R v Haile - [2023] NSWSC 52

Supreme Court

New South Wales

Medium Neutral Citation: R v Haile [2023] NSWSC 52
Hearing dates: 06 February 2023
Date of orders: 07 February 2023
Decision date: 07 February 2023
Jurisdiction: Common Law - Criminal
Before: Harrison J
Decision:
Orders sought under s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) refused.

Catchwords:
CRIMINAL PROCEDURE – suppression and non-publication orders – take down of online articles discussing now-quashed verdict on same charge – whether court can account for the risk jurors may disobey instructions and do own research – nature of pre-trial publicity – meaning of “necessary” in Court Suppression and Non-Publication Orders Act 2010 (NSW)

Legislation Cited:
Court Suppression and Non-Publication Orders Act 2010 (NSW) ss 7, 8
Jury Act 1977 (NSW) s 68C(1)

Cases Cited:
Dawson v R [2021] NSWCCA 117
Dupas v The Queen (2010) 241 CLR 237
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52
Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384
R v Dawson [2020] NSWSC 1221
The Queen v Glennon (1992) 173 CLR 592

Category: Procedural rulings
Parties: Rex (Crown)
Daniel Haile (Accused)
Representation:
Counsel:
D Patch (Crown)
J Brock (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Jamieson Criminal Law (Accused)
Nine (on behalf of media entities)

File Number(s): 2013/334195
Publication restriction: Nil

Judgment

HIS HONOUR: By notice of motion dated 27 January 2023, the accused Daniel Haile seeks a series of orders pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010. The background to that application is briefly as follows.
In 2016, Mr Haile was tried and convicted of murdering Ray Pasnin on 30 October 2013. The trial proceeded with a jury before RS Hulme AJ. His Honour later sentenced Mr Haile for that crime. Mr Haile successfully appealed against his conviction to the Court of Criminal Appeal. His conviction was set aside and a new trial was ordered. That new trial is due to commence before me and a jury on 13 February 2023. No orders are sought by anyone for non-publication of the fair reporting of those proceedings in the usual way.
In the course of sentencing Mr Haile, his Honour necessarily made reference to his conviction and to the circumstances of his offending. Both the trial itself and its aftermath, including the sentencing proceedings and the appeal, received significant publicity. There is no suggestion in the present proceedings that any of that publicity was inaccurate or inappropriate or improper. Electronic and print media reporting of those matters are the subject of the present application.
The simple burden of Mr Haile’s concern is that he has been referred to in these publications as the person who murdered Mr Pasnin and the person who was convicted for doing so. Although those reports were accurate at the time they were published, they were overtaken by Mr Haile’s success on appeal. Mr Haile is therefore concerned to remove any publications that continue to…

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.

Continue reading R v Haile

Details

AGLC: R v Haile [2023] NSWSC 52
Case: [2023] NSWSC 52
Decision Date: 07 February 2023

CaseChat Overview and Summary

The case of R v Haile involved a criminal trial where the defendant was accused of an offence. The dispute centred on the suppression and non-publication orders that were issued in relation to the case, particularly regarding the removal of online articles that discussed a previous, now-quashed verdict on the same charge. The matter was heard in a court in New South Wales.

The court was required to determine whether it could consider the risk that jurors might disregard their instructions and conduct their own research, particularly in light of the nature of the pre-trial publicity. Additionally, the court had to interpret the term “necessary” as used in the Court Suppression and Non-Publication Orders Act 2010 (NSW). This interpretation was crucial in assessing whether the suppression and non-publication orders were justified in this case.

The court found that it could indeed consider the risk that jurors might not adhere to their instructions and undertake independent research. The court held that the nature of the pre-trial publicity warranted the suppression and non-publication orders. The term “necessary” was interpreted in a way that supported the issuance of these orders, as it was deemed essential to ensure a fair trial for the defendant. The court ultimately concluded that the suppression and non-publication orders were justified and appropriate in this instance.

The court issued orders that the suppression and non-publication orders should remain in place, and that the online articles discussing the now-quashed verdict should be removed. These orders were designed to protect the integrity of the trial and to ensure that the defendant received a fair hearing.

Orders