R v Cerantonio (Ruling No 14) - [2018] VSC 84

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0078; S CR 2017 0079
S CR 2017 0080; S CR 2017 0081
S CR 2017 0082; S CR 2017 0104

Between:

THE QUEEN

-and-

ROBERT EDWARD CERANTONIO
PAUL JAMES DACRE
ANTONINO ALFIO GRANATA
SHAYDEN JAMIL THORNE
KADIR KAYA &
MURAT KAYA

Accused
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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	25 October, 1 November & 7 December 2017
DATE OF RULING:	28 February 2018
CASE MAY BE CITED AS:	R v Cerantonio & Ors (Ruling No 14)
MEDIUM NEUTRAL CITATION:	[2018] VSC 84

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CRIMINAL LAW – Pre-trial ruling – Six men charged jointly with offence of engaging in conduct preparatory to offence of entering a foreign country with intention of engaging in a hostile activity in that country, contrary to Criminal Code (Cth), ss 119.4(1), 119.1(1) & 11.2A – Prior to trial, suppression order made in respect of certain prejudicial, but inadmissible, information concerning one of six accused – Articles containing such information, but published prior to making of suppression order, still accessible on websites of local and overseas media organisations – Application for “take-down” order directed at local media organisations to remove such articles from their websites – Whether take-down order would be futile, and therefore unnecessary, because of availability of same information on numerous other websites beyond reach of proposed order – Whether judicial directions to jury sufficient to ensure fair trial – Application (in the alternative) for declaration that existing suppression order prohibits maintenance of articles on local websites already – Meaning of “publication” – Construction of Court’s order – Applications refused – Open Courts Act 2013 (Vic), ss 3, 5(1), 17, 18, 20 & 25; News Digital Media Pty Ltd & Anor v Mokbel & Anor (2010) 30 VR 248.

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Appearances:	Counsel	Solicitors
For the Crown	Mr N Robinson QC with Ms R Sharp and Ms C Fitzgerald	Solicitor to Commonwealth Director of Public Prosecutions
For Robert Cerantonio	Mr M Cahill SC with Dr G Boas	Stary Norton Halphen Criminal Lawyers
For Paul Dacre	Mr J McMahon SC with Ms G Morgan	Slades & Parsons Criminal Lawyers
For Antonino Granata	Mr C Farrington with Mr C Terry	Patrick W Dwyer Barristers & Solicitors
For Shayden Thorne	Ms M Fox QC with Mr S Moglia	Doogue O’Brien George Barristers & Solicitors
For Kadir Kaya	Mr D Hallowes SC with Ms F Todd	Galbally & O’Bryan Defence Lawyers
For Murat Kaya	Mr D Dann QC with Mr M Goldberg	James Dowlsey & Associates Criminal Law
For: Fairfax Media Limited; and Fairfax Digital Australia & New Zealand Pty Ltd	Mr E Nekvapil with Mr P Considine	Minter Ellison Lawyers
For: The Herald & Weekly Times Pty Ltd; Nationwide News Pty Ltd; Daily Telegraph Pty Ltd; Adelaide Advertiser Pty Ltd; News Life Media Pty Ltd; Queensland Newspapers; The Australian Broadcasting Corporation; and Special Broadcasting Service	Mr T Otter	M&K Lawyers Group Pty Ltd

HIS HONOUR:

Overview

One of the…

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.

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Details

Case: [2018] VSC 84
Decision Date: 28 February 2018

CaseChat Overview and Summary

In the matter of R v Cerantonio (Ruling No 14), six men were jointly charged with the offence of engaging in conduct preparatory to entering a foreign country with the intention of engaging in a hostile activity. The case was heard in the Supreme Court of Victoria. The accused applied for a suppression order concerning certain prejudicial information regarding one of the defendants, which was deemed inadmissible but potentially prejudicial. The order was granted, but articles containing this information remained accessible on various media websites.

The legal issues before the court were whether a take-down order directed at local media organisations to remove the articles from their websites would be futile given the widespread availability of the same information on numerous other websites, and whether judicial directions to the jury would be sufficient to ensure a fair trial. The accused also sought a declaration that the existing suppression order prohibited the maintenance of the articles on local websites. The court had to consider the meaning of "publication" and the construction of the suppression order.

The court found that a take-down order would not be futile, as the continued presence of the articles on local media websites could undermine the suppression order. However, the court refused the application for a take-down order, reasoning that the suppression order and judicial directions to the jury were sufficient to ensure a fair trial. The court also held that the suppression order did not prohibit the maintenance of articles on local websites that were already published before the order was made. The court's decision was based on the Open Courts Act 2013 (Vic) and the precedent set in News Digital Media Pty Ltd & Anor v Mokbel & Anor (2010) 30 VR 248.

No further orders were made by the court in light of its findings. The accused's applications were refused, and the suppression order remained in place, with the court's directions to the jury ensuring the fairness of the trial.

Orders