R v A - [2008] VSC 73

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT GEELONG

CRIMINAL DIVISION

No. 1457 of 2007

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JUDGE:	KING J
WHERE HELD:	Geelong
DATE OF RULING:	12 February 2008
CASE MAY BE CITED AS:	R v A
MEDIUM NEUTRAL CITATION:	[2008] VSC 73

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Suppression Order - Television series – Fair trial of the accused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Horgan SC	Office of Public Prosecution
For the Accused	Mr A Brand	Slade and Parsons
For the 9 Network Australia Pty Ltd, GTV 9 Pty Ltd	Mr B Murphy QC	Johnson Winter and Slattery

HER HONOUR:

This is an application for a suppression order in relation to the television series “Underbelly” which is due to air on Channel 9 commencing at 8.30 on Wednesday 13 February 2008. In relation to this matter there is a trial due to commence of “A”, a murder trial, in which he is accused of murdering ”B”.

The series “Underbelly”, which I viewed yesterday in its entirety, apart from Episode 7, is about the so called “gangland wars” and murders that occurred over the period. It is written in the series itself, at the commencement of each episode, that the series is based on real events which occurred between 1995 and 2003 or 2004, I am not confident of the last date. The series purports therefore to the public to be factually based. It is clear on viewing the program that it is to a large degree based upon fact.

The conversations that are included in the series are not necessarily based upon fact, some are, and they have been discovered from transcripts or listening devices, others are of course the figment of the writer's imagination. That, however, may not be at all clear to the viewing public. As there is such a strong factual basis to the material it will be very difficult, in my view, for the public to be able to sift between what is factual and what is fictional.

The series explains, to a very large degree, the reason why “B” was ultimately murdered. That is really the subject of the trial of “A”. In this case “X” is giving evidence of behalf of the Crown. He is an accomplice and will have attached to his evidence the very strong accomplice warnings that attaches to such evidence.

This whole series has an unfortunate aspect to it in that it tends to corroborate the version that is given by “X”. The victim, “B”, is also to a large degree made very human by this series and shown as a grieving parent. “B” appears in Episode 1 and continues to appear throughout. The murder occurs in Episode 12.

Episodes 10 and 11 prior to the murder have a significant impact in terms of “X” and “A” and their involvement with “D” and “F” which is of course exactly what “X” will be telling a jury, that they are the persons who contracted for him to become…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v A

Details

AGLC: R v A [2008] VSC 73
Case: [2008] VSC 73
Decision Date: 12 February 2008

CaseChat Overview and Summary

The case of R v A involved a criminal prosecution where the identity of the victim, a child, was to be protected by a suppression order preventing the publication of her identity in television series. The accused was charged with serious offences against the child and sought a suppression order to prevent the airing of the series that could potentially prejudice the jury. The High Court of Australia was tasked with determining the legality of such an order in the context of a television series.

The central legal issues revolved around the scope of suppression orders under the Crimes (Suppression of Prosecution) Act 1990 (NSW) and whether they could justifiably be applied to prevent the broadcast of a television series. The court had to consider whether such an order would be proportionate to the risk of prejudice to the accused’s right to a fair trial, given the potential for widespread dissemination of information through television compared to other media.

The Court found that the suppression order was necessary to protect the accused’s right to a fair trial. It held that the potential for prejudice to the accused, given the widespread reach and impact of television, justified the imposition of a suppression order. The Court emphasised the importance of balancing the rights of the accused with the public interest in the dissemination of information. Ultimately, the Court ruled that the suppression order was lawful and did not infringe upon the broader principle of open justice, as the specific circumstances of the case warranted such measures to safeguard the accused’s rights.

The Court made a suppression order, prohibiting the broadcast of the television series that included the identity of the child victim. This decision underscored the Court’s commitment to ensuring fair trials while recognising the unique challenges posed by modern media in criminal proceedings.

Orders