R v Alex

[2024] NSWSC 129

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Alex & Ors [2024] NSWSC 129

Hearing dates:

12 February 2024

Date of orders:

20 February 2024

Decision date:

20 February 2024

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

Notice of motion for take down orders dismissed.

Catchwords:

CRIMINAL PROCEDURE – non-publication order – power to make – scope of power – prejudicial information accessible on web pages – whether order “necessary” – risk of jurors searching internet contrary to directions – whether trial judge can take steps during the conduct of the trial to relieve against risk to conduct of trial.

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Jury Act 1977 (NSW)

Cases Cited:

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125

Hinch v Attorney-General (Vic) (No 2) [1987] HCA 56; (1987) 164 CLR 15

The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592

AW v R [2016] NSWCCA 227

Category:

Procedural rulings

Parties:

Rex
George Alex
Lindsay Kirschberg
Gordon McAndrew
Pasquale Loccisano
Mark Bryers
Arthur Alex

Representation:

Counsel
C O’Donnell SC with H Mann B Anniwell and R O’Donnell - Crown
J Agius SC with E Belijic - Accused George Alex
M Breeze with Ms Edwards - Accused Kirschberg
D Price - Accused McAndrew
M Pickin - Accused Loccisano
L Brasch - Accused Bryers
M Burke - Accused Arthur Alex

Solicitors
Solicitor for the Commonwealth DPP
Matouk Joyner Lawyers - Accused George Alex
Birchgrove Legal - Accused Kirschberg
McGirr & Associates - Accused McAndrew
Kingston Fox - Accused Loccisano
Nyman Gibson Miralis - Accused Bryers
Matouk Joyner Lawyers - Accused Arthur Alex

File Number(s):

2020/216740; 2020/213439; 2020/210570; 2020/212593; 2020/210541; 2020/210516

Publication restriction:

Publication to be restricted until return of verdicts in the trial of George Alex and five others (commenced on 12 February 2024) or until discharge of the jury without verdict (unless a re-trial is fixed).

JUDGMENT

1. On 8 February 2024 George Alex (the applicant) filed a notice of motion claiming the following orders:

1 Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) and upon the ground specified in s 8(1)(a) of that Act, there be a non-publication order prohibiting the publication of articles referred to in the [supporting affidavit].

2 Pursuant to s 11 of the Act, the order applies to the publication of information in the State of New South Wales.

3 Pursuant to s 12 of the Act, the orders in paragraphs 1-2 will remain in force until the jury in the trial of George Alex are discharged.

2. The proposed order (1) may be referred to as a “take down order”. The articles referred to are listed in a schedule to the supporting affidavit. There 116 of them, on websites maintained by 17 separate media organisations. Some of the media organisations are in common ownership. The dates of original publication of the articles range between 10 March 2013 and 21 April 2023. Most of the articles date from 2014-2016 inclusive.

3. The trial of the applicant on two counts of conspiracy commenced on 12 February 2024. Five co-accused are on trial with him. The trial date was fixed on 24 May 2023 and confirmed on 21 July 2023. A fixture for earlier in that year had to be vacated because of delays in the Crown’s preparation and in its service of documents on defence representatives.

4. The alleged conspiracies are said to have concerned certain companies that paid wages to building industry workers, whose services were provided to construction contractors under labour hire arrangements. It is alleged that the companies failed to remit to the Australian Taxation Office income tax that was required to be withheld from the workers under Pay As You Go (“PAYG”) provisions of Schedule 1 to the Taxation Administration Act 1953 (Cth). The first count is a conspiracy to cause loss to the Commonwealth; the second is a conspiracy to deal with proceeds of crime. It is alleged that the conspiracies were on foot and that their objects were carried out over a little more than two years, between 1 July 2018 and 21 July 2020.

5. As opened by prosecuting counsel, the Crown case will include documentary evidence of a very large number of banking transactions, numerous charts of complex relationships and funds flows between corporate entities and 130 hours of conversations between the six accused and others. The conversations were intercepted on the telephone system or by electronic surveillance devices. The Crown estimates a trial duration of at least six months. Extra jurors have been empanelled, to the limit permissible under the Jury Act 1977 (NSW), as a hedge against the possible need for individual discharges during such a long trial.

6. The articles that the applicant seeks to have taken down have been located on the World Wide Web, by his solicitors carrying out searches for his name and for other search terms. In many of the articles located by that means the applicant’s name appears in the headline and/or prominently in the content. A number of the articles contain assertions that he is associated with named individuals who are reported, either in the articles themselves or widely elsewhere, to be convicted criminals or alleged criminals. Some of the articles report allegations of corrupt conduct by the applicant in relation to the building industry, including allegations of paying or offering bribes to unions and allegations that he has threatened violence and/or procured others to threaten or carry out violent acts. A significant part of the adverse material draws upon questioning that took place and allegations that were made before the Royal Commission into Trade Union Governance and Corruption. The Royal Commission conducted its inquiry in 2014-2015. The applicant gave evidence in the Royal Commission’s hearings.

7. The following are relevant extracts of the sections of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”) pursuant to which the take down order is sought:

7 Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of—

(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b) information that comprises evidence, or information about evidence, given in proceedings before the court.

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds—

(a) the order is necessary to prevent prejudice to the proper administration of justice,

[…]

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

8. The applicant’s counsel submitted in writing that the following considerations would justify the Court making the proposed order:

1. The articles are said to be “sensationalist”, describing the applicant in “an exceptionally unfavourable light”.

2. Because of the expected length of the trial, there is a heightened risk that one or more of the jurors will seek information concerning the accused or the subject matter of the trial, by searching on the internet in breach of s 68C of the Jury Act and in disregard of the instructions they have been given from the bench.

3. If a juror should misconduct himself or herself by undertaking internet searches and if in consequence it should be found necessary to discharge the whole jury, the cost and other consequences for the accused, for the prosecution and for the Court could be extremely serious, particularly if such an event should occur some months into the trial.

4. The order is sought in respect of nominated articles that can be found at specified URLs. There is thus no uncertainty in the field of operation of the proposed order and there should be no difficulty about compliance.

9. Point (1) was elaborated in oral submissions with reference to some of the impugned internet material. I have viewed a significant sample of the articles, sufficient to be in a position to accept that they include clear imputations, in strong terms, that the applicant has acted dishonestly and corruptly in the building industry, that he has done so in concert with others who are referred to in some of the articles as gang members and that he is an “underworld figure” with close connections to people who are known to be or are asserted to be criminals.

10. In oral argument with respect to point (2), counsel submitted that the risk of a juror undertaking an internet search and thereby finding some of the damaging articles is increased by circumstances peculiar to this case, namely, the ease with which the articles can be located, the length of the trial over which jurors may be tempted to disregard s 68C and my directions and the fact that the subject matter of the trial is likely to be outside the common experience of jury members so that pursuit of information on the internet would be more than usually attractive. Counsel submitted that, despite the courts’ general confidence that juries will obey directions, nevertheless reported decisions show that this expectation is from time to time disappointed.

11. Counsel submitted that it is not incumbent upon the applicant to demonstrate that the take down order would be efficacious to the extent that the 116 articles to which it is directed constitute the entirety of damaging publicity accessible on the web. He submitted that the order can be justified on the basis that, by removing the nominated articles, the risk of adverse material being found by any juror who might undertake a search, contrary to s 68C and my direction, can be significantly reduced.

12. The applicant’s solicitors served the notice of motion and supporting affidavit on the media proprietors who control all but one of the websites on which the impugned articles can be found. Mr Lewis of counsel appeared on behalf of those proprietors, to oppose the orders sought.

Limits of the Court’s power: necessity under s 8(1)(a)

13. The articles that the applicant seeks to have taken down are continuously published so long as they remain accessible on the internet. The order under appeal in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 likewise concerned material on the internet but it was expressed in terms much more sweeping than the order sought in the notice of motion before me. In that case Basten JA (Bathurst CJ and Whealy JA agreeing) considered two distinct fields in which orders to “prohibit or restrict … publication or other disclosure” may be made under s 7 of the Court Suppression and Non-Publication Orders Act, as follows:

[33] Section 7 has the potential to deal with two quite separate categories of information. One is information the publication of which could give rise to a charge of contempt of court under the sub judice principle, that is publication of material that has a tendency to influence the conduct or outcome of particular legal proceedings. The second category is that which is revealed in the course of proceedings, non-publication of which may be necessary for one of a number of reasons, but the consequence of which will be a degree of interference with the principle that proceedings should be conducted in open court.

14. Like the order considered in that case, the order now claimed by the applicant falls into the first category. The only connection with court proceedings of the articles that the applicant seeks to have taken down lies in their capacity to affect the current trial. The objective of safeguarding the public interest in open justice, as provided for in s 6 of the Act, is not relevant. The trial will be conducted in open court and may be reported upon in mass media. No party has suggested otherwise.

15. Of the several grounds listed in s 8(1) of the Act, only par (a) is capable of supporting an order directed to “the protection of the jury from inflammatory or irrelevant material while the proceedings are on foot (the ‘sub judice principle’)”: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim at [36]. Basten JA’s judgment in that case includes the following statements of general principle about what would satisfy the criterion “necessary to prevent prejudice to the proper administration of justice” in s 8(1)(a).

(c) Meaning of “necessary”

[…]

[46] The meaning of "necessary" depends on the context in which it is used. In s 8(1), it is used in relation to an order of the court, or, in practical terms, a proposed order, because it identifies a standard as to which the court must be satisfied before making an order. […] In paragraph (a), the purpose of the order will be "to prevent prejudice to the proper administration of justice". That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree: the proposed order may diminish a risk of prejudice or it may obviate the risk entirely. All of these variables may affect what is considered "necessary" in particular circumstances.

[…]

[51]   Because the orders in the present case do not fall within the [category of prohibiting publication of material disclosed in court] they do not involve any constraint upon the principle of open justice; they do not impinge in any way on the rights of the applicants to publish what may happen at the trial. Rather they are limited to the pre-trial (and on-going) publication of material having a tendency to interfere with the fairness of the anticipated trial. An order designed to protect the proper administration of justice, without impinging upon the principle of open justice, may well be considered necessary so long as it is reasonably appropriate and adapted to achieve its perceived purpose. [Citations omitted].

The holding in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim

16. Mr Lewis on behalf of the media proprietors has sought to rely upon Basten JA’s judgment in the Ibrahim case to an extent that makes it necessary to refer to the decision in some detail. The District Court trial judge’s order that was under appeal is set out at [11]. It was to the effect that “there is to be no disclosure, dissemination or provision of access” to members of the public by any means, including “by means of the internet” of material containing reference to other criminal proceedings against the accused or allegations against him. The order restrained such disclosure or publication “within the Commonwealth of Australia”. It was not limited to continuing publication of specified articles, in contrast with the order sought in the present proceedings. It was not directed to named or otherwise identifiable persons who were in control of websites where potentially infringing content might be accessible.

17. The ultimate holding of the Court of Criminal Appeal was that the order was not “necessary to prevent prejudice to the proper administration of justice”, as required by s 8(1)(a), and was beyond the power conferred on the District Court by the Act. Basten JA’s conclusions directly supporting that outcome are as follows:

Conclusions

[…]

[98]   An order under the Suppression Orders Act should be in a form which would be appropriate in the inherent jurisdiction of the Supreme Court, to prevent an apprehended breach of the sub judice principle. Further, the test of necessity will not usually be satisfied unless a request has been made to the parties thought to be in breach to remove the offending material and who, after a reasonable opportunity, have failed, or have indicated they do not intend, to take that step.

[99]   The State law constrains the circumstances in which and the form of order which can be made: the order must be "necessary" to prevent prejudice to the proper administration of justice. For an order to be necessary, the general law principles of sub judice contempt must be thought, in particular circumstances, to be inadequate in themselves. That may be because there is a dispute between one or more of the parties to the criminal proceedings and the publisher as to whether the material has the offending tendency. Other forms of dispute could be envisaged: for example, a dispute as to whether a particular publisher has the legal authority to remove material identified on a particular web site.

[100]   Similarly, a view must be formed that potential jurors may obtain access to such material, if not removed, or that empanelled jurors may be disinclined to accept directions, backed by criminal sanctions, not to seek access to such material. Absent some basis for considering that a specific order is necessary in support of the general law principle, there would be no necessity for such an order.

[101]   It is not necessary for present purposes to consider the extent to which a pre-emptive order could be made in respect of a proposed publication or in respect of identified material which is available for public access and under the control of a specific individual. The present order is generic in effect, refers to no specific material, nor to any identified web site or controller. If invalid because beyond the power conferred by s 8, no party suggested it could be severed in part, so as to leave a valid order.

[102] Section 109 of the Constitution prevents the Suppression Orders Act supporting an order directed to an internet content host which is not aware of the material to which the order refers at the time it is made. Nor can it support an order requiring such a host to monitor or make inquiry about the content of such material.

[103]   It follows that Order 3 made by the trial judge on 26 March 2012 was beyond the power conferred on the District Court by Part 2 of the Suppression Orders Act.

18. The requirement expressed in the first sentence of [98] is to be understood in light of the general law of contempt so far as it concerns publication of material that may prejudice the administration of justice. Deane J’s summary of the law in Hinch v Attorney-General (Vic) (No 2) [1987] HCA 56; (1987) 164 CLR 15 at pp 46-47 is sufficient for present purposes, as follows:

The publication of material in circumstances where the clear tendency of the publication is to preclude or prejudice the fair and effective administration of justice in particular pending legal proceedings constitutes contempt of court unless, as a matter of weighing competing public interests, the detriment of the possibility of prejudice to the administration of justice is outweighed by other identified factors such as the public interest served by freedom of discussion of matters of public importance and by the exposure of public dangers and abuses (Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25; Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242, at pp 249-250). While the act of publication must be intentional, an intention or purpose of prejudicing the due administration of justice is not an essential ingredient of this type of contempt of court (John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351, at p 371). The "critical question is whether the act is likely to have that effect, but the intention with which the act was done is relevant and sometimes important" (per Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ, Lane v Registrar of Supreme Court of NSW [1981] HCA 35; (1981) 148 CLR 245, at p 258 and see, generally, Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650, at pp 658 (Kirby P) and 673-676 (Hope JA)). Thus, a finding that the publication in fact has a clear tendency to prejudice the due administration of justice may well, particularly in the context of the criminal onus of proof […], be more readily made in a case where the conduct was engaged in for that very purpose than in a case where any such interference would be but an unintended and incidental side effect. In referring to a publication having a "clear tendency" to interfere adversely with the due administration of justice, I have intended to convey no more than that the publication must reveal such a tendency "as a matter of practical reality" (see John Fairfax & Sons Pty Ltd v McRae, at p 370). What is required is that the nature and circumstances of the publication are such that it can be plainly discerned that there is a "real and definite possibility" that it may "prejudice the administration of justice" (see Attorney-General for New South Wales v John Fairfax & Sons Ltd & Bacon (1985) 6 NSWLR 695, at pp 697-698 (Samuels JA))

19. When Basten JA said that an order under the Act should be “in a form which would be appropriate in the inherent jurisdiction of the Supreme Court to prevent an apprehended breach of the sub judice principle” he was referring to the features of a quia timet injunction that might be issued against a named alleged contemnor identifying specific material or content, publication of which would constitute the contempt. The District Court order under consideration in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim was at a level of generality that fell well short of those requirements.

The power in s 7 is not equated with the jurisdiction to restrain a contempt

20. In reliance on [93], [94] and [98] of Basten JA’s judgment, Mr Lewis submitted that because an order of the type sought by Mr Alex is in the nature of an injunction to prevent sub judice contempt, although it is sought pursuant to the statute, the following pre-requisites would have to be fulfilled:

[To] make that order your Honour would have to be satisfied that my instructing solicitor, or the companies that I represent, have sufficient knowledge that would warrant the orders being sought under the inherent power. […] Knowledge that the publications are contemptuous and that they have an inherent tendency to interfere.

21. I do not accept that submission. The principles of the law of contempt in this area do not include that the publisher must be shown to have knowledge of the relevant proceedings as a prerequisite to there being sufficient apprehension of a sub judice contempt to warrant an injunction. Further, the Court of Criminal Appeal in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim did not decide that the operation of the Courts Suppression and Non-publication Orders Act is confined to the field of the pre-existing law (as the above-quoted oral submission appeared to suggest) or that an order can only be made under s 7 of the Act if the general law under which an injunction might be granted to restrain a contempt appears insufficient to the case (as submitted by Mr Lewis in writing).

22. In a number of paragraphs of his judgment Basten JA explored the general law concerning injunctions to restrain sub judice contempt and considered the relationship between that body of law and the Act. Those parts of his Honour’s judgment do not all express settled conclusions; nor are they all essential links in a chain of reasoning that led to resolution of the case. His Honour did not hold that the requirement of being “necessary to prevent prejudice to the proper administration of justice” in s 8(1)(a) can only be satisfied if “the publications are contemptuous” and if the publishers “have sufficient knowledge that would warrant the orders being sought under the inherent power”, as put by Mr Lewis. In the subsequent decision in AW v R [2016] NSWCCA 227 the Court of Criminal Appeal referred to Basten JA’s judgment but did not recognise it as establishing any interdependence, as advanced in Mr Lewis’ submissions, between the jurisdiction conferred by the Act and the Court’s inherent jurisdiction to deal with threatened contempts.

Rejection by the publisher of a request to take down is not a prerequisite

23. The second sentence of [98] in Basten JA’s judgement follows from his Honour’s reference at [93] to the usual expectation that a party applying for a quia timet injunction under the general law should “have some basis for its fear that a particular breach of a statutory or common law right may occur”. At [94] his Honour suggested a procedure whereby the Director of Public Prosecutions could conduct an internet search, identify websites containing publicly accessible material that might compromise the fairness of a forthcoming trial and request the party in control of the site to remove the material. Although not stated in explicit terms, his Honour evidently considered that, subject to the nature of the material, if such a request were not complied with there might thereby be established a basis for an apprehension that a sub judice contempt would be committed.

24. Mr Lewis submitted that essential prerequisites for an application such as the present are that the applicant should put the relevant publishers on notice of the information that is allegedly “contemptuous and has an inherent tendency to affect the trial”; the applicant should inform the Director of Public Prosecutions (of the Commonwealth, in this case) about the material; the DPP should then make its own searches of the internet and communicate to the publishers a takedown request, with reasons. It was submitted that only if the publishers should refuse to act upon that request could an application such as the present be brought.

25. I do not accept that submission. In Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim the District Court orders were made on 28 March 2012 and the Court of Criminal Appeal handed down its decision on 13 June 2012. The report does not disclose the date when the trial was to commence but it must have been a date several months after the District Court orders were made. Basten JA’s view that a takedown order under s 7 of the Act could usually only be shown to be “necessary” if a request had first been made and refused is to be understood in the context of a timeframe that would allow for request and refusal.

26. In the present case, the applicant’s notice of motion was filed on the second last sitting day before the jury were to be empanelled, notwithstanding the age of the internet articles and the long notice of the trial date. The applicant’s timing has been disruptive and distracting, at the beginning of a six-month trial, and has not been explained or justified. However, it means that for the purpose of promptly resolving this application, relating as it does to a trial that is now underway, the question of necessity must be determined on criteria other than whether a request for takedown has first been made and refused. The unwillingness of the media organisations to remove the impugned articles from public access on the internet has been readily ascertained at the hearing of the motion. A process of consideration by the DPP, request to the media organisations for takedown and refusal by those organisations would be merely formal and procedural. It would be without utility for addressing the real substance of the question of necessity, which is whether the impugned articles have a significant capacity to cause the trial to miscarry and whether that risk is mitigated by the statutory constraints of the Jury Act and the directions of the trial judge, in accordance with which the jury will be required to perform their duty.

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim does not preclude the narrower orders presently sought

27. Mr Lewis made the following submission, said to derive from [63] of Basten JA’s judgment:

[Essentially] what the Court is being asked to do, is to restrain a future contempt and so in order to make that kind of order, it is an exercise of inherent power and that was the point that Basten JA was making at paragraph 63 of Ibrahim where his Honour explains that it would be a remarkable coincidence [scil, consequence] [if] the language of it [ie, s 7] was understood to confer upon your Honour the power to make the peremptory order against unrelated third parties. It's an exercise of inherent power concurrently with section 7.

28. Paragraph [63] of Basten JA’s must be read in the context of some preceding paragraphs, as follows:

(d) Scope of power to prevent interference

[52] Accepting that s 7 extends to allow a court (not limited to the Supreme Court) to make orders preventing threatened interference with a trial, the next inquiry is whether it extends the scope of such powers as exist in superior courts under the general law. It is therefore necessary to consider the scope of the sub judice rule.

[53]   The general law is concerned with the effects of pre-trial publicity. That focuses not on the legality or otherwise of the conduct of the publisher, but on whether the accused will be able to obtain a fair trial. Its most frequent application is to be found in proceedings for contempt of court, brought after publication. However, there are a small number of cases in which pre-publication restraints have been sought under the general law, often as an adjunct to contempt proceedings in relation to material already published [citations omitted].

[…]

[61]   One question is whether the general law permits an order which prohibits public access to existing material. In principle there is no reason to think it does not. In the unlikely event that a library holding of a past issue of a newspaper, book or magazine (perhaps containing a prejudicial story about the accused) were thought to be a threat to a fair trial, a superior court would have jurisdiction to order that there be no public access to that material until the conclusion of a trial. An order preventing access to a publication on a web site is no different in kind and would clearly fall within the scope of s 7. The circumstances of engagement of the power, contained in s 8(1)(a), also reflect the language of the general law principle.

[62]   The obligation of a juror, encapsulated in the oath or affirmation, is to "give a true verdict according to the evidence": Jury Act 1977 (NSW), s 72A. It is an offence for a juror to "make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror": s 68C(1). The words "making an inquiry" include conducting any electronic search of a database for information: s 68C(5)(b). That language extends to "causing someone else to make an inquiry": s 68C(5)(e). The standard direction given to juries at the beginning of a trial covers that negative obligation.

[63]   These provisions demonstrate the impropriety of a juror obtaining information outside the course of the trial, which might potentially affect his or her view of matters in issue during the trial. However, it does not follow that the trial judge, in exercising powers with respect to the conduct of the trial, can make peremptory orders requiring private individuals or other entities unconnected with the administration of justice to take steps to remove material from potential access by a juror. If s 7 has conferred such a power, it would be a remarkable consequence of the language employed. There is no suggestion in the New South Wales Law Reform Commission Report, Contempt by Publication, that any such power previously existed, nor that it was intended to be conferred by statute. No case was drawn to the attention of the Court where such an order had been made by a trial judge before the commencement of the Act. The language of equivalent provisions, such as s 50 of the Federal Court of Australia Act, is limited to an order "forbidding or restricting the publication of particular evidence". It is clear that s 7(a) in combination with s 8(1)(a) is capable of extending further than that, but not that it expands the powers of a superior court under the general law to prevent sub judice contempt.

[Emphasis and italics added].

29. At [61], his Honour’s reference to “an order which prohibits public access to existing material” and an “order that there be no public access to that material” and “an order preventing access to a publication on a web site” must mean an order directed to the person or entity in possession or control of the material, in a library or on a website, specifying the material and requiring that the person or entity take steps to prevent members of the public having access to it. His Honour would not have intended to suggest by this paragraph that an order could be made addressed to members of the public in general, that they should not seek access to the material. An order such as that would have similar scope to the order that had been made in the District Court and that Basten JA said was beyond the power conferred by s 7 of the Act. Subject to naming the media organisations that control the websites on which the impugned articles are accessible in the present case, the order sought by the applicant is in a form that Basten JA said (at [61]) would be permitted under the general law and that would “clearly fall within the scope of s 7”.

30. To reconcile [61] with the first highlighted sentence in the quotation of [63] set out above, that sentence must be read as referring to a generalised order, directed to all and sundry, requiring that private individuals remove material from potential access by a juror, without naming any particular private individual in possession of such material or specifying any particular item that is, at the time of the order, published on the internet or that may be so published in the future. That is the type of order, exemplified by the order under appeal in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim, that Basten JA was referring to when his Honour said, in effect, that the language of s 7 was inapt to have expanded the courts’ powers to permit the making of such a sweeping, broadly directed prohibition. That understanding of [63] of the judgment is supported by [101] (quoted at [17] above).

31. Contrary to Mr Lewis’ submission quoted at [27] above, Basten JA did not hold that the Court lacks authority under s 7 to make a “peremptory order against unrelated third parties”. (The word “peremptory” appears at [63] but his Honour may well have intended “pre-emptive”: cf [101]). What his Honour identified as beyond power was an order in the form that had been made in that case by the District Court, providing that “there is to be” no publication. As his Honour said at [63], that had the effect of “requiring private individuals or other entities unconnected with the administration of justice” to remove material from potential juror access, without naming the individuals or entities who would have to comply and without specifying the material (see [101]).

32. I also do not accept Mr Lewis’ submission that the applicant’s notice of motion seeks “an exercise of inherent power concurrently with section 7”. The applicant is simply invoking the Act. The principal judgment in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim must be read with an understanding of the very wide order that was set aside in that appeal, in contrast with the distinctly narrower order that is presently sought. Mr Alex’s proposed orders do not suffer from the overreach to which Basten JA referred in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim at [72]-[74]. He has specified the articles to which access should be denied and their URLs. The controllers of the relevant websites and content are known and the claimed order could readily be framed as directed to them by name.

Risk of interference with the trial in this case

33. When the unsustainable submissions made on behalf of the media proprietors are put aside, the question of whether the order now claimed is “necessary” turns upon the considerations nominated by Basten JA at [46], [51] and [100].

34. In the present trial, before being selected and sworn or affirmed the jurors in waiting were informed by me that if selected they would be subject to s 68C of the Jury Act. Subsection (1) of s 68C was read to them. The following are extracts from the information that was given to the panel for their consideration in determining whether they should apply to be excused if they did not think they could abide by the applicable constraints (at T 10-11):

You, as sitting jurors, would also be under a constraint not to make any inquiry about the background to the case or about things that you hear in the course of running the case, not to make any such inquiry but to listen to the evidence that is given here and decide the case on the basis of that. There is a specific provision of the Jury Act that creates an offence for not following that instruction. [Section 68C was then read]

[…] it is absolutely forbidden for sitting jurors to make inquiries on the internet about the subject matter, to make inquiries about the tax law, to make inquiries by searching against the names of the individuals who are charged or any of the witnesses. That is absolutely forbidden. And you have to consider as potential jurors in the panel now up for selection very shortly whether you would be able to abide by that because if you could not you should seek to be excused.

[The panel were reminded of the much-publicised discharge of the jury in the trial of Mr Lehrmann in the ACT Supreme Court and of the fact that that had been brought about because a juror had undertaken independent research concerning the subject matter of this case].

[…] it was necessary for her Honour to discharge the jury, not just the individual juror but the whole jury because the trial could not be seen fairly to have been conducted in circumstances where one juror had made such inquiries about evidence that was not given in the trial but came from outside and [the juror] had evidently discussed it or raised it with other jurors.

[…] I repeat that if this constraint is not observed it always emerges and then it is disastrous. There is, in fact, under section 68C, a penalty imposed for jurors who disregard this. It is a criminal offence for jurors to misconduct themselves in that way.

Now quite apart from the disastrous consequences of aborting a substantial trial like this and quite apart from the criminal sanction that is imposed for juries who disregard, I just point out to you the obvious reason for the constraint. In our system of justice a person cannot be found guilty of a crime and made amenable to punishment unless very specific allegations are levelled and brought before a jury as representatives of the community and the facts supporting the charge proved beyond reasonable doubt [to] an impartial jury, and it is essential to the fairness of that procedure that everything that the jury may consider for or against the persons who are accused should be ventilated in the courtroom in their presence.

If some piece of evidence is raised in the Court and there is something to counter it or some cross examination that may diminish its weight, all of that can be done in a courtroom. But if juries are off making their own inquiries and being influenced in their decision by things that they have researched elsewhere or heard elsewhere, then they may be making a decision on the basis of things that the accused and their counsel have never had an opportunity to consider or to meet.

It is an essential concept of fairness, and whoever are selected from amongst you to form this jury will be sitting in judgment on these six men as representatives of the community and will be required to bring to that solemn task the sense of justice of the community and what I have just mentioned is an important aspect of it.

35. Once the jury had been selected and sworn or affirmed and the accused had been put in their charge, in preliminary instructions about the course of the trial I reminded the jury in the following terms (at T 27):

Now I have explained to you when you were waiting selection the stricture that you must not undertake your own inquiries. I reiterate that. I will no doubt […] have to reiterate again from time to time just to keep it at the forefront of your mind.

36. Again, the jury were reminded at the end of the first day, upon being released for the afternoon:

Please keep in mind your obligation not to make any of your own independent inquiries and not to go discussing the matter in any degree of detail with anybody outside your own number.

37. At the end of the third day of the trial, after prosecuting counsel had been opening the Crown case for two and a half days, I returned to the subject just before releasing the jury late in the afternoon. I re-stated to the jury that it would be an offence contrary to s 68C of the Jury Act for any of them to make independent inquiries, including by search of the internet. I repeated the considerations of fairness underlying the duty to decide the case only on the evidence received in court and explained once more how non-compliance with that direction could lead to discharge of the whole jury at great cost, in terms of public finance and disruption. I added the following (at T178):

Now, the extra thing that I want to point out to you now is that you can see how much enormous detail is involved in this case, now that you have heard two and a half days of explanation of what is coming before we have come to any witnesses or the tender of any evidentiary documents. It is not impossibly complex in concept. I don't expect any of you will have a difficulty in understanding the essentials of what is alleged; on the first count, an agreement to cause companies and to set up companies and to structure payments of money so that amounts that should have been remitted to the Tax Office and gone into the revenue didn't, broadly.

In concept, simple; but in proof and in evidence, very, very voluminous as you see. And that should impress upon you that it is only by hearing all of this and having had all this carefully explained to you and then hearing the evidence to see whether it does support what is alleged in a great deal of detail and reading many documents to see if they support what is alleged and after hearing everything that can be put by way of challenge from the defence and so on, it is only after all of that that you could possibly make any sort of a sensible responsible decision about whether guilt is proved beyond reasonable doubt by the Crown or not and you couldn't possibly gain anything by making any independent research of any other source [about] any of that. It is just another consideration that should bring it home to you, the absolute necessity, with all the other things that I have mentioned, of not making any inquiry outside the four walls of this Court, hearing it all unfold, decide what you have sworn to decide on the basis of the evidence as the law requires.

38. Once more, before being released for the weekend at the end of the fifth day, the jury were briefly reminded of my earlier directions, in the following terms:

… as you are separating for the weekend, please bear particularly in mind my attempts to impress upon you the need not to make any of your own inquiries and not to discuss with other people outside your own number anything of the detail of what you are hearing about and going to decide.

39. The notice of motion now before me is to be decided on the assumption that jurors will conduct themselves in accordance with the directions of the presiding judge. That assumption was expressed by Mason CJ and Toohey J in The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592 at p 603 as follows:

The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence.

40. In that case a majority in the Full Court of the of the Victorian Supreme Court (McGarvie and Nathan JJ) had upheld the respondent’s appeal against conviction on the ground that there was a substantial risk that some members of the jury had become aware of his prior convictions as a result of pre-trial publicity. Brennan J (Dawson J agreeing) said this of the judgment of McGarvie J:

[His] Honour did not attribute any or sufficient weight to the jury's capacity and willingness especially in a lengthy or complex trial, to refuse to act on information not proved by the evidence [fn 48: A capacity which has been judicially acknowledged: Duff v The Queen [1979] FCA 83; (1979) 39 FLR 315 at pp 333-334; (1979) 28 ALR 663 at pp 677-678; A-G NSW v John Fairfax & Sons and Bacon (1985) 6 NSWLR 695 at p 711; Attorney-General v News Group Newspapers Ltd [1987] QB 1 at p 16; Hinch v Attorney-General (Vic) (1987) 164 CLR 15 per Toohey J at p 74; R v Von Einem (1991) 55 SASR 199 at p 211].

41. There have been isolated instances of jurors in this State undertaking internet research despite the trial judge’s directions and in contravention of the statutory prohibition. I accept the applicant’s submission that there is a higher chance of that occurring in a long trial, such as this is expected to be, than would be the case in a trial of normal length, occupying a few days to a few weeks. I do not consider that the nature of the charges provides any greater than usual temptation for jurors to see what they can find on the internet.

42. Removal of internet access to the articles identified in the present application would reduce the chances of a juror finding, by search, prejudicial material concerning the applicant, but it would not eliminate the possibility. It is a matter of common knowledge derived from experience of conducting internet searches that the content of news items is frequently copied, or extracted, or quoted and commented upon, resulting in the same material or derivatives of it being accessible at sites other than those of the media organisation that originally published the matter. This is not to say that the order sought would be entirely futile but I cannot be satisfied that it would be of significant utility in reducing the prospect that any improper search by a juror would bring up prejudicial results.

43. Even assuming that blocking internet access to the impugned articles may reduce the likelihood that an internet search using terms related to the applicant would produce anything capable of influencing a juror, the removal of access would not have any effect upon the likelihood that one of the jurors would make the attempt; that is, undertake a search. Searching the internet, irrespective of results, would be misconduct in breach of s 68C. The proposed take down order could not reduce the risk that such misconduct would occur and it therefore could not reduce the risk of consequent discharge of an individual juror.

44. Relevant extracts from ss 53A and 68C of the Jury Act are as follows:

53A Mandatory discharge of individual juror

(1) The court or coroner must discharge a juror if, in the course of any trial or coronial inquest—

[…]

(c) the juror has engaged in misconduct in relation to the trial or coronial inquest.

(2) In this section—

misconduct, in relation to a trial or coronial inquest, means—

(a) conduct that constitutes an offence against this Act […]

Note—

For example, under section 68C it is an offence for a juror to make certain inquiries except in the proper exercise of his or her functions as a juror.

68C Inquiries by juror about trial matters prohibited

(1) A juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror.

Maximum penalty—50 penalty units or imprisonment for 2 years, or both.

[…]

(5) For the purpose of this section, making an inquiry includes the following—

[…]

(b) conducting any research, for example, by searching an electronic database for information (such as by using the Internet),

45. The inflexibility of s 53A is unfortunate. It denies to the trial judge any discretion to retain an offending juror even if his or her searches fail to produce anything that could conceivably influence the person’s decision. It leaves no discretion in the trial judge to retain such a juror in circumstances where the judge might be confident that a suitable direction would persuade the juror that such material as he or she may have found on the web was of no relevance or no weight.

46. The catastrophic worst-case consequence of a juror finding something prejudicial to the applicant on the internet, as submitted by counsel on his behalf, is that it might be found necessary to abort the trial. However, it is by no means inevitable that that would follow. Unlike the mandatory discharge of an offending juror, the decision whether to continue to verdict with the other jurors would be a matter for the trial judge’s discretionary judgment, applying ss 22 and 53C of the Jury Act. The exercise of that discretion would depend upon such factors as the nature of the material, if any, that the improper search may have produced, the extent to which it may have been discussed or shared with other jurors, the stage of the trial, an assessment of the conscientiousness of the remaining jurors (possibly aided by questioning of them individually) and whether the circumstances would permit an effective direction to the remaining jurors to determine the issues solely on the evidence adduced in court. The question whether the takedown order is “necessary to prevent prejudice to the proper administration of justice” is not to be assessed upon the basis that, if a juror should find one or more of the identified articles, termination of the trial would inexorably follow.

47. For these reasons I am not satisfied that the ground in s 8(1)(a) of the Court Suppression and Non-Publication Orders Act is established. The following order will be entered:

The notice of motion filed by George Alex on 8 February 2024 is dismissed.

**********

Amendments

18 September 2024 - Restriction removed

Decision last updated: 18 September 2024