R v Martinez; R v Tortell (No. 1)

[2019] NSWSC 1617

Supreme Court

New South Wales

Medium Neutral Citation:	R v Martinez; R v Tortell (No. 1) [2019] NSWSC 1617
Hearing dates:	7 November 2019
Date of orders:	07 November 2019
Decision date:	07 November 2019
Before:	Johnson J
Decision:	Notice of Motion of the Accused Tortell is dismissed.
Catchwords:	CRIMINAL PROCEDURE – application for suppression, non-publication and take down orders – application opposed by a media outlet – present trial is retrial following a successful appeal – earlier trial subject to media publicity – whether orders necessary to prevent prejudice to proper administration of justice – whether orders would be futile – whether directions ordinarily given in jury trials are adequate – where law of contempt and provisions of the Jury Act 1977 operate – orders not necessary to prevent prejudice – application refused
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 Jury Act 1977
Cases Cited:	AW v R [2016] NSWCCA 227 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 Martinez v R, Tortell v R [2019] NSWCCA 153 Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97 R v Obeid [2015] NSWSC 897
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) Wade Martinez and Jake Tortell (Accused)
Representation:	Counsel: Mr M Barr (Crown) Mr C Watson (Accused Martinez) Mr J Trevallion (Accused Tortell) Ms L Norman, Solicitor (Fairfax Digital Australia and New Zealand Pty Limited)   Solicitors: Director of Public Prosecutions (Crown) McGowan Lawyers (Accused Martinez) Alexanders Lawyers (Accused Tortell)
File Number(s):	2015/251812 (Martinez)2015/251805 (Tortell)
Publication restriction:	---

Judgment

1. JOHNSON J: By Notice of Motion filed in Court this morning, the accused, Jake Tortell, seeks orders under the Court Suppression and Non-publication Orders Act 2010 (“CSNO Act”), by reference to existing media articles concerning an earlier trial affecting him and his co-accused, Wade Martinez.

2. Mr Tortell and Mr Martinez stood trial for murder in 2017 and were found guilty by a jury. Each of them appealed to the Court of Criminal Appeal, which on 10 July 2019 allowed the appeals, quashed the convictions and ordered a new trial: Martinez v R, Tortell v R [2019] NSWCCA 153. The new trial of Mr Tortell and Mr Martinez is scheduled to commence next Monday 11 November 2019 with the empanelment of a jury.

3. Yesterday, I was informed that the application contained in this Notice of Motion would be brought this morning when the proceedings are before the Court for other pretrial purposes.

4. In support of the application, Mr Trevallion, counsel for Mr Tortell, reads the affidavit of Stephen Alexander, sworn 6 November 2019. The affidavit of Mr Alexander identifies a series of articles from 2015 and 2017, concerning the arrest and trial of Mr Tortell and Mr Martinez and their sentencing after the first trial by Mathews AJ. According to Mr Alexander's affidavit, there are some 31 items which he has detected via a Google search, with those articles appearing in Sydney metropolitan newspapers and on websites associated with television stations and other media entities, both in New South Wales and interstate.

5. Yesterday afternoon, Mr Alexander sent emails to journalists, or persons who were selected as points of contact with respect to the various media outlets, requesting that the 31 nominated items be taken down from the relevant websites and indicating that an application would be made to the Court this morning with respect to this issue.

6. Today, Ms Norman appears on behalf of Fairfax Digital Australia and New Zealand Pty Limited (“Fairfax”), with respect to “The Sydney Morning Herald”. There is no other appearance this morning on behalf of any media outlet. I note that the only person served with the Notice of Motion and affidavit of Mr Alexander is Ms Norman, who requested that that be done in the short time between yesterday and this morning to assist her appearance today.

7. The Notice of Motion (as drawn) seeks an order that the publication of the names of Mr Tortell and Mr Martinez and details of the previous trial and sentencing be prohibited until the conclusion of the current trial. The Notice of Motion does not in turn seek what have been described as take-down orders. However, the submissions of Mr Trevallion made clear that that is what he is seeking – that an order be made that the various items be taken down from the Internet for the purpose of the trial.

8. I should mention that judgments of the Supreme Court and the Court of Criminal Appeal with respect to these proceedings have been removed from Caselaw in accordance with usual practice, in advance of the retrial. The judgment of the Court of Criminal Appeal does not appear on Caselaw, nor does any judgment (including the sentencing judgment) of Mathews AJ.

9. It is submitted for Mr Tortell that there is a real risk of prejudice to him if take-down orders are not made by reference to s.8 CSNO Act upon the basis that an order is necessary to prevent prejudice to the proper administration of justice: s.8(1)(a).

10. Mr Trevallion submitted there was utility in making these orders, as they would operate to further protect the trial of his client and that it was appropriate for the Court to make the orders.

11. Mr Watson, counsel for Mr Martinez, supported the application but made no further submissions, effectively adopting what was put on behalf of Mr Tortell.

12. Ms Norman submitted that there are a number of difficulties with the application. It was submitted that there was a real difficulty with the applicant satisfying the test of necessity in s.8 CSNO Act. Further, there are difficulties with the utility and effectiveness of the proposed orders. It was submitted that the appropriate course is for the Court to not make orders of this sort, but to proceed conscious of the steps that will be taken at the beginning of the trial, including a clear direction to the jury concerning the operation of s.68C Jury Act 1977 with respect to non-searching by members of the jury.

13. At the outset, I note that this application has been made very late and with no effective notice being given to all the media outlets who are affected by it. Ms Norman has appeared today in the interests of Fairfax. Mr Trevallion informs the Court that a person from SBS has been in contact, saying it is a matter for the Court and that someone from Channel Seven has indicated a similar view.

14. There are other entities involved as well and I am not satisfied that there has been proper and clear notice given to each of them that this application was to be made at very short notice today. There is no satisfactory explanation either as to why this application was generated yesterday and made today, against the background of pretrial hearings before me extending back a number of weeks. I put that issue to one side, however, and I will deal with the application on its merits.

15. It is necessary for an applicant for orders of this type to demonstrate that the order is necessary for the purpose of s.8 CSNO Act. It is also necessary that the order be effective and have utility. I proceed on the basis that the trial of the present Accused persons is not what could be described as a high profile trial. Particular issues have arisen in the past with persons who are regarded as high profile citizens who are to stand trial by jury. However, even in cases of that type (such as R v Obeid [2015] NSWSC 897) in determining that a Judge-alone trial application ought be refused, the Court referred to well-known statements by Courts about the capacity of members of the public who are jurors to deal with trials on their merits and in accordance with the directions given concerning s.68C Jury Act 1977.

16. Themes of that sort have been picked up in other decisions of the Court of Criminal Appeal. In Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97, the Court overturned take-down orders which had been made by the first instance Judge, noting (at [89]-[90]) that much of the material was old, and that it was important that the trial Judge would give adequate directions to a jury with the Court giving full effect to the received wisdom that jurors act responsibly and in accordance with their oaths, including complying with the directions of the trial Judge. This theme has been picked up as well in AW v R [2016] NSWCCA 227 at [16].

17. Difficulties which can arise with take-down order applications were considered by the Court of Criminal Appeal in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125. Basten JA (in particular at [77]-[80]) emphasised the difficulty of identification of persons and parties who control sites which may be the subject of take-down orders, and difficulties with enforcement.

18. Counsel for Mr Tortell has noted that the entities who publish the various articles referred to in Mr Alexander's affidavit were all local. Whether the controlling body with respect to those is local or not is something as to which there is no evidence. Nor is there any satisfactory evidence as to whether or not there has been further publication of those articles beyond the 31 items which Mr Alexander has identified in his affidavit, after some Google searching.

19. I do not think that the difficulties posed in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim with respect to utility and effectiveness can be so lightly put to one side as is sought to be done by counsel for Mr Tortell on this application.

20. It is necessary to bear in mind, as well, that the law of contempt of Court will operate from the time this trial commences. The media will well understand that what can be published is what happens in the presence of the jury in this trial. No media report about this trial could lawfully refer to the earlier trial or the decision of the Court of Criminal Appeal, unless, of course, something was said to the jury about the fact that this is a retrial and why.

21. I expect that the jury at the trial to commence next week will learn that this is a retrial, and a formula of words will be crafted to explain to them that there were earlier proceedings. That formula of words is unlikely to extend to any detail as to why a further trial is happening.

22. The fact is, however, that the jury selected on Monday will be subject to the legal obligations under s.68C Jury Act 1977. As was made clear in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (at [62]), and in other decisions such as R v Obeid (at [63]), that is an important and serious obligation on the part of jurors. The Court should proceed upon the basis that jurors will comply with it. I will be reminding the jury in clear terms of that obligation at the commencement of the trial.

23. To the extent that counsel for Mr Tortell says that there is a possibility that some other person associated with a juror may do some Google searching and find out about the earlier proceedings and inform the juror about it, that is speculative. More importantly, the 12 members of the jury will be informed that steps of that sort are also prohibited – they cannot obtain any information in that way.

24. I return to the starting point. I am simply not persuaded that it is necessary for the purpose of s.8 CSNO Act to make orders in the form of take-down orders in this case. There remain, in my view, serious complications and difficulties in the enforcement of orders, even if the Court determined to make them.

25. The administration of justice will be appropriately protected by the jury being informed of their obligations under s.68C Jury Act 1977 and by the media being aware of their obligations by reference to contempt of Court.

26. I refuse the application made on behalf of Mr Tortell. The Notice of Motion is dismissed.

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Decision last updated: 18 December 2019