R v Flentjar; R v Snibson

[2007] NSWSC 1321

CITATION:	R v Flentjar; R v Snibson [2007] NSWSC 1321
HEARING DATE(S):	24/10/2007, 29/10/2007, 31/10/2007, 06/11/2007
JUDGMENT DATE :	19 November 2007
JUDGMENT OF:	Buddin J
DECISION:	Applications refused.
CATCHWORDS:	Applications for non-publication and pseudonym orders - jurisdiction to make such orders - evidence given at trial of co-accused who is to be tried separately - whether publication of that evidence may give rise to unfair prejudice to applicants - whether test of necessity satisfied
CASES CITED:	John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) 61 NSWLR 344 John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 R v Kaddour (2005) 156 A Crim R 11 R v Kanaan [2006] NSWCCA 109 SG v DPP & others [2003] NSWSC 413 SG v DPP & Ors [2003] NSWCA 128
PARTIES:	Regina Andrew Wayne Flentjar Kim Leanne Snibson
FILE NUMBER(S):	SC 2007/240; 2007/241
COUNSEL:	P Leask (Crown) J Stratton SC/P Pearsall (Flentjar) Ms J Healey (Snibson) D Sibtain (Nationwide News P/L; John Fairfax Publications P/L; Australian Broadcasting Corporation)
SOLICITORS:	S Kavanagh - Solicitor for Public Prosecutions Aboriginal Legal Service (Nowra) (Flentjar) Mark A Douglass (Nowra) (Snibson) Blake Dawson Waldron (Nationwide News P/L; John Fairfax Publications P/L; Australian Broadcasting Corporation)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

MONDAY 19 NOVEMBER 2007

2007/240 - R v ANDREW WAYNE FLENTJAR
2007/241 – R v KIM LEANNE SNIBSON

JUDGMENT – Applications for non publication orders

1 HIS HONOUR: By notice of motion Andrew Wayne Flentjar originally sought an order that “the evidence in the trial of Stacey Lea-Caton not be published until the completion of the applicant [Flentjar’s] trial”. In the alternative he sought an order “ that the applicant not be identified in any published report of the trial of Stacey Lea-Caton”.

2 By notice of motion Kim Leanne Snibson sought an order “prohibiting the publication of material that identifies the accused Kim Leanne Snibson until the completion of her trial” and an order “prohibiting the publication of evidence in the trials of co-accused Stacey Lea-Caton and Andrew Flentjar until the completion of the trial of Kim Leanne Snibson”. Mr Sibtain of counsel appeared on behalf of Nationwide News Pty Ltd, John Fairfax Publications Pty Ltd and the Australian Broadcasting Corporation to oppose the making of those orders. He also seeks that orders made before I heard full argument, prohibiting the publication of any material which might identify the two applicants, be vacated.

3 Although there has been a material change to the course the proceedings have taken since the applications were originally made, it will be necessary to briefly sketch some background details in order to put the applications into some sort of context. The Crown alleges that Lea-Caton (whom I shall refer to as the offender), Flentjar and Snibson (whom I shall refer to as the applicants), are jointly responsible for the murders of a man named Gregory Hosa and his wife Kathryn McKay at Nowra on 28 January 2006. Each of the accused is also charged with the specially aggravated form of the offence of kidnapping of the deceased persons. The Crown case in essence is that the deceased were induced to attend at premises owned by the applicant Snibson but occupied by the offender whereupon the accused proceeded to tie them up and kill them. Their bodies were subsequently transported in 44 gallon drums to a secluded place where the drums were then set on fire.

4 Some time before the trials were due to commence, the applicants foreshadowed an application to be tried separately from the offender. In due course the Crown elected to put the offender on trial separately from the applicants. Shortly after the jury was empanelled to hear his trial, the offender was, at his request, re-arraigned. He then entered pleas of guilty to all four counts in the indictment presented against him. Although I had by then had the benefit of full argument in respect of the applications to which I referred earlier, I had not ruled upon them.

5 The sentence proceedings in respect of the offender then commenced. Mr Terracini SC, who appeared on behalf of the offender, announced that his client would be giving sworn evidence in which he would not only admit his own role in the four offences to which he had pleaded guilty, but would also implicate each of the applicants in them as well. It was in those circumstances, that I made an order that the proceedings should be heard in closed court. It is to be observed that at that stage the offender had not been placed in an appropriate custodial facility. Counsel on behalf of each of the applicants and their instructing solicitors however sought, and were granted, leave to be in court whilst the offender gave his evidence.

6 I have now reached the stage where I am in a position to sentence the offender. Counsel appearing on behalf of the applicants were advised of that fact. Each of them was invited to make further submissions, if they so chose, upon the question of what reference (if any) there should be in the sentencing remarks to their respective clients and their alleged participation in the offences in question.

7 Counsel on behalf of each of the applicants indicated that they did not wish to be heard any further although each of them made clear that the original applications remained on foot. I have accordingly proceeded to consider the matter upon that basis. I should point out that no decision has as yet been made as to precisely when and where the trial or trials of the applicants will take place. I refer to the possibility of more than one trial because the applicant Snibson has foreshadowed an application for a separate trial from the applicant Flentjar.

8 Before dealing with the merits of the application, it is necessary to address a preliminary matter. It was contended on behalf of the various media organisations that the Court lacked the power to make the orders which are sought by the applicants.

9 In my view, there is ample authority to support the proposition that the Court has jurisdiction to make such orders. In John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) 61 NSWLR 344 Spigelman CJ, with whom Handley JA and Campbell AJA agreed, said:

Both the existence of, and the limitations upon, a power to make a non-publication order are set out in the principal authority on this subject in thisState: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, an authority which has frequently been referred to with approval and which this Court should follow.
In that case , McHugh JA said (at 476–477) :
“The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it . Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is ‘necessary to enable it to act effectively within’
its jurisdiction .” (Emphasis added.) (pars 39-40)

10 In SG v DPP & others [2003] NSWSC 413 Grove J declined to make a non-publication order in relation to evidence that was anticipated to be adduced at the trial of a man accused of murdering his parents and his sister. His Honour also declined to make a pseudonym order in respect of that man. In SG v DPP & Ors [2003] NSWCA 128 the Court of Appeal refused leave to appeal. Handley JA, with whom Hodgson and McColl JJA agreed, said that:

The principles which must guide the Court in cases such as this are those stated by McHugh JA in John Fairfax & Sons Limited v PoliceTribunal of New South Wales (1986) 5 NSWLR 465 at 476-7. Having regard to those principles the Court does not consider that this is a proper case for the grant of leave to appeal.
The trial of the claimant for murder will not take place for at least 10 months, possibly longer. While we do not doubt that this Court has power to grant injunctive and other relief to protect the integrity and fairness of a criminal trial, particularly a trial in the Supreme Court on serious charges such as murder, we do not consider that at this stage there is a sufficient threat to the integrity and fairness of a future criminal trial of the claimant to warrant interlocutory relief.
Some statements in the reasons for judgment of Grove J, read in isolation, might appear to deny the existence of such a jurisdiction in this Court. However these statements may well have been directed to the arguments before his Honour which appear to have concentrated on the supervisory jurisdiction of this Court over the Local Court and the powers of this Court conferred by s 23 of the Supreme Court Act. (pars 1-3)

11 In Fairfax (supra) Spigelman CJ observed:

I do not share the reservations with respect to the jurisdiction of this Court in its inherent jurisdiction, or under s 23 of the Supreme Court Act , to make orders for non-publication of proceedings in a statutory court or tribunal, that are expressed by Grove J in SG v DPP [2003] NSWSC 413 at [11]-[18], also doubted on appeal in that case. (See SG v DPP (NSW) [2003] NSWCA 128 at [3]. See also United Telecasters v Hardy (at 333C–D).) However, this matter does not arise on this appeal. (par 29).

12 Mr Sibtain submitted that the Court of Appeal in SG (supra) “was in error and [that] this Court would decline to follow [it]”. Counsel referred to the fact that it was an ex-tempore judgment which “was without reference to authority” and that it was inconsistent with two decisions of the High Court. I cannot accept that submission. First, the judgment in SG in terms cited with approval the principles enunciated by McHugh JA in John Fairfax & Sons Limited v Police Tribunal of New South Wales (supra). Secondly, those principles were again cited with approval by Spigelman CJ in John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales & ors (supra). Nor did his Honour see fit to doubt the correctness of the decision of the Court of Appeal in SG (supra). Thirdly, even if I was otherwise persuaded that I should take that course it is not for me sitting at first instance to refuse to follow a decision of the Court of Appeal of this State which is binding upon me.

13 The applicant Flentjar relies upon affidavits sworn on 29 October 2007 by his instructing solicitor, Gary Pudney and by a Gerald Anthony Doyle who is assisting Mr Pudney in the conduct of the matter. The applicant Snibson relies upon an affidavit which was also sworn on 29 October 2007 by her solicitor, Mark Douglass. That body of evidence reveals that the offender told both police, and other civilian witnesses whom the Crown intends to call in his case, that he was present at the time when the alleged offences took place and indeed observed them occurring. The offender nominated the applicant Snibson, whom he knew well, as being one of the persons responsible for the commission of the offences. Furthermore, he implicated a male person, whom he says he did not know, as having also been involved. The Crown relies upon other material in support of its case that that other person is the applicant Flentjar. Of course, as I have said earlier, things have now somewhat changed in that the offender has indicated that he will give sworn evidence against the applicants implicating them in the offences alleged against them.

14 The balance of the material demonstrates that the case has attracted a very considerable degree of publicity, particularly in the Wollongong area which is where the trials were listed to be heard. There was widespread media attention when the alleged offences first came to light in January 2006. Since then there has been only sporadic reference to the case although media interest in the case has increased again following the pleas entered by the offender. I should add that the coverage to date, at least insofar as the material with which I have been furnished is concerned, has been suitably restrained. It can nevertheless be anticipated that the sentencing remarks in respect of the offender will attract considerable attention. I should record that the position from the applicants’ perspective has, in some senses, improved because of the offender’s decision to plead guilty. First, it has led, as I have said, to the sentence proceedings against him being held in closed court. Secondly, it has meant that there has not been the saturation coverage of the proceedings on a daily basis that might have occurred had the offender’s matter proceeded as a trial.

15 The submission put on behalf of the applicant Flentjar is encapsulated in the following paragraph which appears in the affidavit of his solicitor.

These particular murders have attracted substantial publicity in the Nowra and Wollongong areas and will likely continue to do so during the course of the trial. A major part of the Crown case will be the evidence of the various accounts given by Lea-Caton. This material will be extensive, colourful and unambiguously incriminating of the applicant. A consumer of the coverage will understand that Lea-Caton had from the earliest time alleged that the murders were committed by Snibson and an unnamed man who was present at the house and involved in tying the victims up. Unless publication of his evidence is suppressed it is likely that the jury in the applicant’s trial will be aware of Lea-Caton’s allegations. Given the nature of those allegations it is unlikely that any direction would cure the potential prejudice to the applicant’s receipt of a fair trial.

16 In written submissions the following contentions are advanced:

Inevitably some of the people who become part of the applicant’s jury will be familiar with the allegations of Lea-Caton that the male who tied the victims up killed them. They will have heard no reports of evidence to the contrary because the Crown will not be contesting any assertion by Lea-Caton that the applicant was involved in the killings.
The prejudicial effect of the jury’s knowledge of Lea-Caton’s allegations will not be able to be effectively dealt with by way of direction.

17 It was also contended by the applicants that the provision to them of pseudonyms would be quite insufficient to guarantee them each a fair trial because inevitably they would be viewed by potential jurors as the alleged perpetrators of what may be described as being highly unusual crimes.

18 So far as the applicant Snibson is concerned, the following paragraph which appears in the affidavit of her solicitor, reveals the essence of the submissions advanced on her behalf:

The publication of material identifying the accused Kim Snibson in the trials of her co-accused Stacey Lea-Caton and Andrew Flentjar would result in unfair prejudice to the accused as there is a real possibility that inaccurate reportage prior to her trial may prejudice the accused Snibson having a fair trial. There is also a real risk that the Crown case against the accused Snibson will be made immeasurably stronger by the publication of evidence in the trials of her co-accused prior to her trial.

19 It is convenient to deal immediately with the matters raised on behalf of the applicant Snibson. First, it is a matter of pure conjecture at this stage as to whether or not there will be inaccurate reporting prior to her trial. Even if there were to be, I have little doubt that any prejudice could be overcome by appropriate directions. Nor can I accept the submission that the case against her “will be made immeasurably stronger by the publication of evidence in the trials of her co-accused prior to her trial”. It is common ground that the material in which the offender implicates the applicants in the offences will inevitably be before the jury which hears their trial or trials because, as I have said, the Crown intends to call him as a witness in that trial or trials. In other words, unlike other cases, there is no prospect of evidence which would be inadmissible against them entering the public domain prior to their trial or trials.

20 The principles to be applied in determining the present applications are not contentious. They were authoritatively stated in Fairfax (supra) in which Spigelman CJ observed that:

It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. ...

It is also well established that the exceptions to the principle of open justice are few and strictly defined . …
The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. (See, for example, Attorney General v Leveller Magazine Ltd [1979] AC 440 at 450.) (pars 18-20)

21 In considering whether a non-publication order meets the test of necessity postulated by McHugh JA in the extract referred to in para 9 of these reasons, his Honour observed that “it is necessary to determine that the objective of ensuring the fairness of a subsequent trial cannot be achieved in any other way…[a]djournments and stays are ordinarily sufficient to ensure a fair trial to the accused and the additional power to make a non-publication order is not necessary” (at pars 51,55).

22 His Honour then went on to say:

There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them.
…
The perspective that jurors properly perform their task, are true to their oath and comply with a trial judge's directions has repeatedly been applied in appellate courts over recent years. (See R v Milat ; R v Bell ; R v Long ; R vBijkerk [1999] NSWCCA 114; R v Dudko ; R v D'Arcy ; R v Burrell .) (at par 103, 110)

23 In R v Kanaan [2006] NSWCCA 109 the Court of Criminal Appeal observed:

It has long been accepted that jurors are able to exercise a critical judgment of what they see, read and hear in the media, and to put such material out of their minds: Duff v The Queen (1979) 28 ALR 663 at 677; AG v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 711; Hinch v AG (Vic) (1987) 164 CLR 15 at 74; Regina v George (1987) 29 A Crim R 380 at 395; Regina v Bell (BC9805451), CCA, 8 October 1998 at 4-7. It must be accepted until the contrary is demonstrated that the jury accept and faithfully apply the directions given to them by the trial judge: Demirok v The Queen (1977) 137 CLR 20 at 22; Hinch v Attorney-General (Victoria) at 74; Regina v Yuill (1993) 69 A Crim R 450 at 453. It is a frequently recognised phenomenon that any criminal trial, by its very nature, causes all involved in it to become progressively more inward looking, with the capacity to study the evidence given and the submissions made in the courtroom, to the exclusion of other sources of information: AG v News Group Newspapers Ltd [1987] QB 1 at 16; Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 at 569-570. (at par 24)

24 See also R v Kaddour (2005) 156 A Crim R 11.

Conclusion

25 After having applied those principles to the material which was placed before me, I have formed the view that the circumstances of the present case fall well short of necessitating the making of the orders sought by the applicants. First, I do not discern that there is any prejudice of the relevant kind to the applicants. The material about which the applicants have expressed concern will, as I have said, be led against them when they face trial. Their position is not relevantly different to that of accused persons against whom allegations are aired at a committal hearing or in other pre-trial hearings. The fact that there may well be no contradictor at this stage to the allegations made by the offender is not a matter which I consider carries much weight. I am quite sure that modern juries understand the clear distinction between an allegation and evidence.

26 Even if there was to be some prejudice of the relevant kind, I am far from persuaded that it could not be adequately cured by directions of the kind to which the Chief Justice referred in Fairfax (supra). Finally, even if I was to also be wrong about that matter then there are, in my view, other alternatives available which would cure any potential prejudice. As matters presently stand, there is no prospect that the trials of the applicants can commence this year. Although it may have been desirable, had everything else been equal, to have had “back to back” trials, it is now apparent that there is insufficient time left this year to accommodate the trial or trials of the applicants. Indeed my enquiries reveal that a trial date for the present applicants could not be obtained until at least April next year. Should that period of time be thought to be too short to enable the applicants to obtain a fair trial (a matter which as presently advised I would somewhat doubt) then an application for a temporary stay or some other appropriate remedy could be made.

27 The applications are accordingly refused. I now vacate the order which I made on October 24 to the effect that there was to be no publication of the identities of the applicants Flentjar and Snibson until further order.

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