R v Cox (No 7)

[2005] VSC 526

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1453 of 2003

THE QUEEN

V

STEPHEN COX, GLENN SADLER, IAN FERGUSON AND JOANNE FERGUSON

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JUDGE:	KAYE J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 September 2005
DATE OF JUDGMENT:	14 September 2005
CASE MAY BE CITED AS:	R v Cox and ors (Ruling No. 7)
MEDIUM NEUTRAL CITATION:	[2005] VSC 526

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CRIMINAL LAW – Separate trials – Application by accused to prohibit publication of the proceedings in the first trial until the completion of the second trial

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Leckie, S.C. with Mr D. Brown	Office of Public Prosecutions
For the Defendant Cox	Mr B. Young	Tony Hargreaves & Partners
For the Defendant Sadler	Mr G.A. Georgiou with Ms H. Spowart	Victoria Legal Aid
For the Defendant Ian Ferguson	Mr D. O’Doherty with Ms A. Marjanovic	C. Marshall & Associates
For the Defendant Joanne Ferguson	Ms M. Tittensor	Theo Magazis & Associates

HIS HONOUR:

1           In this matter the accused, Cox and Sadler, have made application that I make an order prohibiting the publication of the proceedings in the trial against Ian and Joanne Ferguson until after verdict in the trial of Cox and Sadler.  That application is supported by the Crown.  I have already indicated that I accede to that application.  It is appropriate that I state brief reasons for doing so.

2           The accused - Cox, Sadler and Ferguson - have been charged with conspiring to traffic heroin.  On 21 July I made an order directing there be separate trials in respect of that charge so that the charge against Ian Ferguson will proceed shortly, next week, and the trial of the charge against Cox and Sadler will not proceed, it is estimated, until early next year.  A significant amount of the evidence which is to be led against Mr Ferguson will also be led in the trial of Cox and Sadler.  In addition, there are issues in the trial of Ferguson which will not arise in the trial of Cox and Sadler.  Some evidence which is admissible in the trial of Ferguson will not be admissible in the subsequent trial against Cox and Sadler.

3           The usual rule, and a longstanding rule, is that proceedings are to be heard in open court.  That is a fundamental principle of our system of justice. As part of that, the free and fair publication of those proceedings is an important element of the due administration of justice in this state and in this country.  It is recognised there is a high public interest in permitting the media to have access to proceedings and to give a full and fair report of those proceedings.

4           This case involves allegations of corruption against police officers and thus there is a particularly high public interest in the media being able to publicise the proceedings.  On the other hand, there is an equally high public interest in all accused having the opportunity to have a fair trial.  There is a particularly high public interest in me as a trial judge taking all appropriate steps to ensure that the rights of Cox and Sadler to a fair trial of the charge against them is not prejudiced by anything which emerges in the trial against Ian and Joanne Ferguson.

5           It seems clear to me in this case that, if the proceedings against Ian and Joanne Ferguson are published in the press,  there will be a significant prejudice to the interests of both Cox and Sadler in a fair trial.  Examples have already been canvassed with counsel, but they include the following.  Firstly, there will be evidence in the forthcoming trial admissible against Ferguson which is not admissible against Cox and Sadler, but which would be prejudicial to them. It was for that reason, in part, that I granted a separate trial.  The grant of that separate trial would  be undermined if that evidence were to be published in the press.

6           Secondly, there is evidence which is admissible against Ferguson which is also admissible against Cox and Sadler.  In the trial against Ferguson I would anticipate that not all of it would be challenged in so far as it would impact only on Cox and Sadler.  The publication of that evidence would provide potential jurors with a distorted impression of that evidence and would weigh the scales of justice against Cox and Sadler unfairly.

7           Thirdly, as pointed out by Mr Georgiou, who appears with Ms Spowart on behalf of Mr Sadler, there is always the risk that the media might misreport the proceedings against Ferguson.  Generally our journalists are of a high quality and do their level best to report proceedings fairly and accurately; however, errors do occur.  Evidence is only reported in part.  Editing of journalists' reports often distorts their reports and, as a result, sometimes what we  read is quite different to what has occurred in court.  That misreporting could have the capacity to quite unfairly prejudice the forthcoming trials of Cox and Sadler.

8           Finally, if the verdict in the trial against Ferguson were to be published, that verdict of course would not be admissible in evidence against Cox and Sadler, but it would be prejudicial to the interests of one or all parties in the trial of Cox and Sadler.

9           For those and other reasons, I have come to the conclusion that, unless I were to prohibit the publication of the proceedings against Ian and Joanne Ferguson until verdict in the trial of Cox and Sadler, there is a real risk that Mr Cox and Mr Sadler would not receive a fair trial.  Certainly there is a real risk that that trial might be placed in jeopardy.

10         I emphasise that it is expected that the trial of Cox and Sadler will be heard and completed well within the first half of next year, if not sooner.  Thus the prohibition that I impose is temporary and not permanent.  I recognise that it is in the public interest that, if possible, proceedings be publicised contemporaneously and not retrospectively.  However, the interests of the public in contemporaneous reports does not outweigh the high public interest in Mr Cox and Mr Sadler having a fair trial of the charges against them.

11         For those reasons I accede to the application.  I shall therefore make an order prohibiting publication of all of the proceedings against Ian and Joanne Ferguson,  including the verdict in those proceedings, until the verdict in the trial of R v Cox and Sadler or until further order. I shall also make a copy of this ruling available to the court media liaison officer so that appropriate members of the press can be notified of that order.