R v Cerantonio (Ruling No 17)

[2018] VSC 106

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:	28 February 2018
DATE OF RULING:	7 March 2018
CASE MAY BE CITED AS:	R v Cerantonio & Ors (Ruling No 17)
MEDIUM NEUTRAL CITATION:	[2018] VSC 106

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CRIMINAL LAW – Costs – Court refused accused’s applications for “take-down” order directed at local media organisations to remove certain highly prejudicial articles about him from their websites and for declaration concerning effect of existing suppression order – Application by successful group of respondents for costs against accused – Whether costs should follow the event – Whether take-down application in nature of application for mandatory injunction – Whether take-down application foredoomed to fail – Whether relevant that take-down application concerned something other than purely private interest – Whether application for declaration provoked by the Court – Application for costs refused – R v Cerantonio & Ors (Ruling 14) [2018] VSC 84R; Supreme Court Act 1986 (Vic), s 24; News Digital Media Pty Ltd & Anor v Mokbel & Anor (2010) 30 VR 248.

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Appearances:	Counsel	Solicitors
For the Crown	Mr R Maidment QC with Ms R Sharp and Ms A Peek	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	Mr S Moglia with Ms G Connelly	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:

Introduction

1. On 28 February 2018, I refused applications by the accused Shayden Jamil Thorne for a “take-down” order directing Australian media organisations to remove from their websites articles containing certain highly prejudicial information about him.  I also refused an alternative application for a declaration that a suppression order I made on 14 June 2017 already includes a prohibition on maintaining access on Australian media websites to articles containing the same information.  I gave written reasons for those decisions.[1]

   [1]See R v Cerantonio & Ors (Ruling 14) [2018] VSC 84R. (By order made in chambers on 1 March 2018, those reasons on the substantive application, and these reasons on the costs application, are suppressed until the conclusion of the trial, whether by verdict, plea of guilty or discontinuance.)

1. One of the two groups of successful respondents to those applications – which, for convenience, might be described as the Fairfax interests (or “Fairfax”) – applied for an order directing Mr Thorne to pay its costs of the applications.  Mr Thorne opposed that application.[2]

   [2]The other group of respondents to the substantive application – which included 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 the Special Broadcasting Service – made no application for costs.

1. In my view, the application for costs should be refused.  My reasons follow.

Submissions

1. The background to this matter may be found in my reasons for ruling on the take-down application.[3]

   [3]R v Cerantonio & Ors (Ruling 14) [2018] VSC 84R.

1. Mr Nekvapil, who appeared with Mr Considine for Fairfax, made several submissions on the costs application, including the following.

1. First, Fairfax, a non-party to the criminal proceeding, was served with an application for what might be described as a mandatory injunction, and incurred costs in defending the application. It was submitted that, in those circumstances, the proviso in s 24(2) of the Supreme Court Act 1986 (Vic) has no relevance, and the Court has the general discretion to award costs.

1. Secondly, apart from one consideration, to which I shall return shortly, Mr Nekvapil submitted that there were no special circumstances to warrant a departure from the usual rule that costs follow the event.

1. Thirdly, on the contrary, despite Fairfax’s pointing out in writing to Mr Thorne’s solicitors that the application for a take-down order flew in the face of well-settled and long-standing authority, namely News Digital Media Pty Ltd & Anor v Mokbel & Anor (“Mokbel”),[4] and despite an invitation to withdraw and a warning as to an application for costs, he elected to proceed with the application.  In Fairfax’s submission, in those circumstances, indemnity costs would have been payable (but are not sought).

   [4]News Digital Media Pty Ltd & Anor v Mokbel & Anor (2010) 30 VR 248.

1. Finally, Mr Nekvapil pointed out that, while Fairfax would not usually seek its costs on an ordinary suppression order application, this case was different – because the take-down order is in the nature of a mandatory injunction and because the application was pursued in the face of well-settled and long-standing authority.

1. Mr Moglia, who appeared with Ms Connelly for Mr Thorne on the costs application (and with whom Ms Fox QC appeared on the application for the take-down order), accepted that the Court had the power and the discretion to award costs but submitted that there were three principal reasons why such an order should not be made in this case.

1. First, he submitted that, while it is true that this Court is bound by the majority decision of the Court of Appeal in Mokbel, there was no doubt – indeed, Mokbel made it clear – that this Court has the power to make a take-down order in appropriate circumstances.

1. Secondly, it was submitted that the applications were not hopeless and that, indeed, there were arguable reasons why this case should be distinguished from Mokbel on the facts.

1. Thirdly, Mr Moglia submitted that, while costs usually follow the event in civil matters, and while the application for a take-down order might be thought of as an application for a mandatory injunction, this application was brought to protect the impartiality of the jury in a criminal trial and, thereby, the accused’s rights to the presumption of innocence and a fair trial and the integrity of the Court’s own process.[5]  This, submitted Mr Moglia, was an important difference from the usual civil case where one private party is seeking a mandatory injunction against another in pursuit of a private interest, such as enforcement of rights under a contract or the like.

   [5]See, e.g., ss 24(1) and 25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Discussion

1. I turn now to just why it is that I have decided to refuse Fairfax’s application for costs.  There are three reasons.

1. First, as I understood Mr Nekvapil, he accepted that Mr Moglia’s third submission may raise a valid point of distinction between the present case and the more usual civil case.  In my respectful opinion, that concession was properly made.  If the take-down order had been made, it would have had the purpose, and hopefully the effect, of protecting the impartiality of the jury and, thereby, the accused’s rights to the presumption of innocence and a fair trial and the integrity of the Court’s process.  Thus, it is quite different from the usual civil case between private parties in that respect.

1. If there needed to be any further support for these propositions, it might be thought to be found not only in the acceptance by the majority in Mokbel of the view that a 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 the Court’s process, and in the recognition of the Court’s power to make a take-down order in appropriate circumstances, but also in their Honours’ apparent endorsement of the suggestion, by Bell J of the High Court, writing extra-judicially, that, in a case where pre-trial publicity may be an issue, the Director of Public Prosecutions or a court information officer could make requests of local media organisations to take down offending material from their websites until the trial is completed.[6]  Thus, in a sense, Mr Thorne was seeking to achieve only what might have been sought by the Director or the Court itself.  It would seem to me to be inappropriate to order him to pay Fairfax’s costs in such circumstances.

   [6]See News Digital Media Pty Ltd & Anor v Mokbel & Anor (2010) 30 VR 248 at, e.g., 271[90]-272[92] (per Warren CJ & Byrne AJA).

1. That is not to say that a media party would be precluded from seeking or obtaining a costs order on every occasion after successful opposition to an application by an accused for a take-down order.  Each case will depend on its own facts.  But it is to say that there is good reason to depart from the usual costs rule in this particular case.

1. Secondly, I accept Mr Moglia’s submission that Mr Thorne’s application for a take-down order was not hopeless.  Again, while it seems that, in view of the reasoning of the majority in Mokbel, it will be a rare case in which an accused person establishes the necessary level of utility to justify the making of a take-down order, the power of this Court to make such an order is undeniable.  Further, I accept that there were sufficient differences between the present matter and the facts of Mokbel itself to justify an argument that Mokbel should be distinguished.  For example, the order sought here was far more targeted than that which was set aside in Mokbel; it concerned a person who, unlike Mr Mokbel, was relatively unknown; and, arguably, it had more potential utility than the order made in Mokbel, because it was more targeted and would have covered all Australian media websites.  These and the other arguments urged on behalf of Mr Thorne struck me as respectable, and far from hopeless.  That I was not ultimately persuaded that these differences rendered Mokbel distinguishable does not deny that the application had some merit.  Indeed, another judge may well have found them compelling.

1. Thirdly, part of the application – and therefore part of the costs incurred by Fairfax in meeting the application – concerned an alternative argument as to whether the existing suppression order already had the effect of directing the media parties to take down various articles from their websites.  I think it is fair to say that my musings in the course of the hearing of the take-down order application were the catalyst for that argument.  While it is true that Mr Thorne’s counsel picked up the point and ran with it, so to speak, I think it would be unfair to visit upon him the costs consequences of what I thought at that time was, possibly, an important consideration, although it ended up being a bit of a damp squib.  Further, it is plain that that part of the argument was not in the nature of an application for a mandatory injunction but rather an attempt to persuade the Court that the existing suppression order had a particular effect and that, on that hypothesis, the articles in question should be taken down lest the media parties be in contempt.

Conclusion and order

1. And so it is for these reasons that I am not satisfied that it is appropriate to order that Mr Thorne pay Fairfax’s costs.

1. The order of the Court is that the application for costs is refused.

Postscript

1. Finally, I should add that, in my view, it was important for the administration of justice that the media parties appeared at and were represented by counsel on both the substantive applications and the costs application.  I was very much assisted by the submissions of all parties in these matters.

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