to search for the information. And so, the evidence shows that on 20 August, a search by the Google search engine directed to the words ‘Mokbel’ or ‘Tony Mokbel’ produced 522,000 hits. This means that, on the worldwide web, there are over half a million articles containing references to those words. If one were to apply this to a paper publication, it would be like a person visiting a fully indexed library and searching for those words in the catalogue. The searcher in the library, as on the internet, can call up and inspect any one of these articles whose subject matter contained those words. There are, however, two important distinctions. Unlike collections of electronic material on the internet, very few collections of paper publications provide the searcher with the facility of locating a publication by searching a string of words contained in the publication. Secondly, even if such a publication could be identified in this way, it is more difficult of access than material on the internet which can be very readily and virtually instantaneously retrieved downloaded and opened.

Bringing the matter closer to the facts of this case, it may be supposed that there have been since 2006, in the newspapers circulating in Victoria, hundreds or thousands of articles and references to Mr Mokbel. Many of these are in terms adverse to him and his reputation so that it would be undesirable that they be brought to the attention of a juror at his trial. These newspapers are preserved in collections maintained by the newspapers themselves, the State Library and in other libraries, including the library of this court. It has never been suggested that a suppression order should be made requiring such libraries to embargo these articles or references in some other way, stopping the searcher from having access to them. Such an order would, of course, be impractical. A more fundamental reason is that the information is available only for those persons who actually search for it.

Associated with this is the submission which attracted Lord Osborne in HM Advocate v Beggs (No. 2).[64]It was that material archived on a website is less accessible than other material on the site. There was no evidence before us that this was the case, and no argument presented to this effect. For what it is worth, we doubt very much that this is the case in a modern internet environment.
[64](2002) SLT 139, 146.

In the context of a trial of a man such as Mr Mokbel, it is exceedingly likely that most or many members of the jury panel when assembled had some knowledge of his antecedents and reputation from newspapers and electronic media published years or months before. These are matters which the trial judge can address by instructing the jury about their obligation to try the case only on the evidence. The verdict in Mr Mokbel’s murder trial suggests that this can be effective. The risk that a potential juror’s mind might at this stage be further and irremediably tainted by the presence in a library of an article or reference adverse to him must be negligible. There is no evidence that any such person would be likely to seek out this information in a library. Subject to the difference which we have identified, the prospect of such a potential juror making a search on the internet at this stage must also be negligible. A person called for jury service does not learn until very late that he or she is to be a member of a panel from which will be drawn a jury for the trial of an identified accused. And by this stage, the juror will be a recipient of advice about the impact of s 78A of the Juries Act2000 (Vic), which proscribes internet searching of this kind, and in receipt of warnings about the dangers of conducting internet or other research concerning any aspect of the trial.

In this sense, the risk to a juror from the maintenance of a non-current article on a website is significantly different from the maintenance of a sign which is before the eye of any passer-by.

Fourth, a feature of the publication of an article on an internet website is that it is available to be copied and posted on other websites outside Victoria. This means that, like the spoken word, it cannot be unsaid. There was much evidence of this before the trial judge and on the appeal. To this, his Honour made two responses. First, he said that the websites maintained by the media outlets before him were of considerable credibility so that an entry on these websites would be more likely to have an impact on the mind of the potential juror than an article on a less respectable website. Second, his Honour said that an acceptance by the court of such ‘a King Canute type argument’ as a reason for not removing the offending articles, would be for it to abrogate its responsibility to do all it can to ensure that Mr Mokbel had a fair trial. His Honour observed that the court must set a standard so that accused persons can be confident that the court is doing everything possible to protect their interests.

Accepting, with respect, the force of his Honour’s first response, we are not persuaded that the facts support it.[65] We are not at all confident that persons who might conduct an internet search for an article concerning Mr Mokbel would be more affected by an article put up by a respectable news medium rather than by a perhaps more sensational and less accurate article posted by some less reputable person or organisation. There was no evidence as to this. Indeed, if the present media worldwide itself is any guide, it is a notorious fact that the large circulation newspapers tend not to be the more responsible newspapers.
[65]In A-G v Random House Group Ltd, Tugendhat J included as a relevant factor that the author of the publication was a man whose position, as the police officer in charge of the investigation, gave the work considerable authority ([2009] EWHC 1727, [6]).

Furthermore, if the articles put up by the responsible media were to be taken down, as his Honour directed by his 21 August order, it may be supposed that this would give greater prominence for the searcher to those put up by these less responsible outlets.

The Canute argument was considered earlier this year by a judge of the Family Division of the High Court of Justice in East Sussex County Council v Stedman.[66] This was a case where the County Council sought the continuation and extension of an order previously made to prevent publication of photographs of infants whose paternity was in issue in a proceeding and the results of DNA tests in respect of them. It was not made to protect the court process; it was for the protection of the privacy of the infants. This case turned upon the local legislation and was very much concerned with the rights of the infants, but it is useful because King J refused the orders sought on grounds similar to those urged on behalf of the media before the trial judge in this case and, in the course of so doing, considered the Canute argument. In that case, like the present, there had been an enormous amount of publicity, local and overseas, concerning the subject matter of the litigation and the material covered by the orders was readily available upon a Google search of their names. Her Ladyship observed that the material which was sought to be protected was already in the public domain. Any order she might make would be effective to prohibit publication by the print media before the court but it would do nothing to keep the material from the other media. [67] She rejected a submission that the nature of the print media was such that a restraint upon them alone would provide significant protection for the infants. She mentioned as a notorious fact, that the print media are suffering loss of circulation because a large number of people, particularly young people read the news online.[68] Accordingly, the orders sought would not be effective. She added:

Eady J said in Mosley[69] ‘the Court should guard against slipping into playing the role of King Canute’. In my judgment the dam, as Eady J described it, has indeed burst and in practical terms there is no longer anything which the law can protect; the granting of the injunction at the present juncture would merely be a futile gesture.[70]

[66][2009] EWHC (Fam) 935.

[67]See A-G v Guardian Newspapers (No 2) [1990] 1 AC 109, 289 (Lord Goff).

[68]East Sussex County Council v Stedman [2009] EWHC (Fam) 935, [92].

[69]Mosley v News Group Newspapers Ltd [2008] EWHC 687, [34].

[70]East Sussex County Council v Stedman [2009] EWHC (Fam) 935, [97].

In Attorney-General for New South Wales v Time Inc Magazine Co[71] it was contended by the defendant that an order requiring it to retrieve copies of the offending publication should not be made because it had not been demonstrated that it had effective control over distributors in whose hands the published material lay. In short, the Court should not involve itself in orders which were a futility. This was shortly dismissed by the Court of Appeal, saying that it ‘would be loath to assume that this Court is without effective remedy to defend its process in circumstances such as have arisen in this case.’[72]
[71][1994] BC9402563 (Unreported, Kirby P, Handley JA, Sheller JA, 7 June 1994).
[72]Attorney-General for New South Wales v Time Inc Magazine Co [1994] BC9402563 (Unreported, Kirby P, Handley JA, Sheller JA, 7 June 1994) [9].

It is difficult to imagine the case where the court would accept that an accused must suffer a trial where the media is under less or no restraint by reason of its pre-trial coverage. To accept that position, as the trial judge observed, would be for the court to abrogate its responsibility to provide the accused with as fair a trial as is possible. The courts have always recognised that their ability to control pre-trial publicity prejudicial to an accused person is limited:

The law does what it can to protect the integrity of the criminal trial … The trial judge may conduct the trial in whatever manner is appropriate (within the ordinary procedural constraints) to counter the effect of pre-trial publicity prejudicial to an accused. However, these protective mechanisms cannot guarantee perfect impartiality.[73]

[73] R v Glennon (1992) 173 CLR 592, 614 (Brennan J). See also Murphy v R (1989) 167 CLR 64, 86 (Mason CJ and Toohey J).

Accepting this to be the case, the trial judge should always do what he or she can in order to protect the rights of the accused to a fair trial and thereby to protect the integrity of its process. This may be achieved, as his Honour sought to do in this case, by directing the removal of the source of likely contamination and by restraining further publication. In the appropriate case, the risk caused by the disclosure on a website of a prejudicial fact may be dissipated by an appropriate reminder to the jury that they are not to carry out their own research and by a firm direction that they should act only upon the evidence which is placed before them at the trial.

A trial judge in a case where pre-trial publicity may be an issue must, of course, first be aware whether any and what pre-trial publicity does in fact exist. Bell J of the High Court, writing extra-judicially,[74] has pointed out that there were available two practical steps to prevent or mitigate the problem for a forthcoming criminal trial. First, the Director of Public Prosecutions, when a trial is pending, might carry out internet searches to discover if there is any prejudicial material posted and then request that it be taken down from any local website until the trial is completed.[75] The other was for the court information officer to make such a request.[76] These suggestions presuppose that the request will be complied with and, further, that there is some utility in taking down the material.
[74]V Bell, ‘How to Preserve the Integrity of Jury Trials in a Mass Media Age’ (2005) 7 The Judicial Review 311, 319.
[75]This suggestion was offered by Spigelman CJ in R v Burrell [2004] NSWCCA 185, [39].
[76]This appears to have been done in Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344, 349 [11].

It then falls to the trial judge, after hearing submissions, to determine the seriousness of the risk to the trial process, and, where appropriate, to take steps to protect the process. There are many strategies available.[77] These include postponing the trial and changing its venue. The judge may remind the jury panel before the jury is struck of their obligation to try the case only on the evidence to be presented and, having done so, enquire whether any member of the panel felt unable to discharge this obligation by reason of the pre-trial publicity. The judge will normally expect that the media will refrain from publishing prejudicial material, but, in the case where this is necessary, he or she may make an order with respect to the existing or future publication of such material.
[77]See R v Glennon (1992) 173 CLR 592, 614-5 (Brennan J).

We return now to the internet order in this case. In a sense, the two parts of the order overlap. If publication of material on a website occurs every day that the material is available on the website, an order restraining a person from publishing must involve the removal of the material from the website or, in some way, making it inaccessible. It is, however, clear from the wording of the order that his Honour intended to direct the removal of material of the kind described which had in the past been posted on the websites, and to prevent the applicants from posting this material in the future.

We respectfully doubt the necessity for making that part of the order requiring the applicants take down the material from their websites provided the articles, the subject of the order, were no longer sufficiently current or were not presented in such a way as to be forced upon a visitor to the site who was not searching for them. We are of the opinion that a juror in this case would not be likely to have inadvertently come across material adverse to Mr Mokbel which was archived and not readily available to such a visitor. Nor do we readily accept that a juror would deliberately set about searching for such material in defiance of the trial judge’s warning and direction. Moreover, if, as the evidence shows, the removal of the offending material did not prevent a determined searcher from accessing the same material from a cached website, it cannot be said that the order was necessary for the protection of the court process with respect to Mr Mokbel’s pending trials. In any event, in its terms, the order which deals with ‘any Articles containing reference to Antonios Mokbel’ went far beyond that which might reasonably be required to protect that process. We conclude that the circumstances before his Honour did not disclose a necessity for the making of this part of the internet order. This part of the order should, therefore, be set aside.

That part of the order which prohibited publication in the future lies within the inherent power of the Court if this was necessary to protect the integrity of its criminal process. Whether in a given case, this requirement is made out, will depend upon the nature of the material to be put up, the likelihood that it would in fact be put up, the likelihood in all the circumstances that it would have the necessary harmful impact upon jurors or prospective jurors. Again, the subject matter of the order in this case exceeded what might reasonably be required. There was no evidence before his Honour entitling him to find that either of the media was contemplating putting up any further material about Mr Mokbel, or, as to its content. Absent such evidence, the Court must rely upon the awareness of the media of their obligations and of their responsibility for putting up material which might amount to a contempt. This part of the internet order also cannot stand.

There remains, therefore, no order restraining the applicants from restoring the pre-25 August 2009 articles onto their websites. This raises two further issues that must be considered by this Court. First, re-uploading the articles may impart to them a prejudicial character they originally lacked, particularly if this judgment receives some publicity. Second, posting these articles to the websites in question may constitute, in the case of some of them, a fresh contempt of court.

We have considered whether the effect of both issues would be to require the continuing suppression of all or part of the pre-25 August 2009 articles. We do not think so. The decision whether to put up on their websites any or all of these articles is, after all, a matter for the applicants themselves. Their decision will doubtless have regard to their commercial interest in posting material which is, after all, of historic interest, and also to their legal obligations as responsible media entities in an environment where there are pending criminal proceedings against Mr Mokbel. If the Director of Public Prosecutions thinks it advisable to seek a fresh order to protect these proceedings, he may approach the judge appointed to hear these trials. For the reasons which we have set out at length, the trial judge is in the best position to deal with the issues involved if such an application were to be made.

We would, therefore, grant leave to appeal against the internet order made on 21 August 2009 only. Leave to appeal with respect to the suppression orders of 10 August 2009 and 25 August 2009 should be refused. We would allow the appeal and set aside the order of the trial judge made on 21 August 2009.

BUCHANAN JA:

This application is a challenge to orders suppressing the publication of material relating to the first-named respondent. The first order suppressed publication of material from a trial of the first-named respondent on a charge of murder and material associating the first-named respondent with the manufacture or trafficking in drugs and the recent gangland wars. The second order required the applicants to remove from their websites articles referring to the first-named respondent. The orders were made for the purpose of securing the fair trial of the first-named respondent on pending charges of drug offences.

For the last few years Melbourne has experienced a series of gangland killings, which have been widely reported in the media. One of the victims was Lewis Moran, who was shot dead in a hotel in Brunswick. The first-named respondent was tried on a charge of murdering Moran.

The trials

The trial of the first-named respondent commenced on 25 August 2009. The Crown case was that the first-named respondent, together with one Carl Williams, counselled and procured XP to murder Moran. The evidence was that XP, a lifelong criminal, Noel Faure and one Evangelos Goussis drove to the Brunswick hotel. While XP remained with the car, Goussis and Noel Faure entered the club. Noel Faure stood guard at the door, while Goussis was said to have approached Moran, who was drinking at the club with a friend, Herbert Wrout. Goussis chased Moran, who sought to flee from the scene, and fatally shot him at close range. In the meantime, Noel Faure shot and seriously wounded Wrout. The three men then made their escape. XP was charged with murdering Moran. Faure pleaded guilty to the murder of Moran and was the principal witness in the trial. The trial concluded on 25 September 2009 with the acquittal of the first-named respondent.

The first-named respondent has been the subject of a number of media reports implicating him in manufacturing, importing and trafficking in drugs. In particular, a great deal of publicity was given to the fact that the first-named respondent absconded while on bail in the course of his trial in the Supreme Court on a charge of importing cocaine. The trial continued notwithstanding the absence of the first-named respondent. He was found guilty and sentenced to be imprisoned for a term of 12 years with a minimum term of nine years’ imprisonment. A warrant was issued for the apprehension of the first-named respondent. He was arrested in Greece on 5 June 2007. The Attorney-General applied for and obtained an extradition order from an Athens Court. An appeal to the Supreme Court of Greece failed and the first-named respondent was brought back to Australia.

Five further trials of the first-named respondent are proposed. The trials concern various drug offences. The charges to be tried in the five trials are inciting the importation of a commercial quantity of ecstasy, two charges of trafficking in a large commercial quantity of methylamphetamine, trafficking and conspiring to traffic a large commercial quantity of ecstasy, and conspiring to traffic in a commercial quantity of methylamphetamine.

The suppression orders

On 10 August 2009 the judge presiding over the murder trial ordered that until further order publication was prohibited of any material whatsoever containing any reference to:

(i)forthcoming committal proceedings concerning Antonious Mokbel as accused or co-accused;
(ii)forthcoming trial proceedings concerning Mr Mokbel as accused or co-accused;
(iii)forthcoming proceedings in the Court of Appeal concerning Mr Mokbel.

and any material stating that Mr Mokbel:
(i) has any previous criminal convictions;
(ii) has been charged with any criminal offence;
(iii)has been involved in, or associated with, the manufacture or trafficking, of drugs;
(iv)has been involved in, or associated with the killing of any person;
(v)has been involved in, or associated with the ‘gangland’ or the ‘underworld’;

(vi) has been associated or connected with Carl Williams.

On 21 August 2009, the trial judge ordered that until further order the applicants remove from their websites and not publish any articles containing any reference to Mokbel by 4 pm on 25 August 2009. On 25 August 2009 his Honour ordered that publication of the trial by any means whatsoever be prohibited and prohibited publication of the making of the order or its contents save for such publication as might be necessary to permit notification of the order by an officer of the Court to media outlets.

The applicants seek leave to appeal against the foregoing orders. The applicants concede that the orders were made in interlocutory applications within the meaning of s 17A(4)(b) of the Supreme Court Act1986 (Vic) (‘the Act’).

Whether an appeal lies from the orders

A threshold question is whether the application is competent. Section 17(2) of the Act provides for an appeal to the Court of Appeal from any determination of a judge in the trial division. That provision is subject to s 17A(3) which provides:

Except as provided in Part VI of the Crimes Act 1958, an appeal does not lie from the determination of the Trial Division constituted by a Judge of the Court or constituted by an Associate Judge made on or in relation to the trial or proposed trial of a person on indictment or presentment.

The first-named respondent contends that this application does concern an appeal from a determination made on or in relation to the trial or proposed trial of a person on indictment or presentment. It is common ground that, if leave is granted, the appeal will not be brought pursuant to the provisions of Part VI of the Crimes Act, which is concerned with appeals against convictions and sentences.

Two cases in this Court stand in the way of the position adopted by the first-named respondent. The first case, TheHerald & Weekly Times Pty Ltd v [A][78] concerned a suppression order prohibiting publication of certain matters about an accused. It was held that the order did not amount to a determination made on or in relation to a trial or proposed trial. The Court reached that conclusion by reference to considerations recognised in England as providing guidance as to whether a matter related to trial on indictment within the meaning of a provision of an Act of the United Kingdom.[79] The factors considered by the Court were whether the decision affected the conduct of the trial, whether the order was an integral part of the trial process, and whether the decision was one arising in issue between the Crown and the accused formulated by the indictment. It was held that the suppression order was not closely related to the trial in the sense in which an order to provide legal assistance for a trial or an order staying a trial is related to it. It was also held that the subject matter of the determination was not an integral part of the trial process and did not arise in issue between the Crown and the accused formulated by the presentment. The Court said that the order lacked the direct nexus with the proposed trial which the phrase ‘in relation to’ required.
[78](2005) 160 A Crim R 299.
[79]See Re Smalley [1985] AC 622, 643-4; Re Sampson [1987] 1 WLR 194, 196; Re Ashton [1994] 1 AC 9, 20.

In the second case, General Television Corporation Pty Ltd v Director of Public Prosecutions,[80] the Court decided that a suppression order prohibiting the publication of the television programme ‘Underbelly’ until after the trial of an accused man was not a determination caught by s 17A(3).
[80](2008) 19 VR 68.

Counsel for the first-named respondent submitted that the orders in the present case were an integral part of the trial process. He relied upon the facts that when the orders were made, the trial of the first-named respondent on the charge of murder was imminent, as was the first drug trial, the submissions concerning the making of the orders and the first suppression order and the internet order were made together with various other pre-trial applications and submissions concerning the conduct of the murder trial, the first suppression order was made for the purpose of ensuring that the murder trial of the first-named respondent was a fair trial, and that the proposed drug trials were fair trials, the internet order was made for the purpose of ensuring that the first-named respondent’s right to a fair trial in each of the six proceedings was not prejudiced, the second suppression order was made for the purpose of protecting the integrity of the trial of the first-named respondent and the second suppression order was made during the process of taking excuses from persons on the jury panel who were seeking to be excused for jury service on the trial.

In my opinion, the question whether the trial judge’s determination was made on or in relation to the trial of the first-named respondent does not depend upon the proximity of the determination to other hearings concerning the trial or that the purpose of the determination was to preserve the integrity of the trial. In Smith v R[81] the High Court said that the purpose of s 17A(3) was to avoid the fragmentation of criminal trials by appeals brought from rulings before or during the course of a trial. This appeal does not have that affect. The determination from which the appeal is brought is not concerned with the conduct of the trial or the positions of the protagonists in the trial.
[81](1994) 181 CLR 338.

Counsel for the first-named respondent submitted that the orders the subject matter of this appeal did not apply to the world at large and that circumstance served to distinguish the decision in The Herald & Weekly Times Pty Ltd v A. While Maxwell P and Nettle JA did say in that case that the order with which they were concerned was directed to the world at large, in my opinion that circumstance was not a necessary part of the decision. Whether the order in the present case was directed to the world at large or to particular persons, the determination was not made on or in relation to a trial or proposed trial.

The inherent power of the Court

The applicants contend that the order relating to their websites and that part of the order made on 10 August 2009 suppressing material relating to the first-named respondent’s past conduct depend upon the existence of an inherent power in the Court. It was submitted that those orders are not justified by s 18(1) of the Act, which provides, so far as is presently relevant:

18(1) The Court may in the circumstances mentioned in section 19 –
…
(c)make an order prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding.

In my view, the applicant’s contention is correct. The section did not authorise orders suppressing publication of material relating to the first-named respondent which was not derived from his trial.

The next step in the applicants’ argument is that the Supreme Court’s inherent power does not extend to permit the making of the trial judge’s orders. Counsel for the applicants submitted that the Supreme Court has inherent power to prevent an abuse of the Court’s process and in particular to take steps to ensure that the accused person receive a fair trial, but that the power is limited to making orders directed to the parties to a proceeding. The Court cannot, so it was said, make orders directed to non-participants in a court proceeding or orders that operate outside the Court.

The applicants faced the obstacle posed by the decision of this Court in General Television Corporation Pty Ltd v Director of Public Prosecutions,[82] where it was held that the Supreme Court did have inherent jurisdiction to make an order prohibiting the transmission and publication by television of a series dramatising the recent gangland war in Melbourne until the completion of a trial of a person accused on a charge of murder of one of the victims of the war. The television company contended that a suppression order was essentially a matter between the court and the parties before it. It was argued that an application for an injunction to restrain an apprehended contempt of court was an application for a remedy directed at particular persons and was governed by the rules of evidence in the procedures of the court relating to such an application. The Court held that its power was not circumscribed so narrowly. The Court had inherent jurisdiction to make appropriate orders to ensure the right described by Deane J in Hinch v Attorney-General[83] in these terms:

The right to a fair and unprejudiced trial is an essential safeguard of the liberty of the individual under the law. The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraints and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law.

[82](2008) 19 VR 68. See also Ex parte Queensland Law Society Incorporated [1984] 1 Qd R 166, 170 (McPherson J); Re a Former Officer of ASIO [1987] VR 875, 876 (Brooking J); Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267, 280 (Hedigan J).

[83](1987) 164 CLR 15, 58.

The applicants relied upon the existence of ss 18 and 19 of the Act and certain New South Wales decisions in contending that General Television Corporation Pty Ltd v Director of Public Prosecutions should not be followed.

It appears from the Minister’s second reading speech for the bill which introduced ss 18 and 19, that the provisions were intended to overcome shortcomings in s 29 of the Supreme Court Act 1958 rather than to supply a power that was lacking. Nor does it appear that the provisions were intended to cover the field of the suppression orders that can be made by the Supreme Court. On 10 October 1985 the Chief Justice’s Law Reform Committee adopted a report by a sub-committee, which said that doubt attended the existence of an inherent power to suppress accounts of court proceedings. Counsel for the applicants also relied upon Doyle v The Commonwealth.[84] In that case the High Court said that when a power was expressly conferred on the court subject to a condition, a judge could not, by relying on inherent powers, escape from a necessity of ensuring that the condition had been fulfilled. That is not this case.
[84](1985) 156 CLR 510.

In my opinion, the Court’s inherent power to suppress publicity in order to provide a fair trial is not displaced by ss 18 and 19 of the Act.

Counsel for the applicants submitted that two decisions of the New South Wales Court of Appeal demonstrated that the Supreme Court did not possess inherent power to make orders for the protection of the integrity of court proceedings directed to persons who were not parties to the proceedings.

In John Fairfax & Sons Ltd v Police Tribunal of New South Wales[85] the Court was concerned with an order made by the Police Tribunal forbidding the publication of the name of a police informer or of material that would identify him or his place of abode. It was held that the order was invalid. Mahoney JA said that the order went further than was necessary to secure the administration of justice in the proceeding because the order prevented the publication of the informant’s name and his place of abode without reference to the suggestion that he was, in the proceedings before the Tribunal, a police informer. His Honour said that it was not necessary to consider whether the Tribunal had the inherent powers of a superior court. McHugh JA, with whom Glass JA agreed, said that the order was simply designed to protect a person who was not a party or witness from the perceived effects of evidence given publicly in the Tribunal and was not designed to protect that person as a witness before the Tribunal or to ensure that other evidence given before the Tribunal was not influenced by the allegation that he was an informer. Accordingly, the order was in excess of any power which the Tribunal might have had to protect its proceedings.
[85](1986) 5 NSWLR 465.

In Attorney-General v Mayas Pty Ltd,[86] the Court dismissed a summons alleging contempt of court by a reporter in publishing the name of a complainant to a charge of sexual intercourse without consent where a magistrate had, in the course of committal proceedings, made a non-publication order in respect of the name of the complainant. The summons was dismissed because the reporter was unaware of the order. It was not sufficient that the reporter had the means or opportunity of knowing of the order. Counsel for the applicants in the present case relied upon dicta by McHugh JA, who said:

Courts have general authority to make orders binding on the parties, witnesses and other persons present in the courtroom. But they have no general authority to make orders binding on persons unconnected with the proceedings before them … 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.

[86](1988) 14 NSWLR 342.

The decisions relied upon by the applicants were not concerned with the scope of the inherent powers of superior courts and the ratio decidendi of neither case establishes the proposition for which the applicants in the present case contend, denying the Supreme Court the power to make the orders now in question.

Counsel for the applicants referred to other decisions which demonstrate the concern of courts to guard our system of open justice and the care with which they scrutinise orders suppressing publication of court proceedings.[87] While there are judicial statements exemplifying that concern and care, counsel for the applicants could not cite authority which limited the inherent power of a superior court to make an order which was necessary to preserve the right of a litigant to a fair trial. I would not accept that the Court cannot make orders necessary to ensure a fair trial, for it is a fundamental principle that the chief object of courts of justice must be to secure that justice is done.[88] In my opinion there is an inherent power in the Court to make the orders the applicants seek to impugn.[89]
[87]See Independent Publishing Co v Attorney-General of Trinidad and Tobago [2005] AC 190, 213-6; John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344, 364, 366-7; Jago v District Court of New South Wales (1989) 168 CLR 23, 25, 31-2 (Mason CJ), 46-7 (Brennan J); Re S (a child) [2005] 1 AC 593, [28], [30] (Lord Steyn).
[88]Scott v Scott [1913] AC 417, 437 (Lord Haldane).
[89]Jurisdiction may also be conferred by the Court’s power to enjoin a threatened contempt of the Court. See s 37 of the Act.

For present purposes it may be assumed that the Supreme Court cannot make orders binding upon the world at large.[90] Even if orders directly bind only the parties, a suppression order not in terms directed to anyone in particular does in effect bind those who receive notice of the orders in that ‘if the ruling was necessary in the interests of justice and it would be apparent to anyone who knew of it that the ruling would be frustrated by an act outside the court, the act would be a contempt’.[91]
[90]The Herald and Weekly Times Pty Ltd v A (2005) 160 A Crim R 299, 303 (Maxwell P and Nettle JA); General Television Corporation Pty Ltd v DPP (2008) 19 VR 68, 77 (Warren CJ, Vincent and Kellam JJA); Attorney-General v Leveller Magazine Ltd [1979] AC 440, 451-2 (Lord Diplock); Cf Taylor v Attorney-General [1975] 2 NZLR 675.
[91]John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 479 (McHugh JA); A v Savvas (1989) 43 A Crim R 331, 334-5 (Hunt J).

The utility of the internet order

Counsel for the applicants contended that the order requiring the applicants to remove material relating to the first-named respondent from their websites was of no utility. The same material still appears on other websites. It is accessible by using the search engine Google, which, evidence disclosed, is used by an overwhelming number of those engaged in searching for material on the internet. The effect of removing the articles from the applicants’ websites was to promote articles from other, for the most part less reliable, websites in the order revealed by a Google search. The original articles were cached and were accessible by an informed user of the internet.

I consider that the manner in which the internet functions and stores information might well dissuade a judge from ordering the removal of articles from a media website. The reinstatement of the articles, however, is a different matter. The Court should, I think, do what it can to prevent or curtail any threat to the first-named respondent’s right to a fair trial. The material so far published relating to the first-named respondent has been sensational, calculated to provoke public comment and debate, and paints an adverse picture of the first-named respondent as a man who has committed drug offences as a way of life. To give a new lease of life to material on the applicants’ websites, which are generally viewed as relatively reliable and accurate, sensibly increases the risk of prejudice to the first-named respondent’s right to a fair trial. I do not think that an order should be made as a gesture, simply marking the Court’s displeasure, without effecting any other consequences. In the present case, however, I consider that the trial judge was warranted in perceiving a real risk of prejudice to the first-named respondent’s right to a fair trial, which the internet order met.

Accordingly, I would not set aside the order that the applicants remove the material from their websites.

In the forthcoming trials it is to be anticipated that the jurors will be instructed to base their verdicts solely upon the evidence admitted in the trials and to ignore any opinion, articles and rumour which they may have seen or heard. It is assumed that jurors do obey directions by trial judges and decide cases by reference to only legally admissible evidence. As Kirby ACJ said in Yuill v R:[92]

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 the Court … 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.[93]

[92](1993) 69 A Crim R 450, 453-4.

[93]See also Gilbert v R (2000) 201 CLR 415, 425 (McHugh J); Montgomery v HM Advocate [2003] 1 AC 641, 673 (Lord Hope); Glennon v R (1992) 173 CLR 592, 614 (Brennan J); R v Dupas (No 2) (2005) 12 VR 581, 615-6 (Warren CJ).

Nevertheless, in my opinion the cumulative effect of the blitz of publicity of the type hitherto given to the first-named respondent given impetus by the publication of fresh material carries the risk of prejudicing the minds of jurors, and in my view that risk warrants the orders made by the trial judge.

In this connection I note an argument advanced on behalf of the applicants that the trial judge erred in mistaking the test to be applied. The power to make suppression orders is limited to those orders which are necessary to secure the object of ensuring that justice is done in a proceeding. An order is only necessary if there is

a real or substantial risk of prejudice to a fair trial if an order is not made.[94] Counsel for the applicants submitted that the trial judge applied a diluted test, for his Honour said:
Whilst, as I say, it is perhaps a matter of speculation ultimately whether a potential juror might access the websites, nonetheless, in my view there is a risk that might occur and for the test of necessity, in my view, given the standing of each of these organisations, the court should not countenance the coming to pass of that risk unless it is inutile to do so …

And again:
[U]ltimately I do not think it is right for this court to surrender its obligation to do what it can to protect the right of litigants and accused people before it to a fair trial.

[94]See The Herald and Weekly Times Pty Ltd v [A] (2005) 160 A Crim R 299, 304, 306; Friedrich v Herald and Weekly Times Ltd [1990] VR 995, 1005; Re applications by Chief Commissioner of Police (Vic) for leave to appeal (2004) 9 VR 275; Scott v Scott [1913] AC 417, 437-8 (Lord Haldane); John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476-7 (McHugh J).

In my opinion, the trial judge did not err. There could be no doubt that the material the subject matter of the orders was prejudicial to the first-named respondent. The material already published had been sensational and its publication had been widespread and intensive. I do not consider that the chance that a juror may not have gained access to the applicants’ websites removed the necessity of taking all reasonable steps to ensure a fair trial by suppressing material which in practical terms announced the first-respondent’s guilt of the crimes with which he was charged. His Honour reasonably believed the orders to be necessary in order to serve the ends of justice.[95]
[95]Attorney-General v Leveller Magazine Ltd, above, 450 (Lord Diplock).

For the foregoing reasons, I would dismiss the application for leave to appeal.

[2010] VSCA 51

18 March 2010