R v Meegan
[2014] ACTSC 263
•10 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lewis Todd Meegan |
Citation: | [2014] ACTSC 263 |
Hearing Date(s): | 11 September 2014 |
DecisionDate: | 10 October 2014 |
Before: | Refshauge J |
Decision: | The application for an order under s 111 of the Evidence (miscellaneous Provisions) Act 1991 (ACT) that the name of the accused not be published be refused. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW AND PROCEDURE – Application for non-publication order – Principles of open justice – Circumstances under which non-publication order can be made – Material identifying Applicant already widely disseminated – Identity of person or persons disseminating material is not known – Trial not imminent – Likelihood of irreparable damage to the Applicant’s ability to receive a fair trial remote – Application dismissed |
Legislation Cited: | Crimes Act 1900 (ACT), s 54(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40, 111, 111(2), 112 Legal Profession Act 2006 (ACT), s 423A |
Cases Cited: | AA v BB (2013) 296 ALR 353 Abbott v Wallace [2002] NZAR 95 XZ v The Queen [2000] FCA 1143 |
Texts Cited: | Michael Bohlander, ‘Open Justice or Open Season?: Should the Media Report the names of Suspects and Defendants?’ (2010) 74(4) Journal of Criminal Law 321 JJ Spigelman QC AC, ‘The Principle of Open Justice: A Comparative Perspective’ (2006) 29 UNSW Law Journal 147 |
Parties: | Lewis Todd Meegan ( Applicant) The Queen ( Respondent) |
Representation: | Counsel Mr J Sabharwal ( Applicant) Ms S McMurray ( Respondent) |
| Solicitors Sharman Lynch Solicitors ( Applicant) ACT Director of Public Prosecutions ( Respondent) | |
File Number(s): | SCC 188 of 2014 |
Refshauge J:
Lloyd Todd Meegan has been charged with engaging in sexual intercourse without consent and being reckless as to whether there was consent. The offence is alleged to have occurred on 8 September 2011.
Mr Meegan is a university student, and since he has been charged, posters have appeared around the university campus which are headed in large letters “Rapist Charged”, with an apparent photograph of his face underneath these words. That is, of course, inaccurate, since Mr Meegan has only been charged with non-consensual intercourse (which might be colloquially termed “rape”) and has not been found guilty. To describe him, therefore, as a rapist inaccurately presumes that he has been found guilty of the charge.
The poster reinforces this impression, as it also states that the “Department [sic] of Public Prosecutions” has “found him accountable” in the ACT Magistrates Court, whatever that may mean. He has been committed to stand trial, but that does not, as the statement might imply, means he has in any sense been found to have committed the offence or is responsible for it.
To describe a person who has been charged with rape as a rapist where he has not been convicted of an offence that would justify that description is very likely to be defamatory. See Webb v Beavan (1883) 11 QBD 609 at 690.
Also, such a statement may well constitute a contempt of Court. As Willes J observed in R v Balfour, Re Stead (1895) 11 TLR 492 at 493 of a statement assuming the guilt of a person charged with a criminal offence:
The writer here has known his contribution into the stream of prejudice against the person to be tried, and was anticipating the result of the trial, which was an illegal and improper thing to do.
Mr Meegan has, however, not sought to prosecute anyone for contempt of court or to sue for defamation, but has sought an order under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) that his name not be published outside a courtroom. The application is opposed by the Crown. The Crown relies on the principle of open justice in its opposition to the application.
Open Justice
For reasons convincingly explained by JJ Spigelman QC AC in ‘The Principle of Open Justice: A Comparative Perspective’ (2006) 29 UNSW Law Journal 147 at 147-50, I start with the statement of the principle by Lord Justice Sankey in Hobbs v CT TinlingandCo Ltd [1929] 2 KB 1 at 48:
Justice should not only be done but should appear to have been done.
This principle of open justice has been jealously guarded by the Courts. In McPherson v McPherson [1936] AC 177 at 200, the Privy Council stated:
Publicity is the authentic hall-mark of judicial as distinct from administrative procedure ... the court must be open to any who may present themselves for admission. The remoteness of the possibility of any public attendance must never by judicial action be reduced to the certainty that there will be none.
Those proceedings involved a hearing in fact held in private in the Supreme Court of Alberta, though the fact that the respondent (the plaintiff below) was a prominent politician was expressly accepted as not being the reason for the privacy.
In Scott v Scott [1913] AC 417 at 473, Lord Shaw of Dunfermline described the principle of open justice as “a sound and very sacred part of the constitution of the country and the administration of justice”.
To the same effect, Lord Loreburn said (at 445) in the same case “The inveterate rule is that justice should be administrated in open court”.
These cases have been followed in Australia where, as early as 1937, Jordan CJ said in Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255 at 257:
[a]s a general rule all Courts must be open to public. It is a principle of the utmost importance in the administration of justice that the liberty or rights of the subject should not be adjudicated upon by tribunals sitting in secret and behind closed doors: Scott v Scott [[1913] AC 417]: McPherson v McPherson [[1936] AC 177].
This general approach has been accepted in the High Court. See Dickason v Dickason (1913) 17 CLR 50 at 51; Russell v Russell (1976) 134 CLR 495 at 520, 532 and 537.
This approach has been enshrined in s 21 of the Human Rights Act 2004 (ACT) which requires rights to be decided by a court “after a fair and public hearing”.
The application of the principles of open justice are particularly appropriate in the exercise of the criminal jurisdiction, where, as the Court said in R v Tait (1979) 46 FLR 386 at 401, it is particularly undesirable that criminal proceedings be conducted in closed court or with restrictions on publicity. In Bond v The Queen (1992) 62 A Crim R 383 at 420-1, Murray J explained:
On the criminal side of the court's jurisdiction, it seems to me that the fundamental principle of the public administration of justice has even more point to it than in the exercise of the court's civil jurisdiction. Every aspect of the exercise of the court's criminal jurisdiction is concerned with the liberty of the subject which is to be properly placed in jeopardy by the performance of a public prosecutorial function by an agency of the State. It is vital, generally speaking, that every aspect of the performance of that function and every aspect of the work of the court, should be subject to public scrutiny. In general terms, in my opinion, the public performance of such functions positively enhances the due administration of criminal justice. Not only does it enable the community to fully participate in the process of the administration of the criminal law, but the public scrutiny of the process of the prosecution of charges of criminal offences enables the community to monitor the content of the substantive and procedural criminal law. So far as individual cases are concerned, the fact that testimony is given and evaluated in public, in my view, plays a positive part in inhibiting the perjurer and putting the brakes on those who may be tempted to seek to pervert or otherwise interfere with the course of justice. It may result, in addition, in other persons coming forward so that the court is ultimately presented with a more complete factual picture against which to judge the issues raised in any given case.
The court has an inherent power to make orders that limit the principle of open justice, as noted in Russell v Russell at 520. Some categories, which I set out in R v BR [2010] ACTSC 17 at [24], are relatively well-established. The categories are not closed. There are also statutory provisions which now require names to be suppressed, evidence not to be published or proceedings to be heard in a closed court from which the public is excluded. I set those out also in R v BR at [25]. The prohibition of the publication of evidence can result in the suppression of the name of a party or a witness as in XZ v The Queen [2000] FCA 1143.
Name Suppression
The question, then, is whether the principle of open justice applies to the publication of names of parties or witnesses and, if so, to what extent and whether applicably in this case.
The common law gave no inherent jurisdiction to a court to forbid publication generally of evidence or the names of parties or witnesses, particularly if those orders were intended to be enforceable against persons not properly before the court, as parties or persons present in the courtroom as this was clearly explained by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476‑7 and Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342 at 355.
There are, however, statutory processes that require certain names of those involved in litigation not to be published in certain circumstances. Thus, s 40 of the Evidence (Miscellaneous Provisions) Act prohibits the publication of the identity of a complainant in a sexual offence proceeding. Similarly, s 423A of the Legal Profession Act 2006 (ACT) prohibits the publication of the name or any indentifying information of a legal practitioner subject of a disciplinary complaint until the proceedings, including any appeal, have been concluded:
In some jurisdictions, wide powers are given to courts and tribunals to make orders prohibiting the publication of the names of parties or any information that may identify them. Such orders are often referred to as suppression orders. Despite such powers, the open justice principle remains a central matter. As Cooke P said in R v Liddell [1995] 1 NZLR 538 at 546-7:
In considering whether the power given [in the legislation empowering the court to make a suppression order] should be exercised, the starting point must always be the importance in a democracy of freedom of speech, often judicial proceedings and the height of the media to report the matter freely and accurately at “surrogates of the public” ... Departures from these principles are necessary of times to avoid prejudice in pending trials ... What has to be stressed is that the prima facie presumption as to reporting is always in favour of openness.
Some jurisprudence relates to the context of the persons who have been convicted of offences. Thus in Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546, the New Zealand Court of Appeal overturned a suppression order made in respect of the name of a visiting American who had been found guilty of two charges of importing cannabis and one charge of importing cannabis resin. Before sentencing the defendant had made a substantial donation to charity.
He was discharged without conviction and a suppression order made. The New Zealand Court of Appeal discharged the suppression order.
It had been put to the court that he was an “extraordinarily successful businessman, community leader and philanthropist”, who would probably have to resign from the board of his companies because the impression that the findings would give would be that he was involved in drug trafficking.
In giving the judgment of the court, Elias CJ said at 563-4: [68]
The standing of the appellant as “an extraordinarily successful businessman, community leader and philanthropist” was not grounds for suppressing his name in the absence of evidence of special harm to him through publicity. No harm to the appellant was suggested beyond the submission that his standing would make media interest in him “undue”. That is tantamount to a submission that successful or prominent members of the community should receive name suppression because there may be media interest in such people. The Court cannot enter into assessment of whether media or public interest is appropriate or “undue”. The right to receive and impart information is not limited in the present context according to qualitative and subjective standards adopted by the Judge. It is a right to receive information “of any kind in any form”. In cases where some real harm is identified, it may be necessary for the Judge to decide whether the harm which may be caused is disproportionate to the public interest in open justice and the freedom to receive information “of any kind”. In such cases it may be necessary for the Judge to weigh the public interest in receiving the particular information. But in the absence of indentified harm from the publicity which clearly extends beyond what is normal in such cases, the presumption of public entitlement to the information prevails. Any other approach risks creating a privilege for those who are prominent which is not available to others in the community and imposing censorship on information according to the Court’s perception of its value.
The approach is, however not confined to the post-conviction period. Thus, in Abbott v Wallace [2002] NZAR 95 the High Court of New Zealand declined to make a suppression order of the name of a police officer charged in a private prosecution with the murder of a person whom the accused shot said to be in the line of duty.
The Court had to consider risk to the accused and his family when threats are commonly made following police shootings and had been made in this case by members of the family of the deceased, the right to the accused’s police career and the presumption of innocence.
Nevertheless, the Court noted that the name of the accused had already been published. It declined to suppress his name.
The Court noted the clear principle set out in Lewis v Wilson & Horton Ltd that the balance between the public interest of openness and the interests of the person seeking the suppression order “must come down clearly in favour of suppression if the prima facie presumption in favour of open reporting is to be overcome”.
The Court further noted that an important additional matter identified by the New Zealand Court of Appeal in Proctor v The Queen [1997] 1 NZLR 295 at 298, 299 is the presumption of innocence, though its weight depended on the particular circumstances.
In Proctor v The Queen, the accused was a general surgeon whose practice, it was said, would be completely destroyed were his name to be published as having been charged with sexual abuse of six youths over a period of eighteen years. There was also said to be difficulties this would be experienced by his wife, a school teacher, involved in special needs caring for children with mental and physical difficulties.
The publication there was to be by a newspaper.
The Court accepted that the hardship to the wife and family were “extreme” but a predictable and inevitable consequence of being charged with the offence as was the consequences for his employment.
The Court found that the only basis for a suppression order was that the trial was only eight weeks away and apparently the publication proposed included an alleged admission which was apparently denied. Thus, the fairness of the trial was significantly at risk of compromise. In these circumstances a suppression order was made.
Relevantly, the Court referred (at 300) to a matter that has some relevance here as follows:
Fourthly, we have indicated our approval of the learned Judge’s approach and reasoning in respect of the question whether public identification of Mr Proctor could lead to the discovery of additional offending when we quoted from his judgment at some length above. This point is undoubtedly an important one favouring publication. Moreover, when the circumstances are such as to make this factor a pertinent consideration it is preferable that the question of suppression be resolved as early as possible. If a suppression order is to be refused, the prospect of other potential complainants coming forward is obviously increased the sooner publication takes place.
That this did not ultimately justify the refusal to make a suppression order was because of the proximity of the trial, during which, clearly, no such order would continue. The likelihood that a further complainant could be added to the trial in the circumstances was so remote that the suppression order not refused.
The Australian authorities lead to a similar approach. As French CJ pointed out in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 295 ALR 638 at 659; [67], one of the defining characteristics which make out a court from other decision-making bodies includes the adherence as a general principle to the open court principle. The corollary of that principle, said French CJ in Hogan v Hinch (2011) 243 CLR 506 at 532: [22], is:
that, absent any restrictions ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and the witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings.
Indeed, as McHugh JA explained in John Fairfax & Sons Ltd v Police Tribunal New South Wales at 476-7:
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.
In AA v BB (2013) 296 ALR 353, Bell J helpfully summarised the cases where suppression orders may be made as to the names of parties. His Honour said (at 389; [182]):
Making a non-publication order may be necessary in cases where, in the absence of an order, parties would be deterred from bringing proceedings for the vindication of their legal rights, such as cases involving victims of blackmail, negligence or sexual assault where the person would suffer public ridicule or acute personal embarrassment if his or her identity were to be disclosed in legal proceedings. An order may be made in proceedings involving people with a mental illness, wards of the state or children in the parens patriae jurisdiction and in proceedings involving trade secrets. It may be necessary to make an order for the avoidance of prejudice to the administration of justice where publicity would destroy or imperil the subject matter of the proceeding. The categories of proceeding in which an order may be made are not closed.
(Footnotes omitted)
In Director of Public Prosecutions v Williams (2004) 10 VR 348, Cummins J reviewed the relevant authorities, namely Hinch v The Attorney-General for the State of Victoria (1987) 164 CLR 15, R v Glennon (1992) 173 CLR 592; Friedrich v Herald and Weekly Times Ltd [1990] VR 995. His Honour summarised the principles (at 352; [18]-[20] as follows:
Essentially, the relevant principles come to this. First, that the court has power to protect its own processes, primarily that of a fair trial and to ensure that accused persons are given a fair trial and that they are seen to be given a fair trial. That is, as I have said, in the interest of accused persons, in the interest of the prosecution, and in the interest of the court process and in the interest of the public at large. That is a fundamental and powerful function of court process, which will be activated if there is a real risk of serious interference with the administration of justice.
Secondly, the court will not interfere with matters of legitimate public concern or legitimate public discussion, and the court will not stifle that public discussion, and will not muzzle the media in the fulfilment of that public discussion, subject to the avoidance of the risk of serious interference with the administration of justice.
Thirdly, long experience in the law, and my limited experience in the law, confirms that juries are robust and are responsible. Of course, one must not ask psychological impossibilities of juries, and one must always be astute to prevent prejudice creeping into the jury trial from extraneous sources. But juries, time and again, come to court in cases of great notoriety and publicity and demonstrate by their evident application of mind that they act accordingly to their oath or affirmation to give a true verdict according to the evidence led before them in court. Juries also see the effort which all counsel put into cases, they see the attention to evidence, they see the testing of evidence and often the destruction of apparently persuasive evidence by cross-examination, they hear the directions of the trial judge and they are in law bound by them. Juries by direction, observation and osmosis assume a proper and responsible role as the judges of the facts, judging the case solely on the evidence led in court.
In Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 59-60, Kirby P pointed out:
I do not ... wish to appear insensitive to the problem to which this motion calls attention. There is no doubt that great harm can be done to individuals by the widespread circulation of protected reports of their involvement in criminal or quasi criminal proceedings. Especially may this be so where such proceedings are commenced by private individuals, where the exercise of discretion and preliminary consideration may not have been given as may be expected in public prosecutions. Widespread publicity, through the modern media of communications, may do great harm. Sometimes quite unjustifiable damage can be inflicted on individuals. Furthermore, at least where a jury trial may follow, such harm may, in cumulation, render the fair trial of the issues by an impartial and uncontaminated jury extremely difficult to procure. ... However that may be, a price must be paid for the open administration, particularly of criminal justice. The alternative, of secret trials, where important public rights may be in competition and individual liberty may be at risk is so unacceptable that courts of our tradition will tend to avoid the consequence.
As a number of cases point out, despite sympathy for those who suffer embarrassment, invasion of privacy or shame, these are not sufficient matters in themselves to justify the making of a suppression order. See John Fairfax Group v Local Court New South Wales (1991) 26 NSWLR 131 at 142-3; Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267 at 295; [93].
It is also pointed out by the Victorian Court of Appeal in Re Application by Chief Commissioner of Police (2004) 9 VR 275 at 293; [95] that the courts should not make idle and ineffectual orders. See also News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248.
Despite this approach, some academic commentary suggests that the courts do not recognise clearly enough the major role of some privacy for accused persons. See, for example, Michael Bohlander, ‘Open Justice or Open Season?: Should the Media Report the names of Suspects and Defendants?’ (2010) 74(4) Journal of Criminal Law 321.
The Facts
On 16 April 2014, Mr Meegan was summonsed to appear in the Magistrates Court and answer two charges under s 54(1) of the Crimes Act 1900 (ACT) that he engaged in sexual intercourse with the complainant without her consent and reckless as whether she consented.
According to the Statement of Facts prepared by the police, which sets out the allegations the prosecutor made against Mr Meegan and on which, of course, I make no findings, the offences arose out of events during which the complainant, also a university student, was participating in a “pub crawl” in Civic during which she met Mr Meegan, a fellow student at the same student residence, and they danced together for a while. They kissed a number of times and then returned to the university by taxi. Mr Meegan, however, invited the complainant to his room for a cup of tea, which invitation she accepted.
Once inside the room, Mr Meegan and the complainant had a conversation then kissed again. Mr Meegan then tried to push the complainant onto the bed but she resisted.
There were further attempts by Mr Meegan to touch the complainant including on her vagina, over her clothes. He then placed his hand inside her jeans but the complainant removed it and sought to move away from him. He then stood up, pulled the complainant’s jeans to her knees, pushed her down on to the bed and after a struggle managed to put his hand on her vagina and later inserted his fingers inside. At the time the complainant was struggling but was unable to prevent it happening. She then ceased to struggle and Mr Meegan was able to put his fingers in her vagina again. Mr Meegan then removed his clothes, put a condom onto his penis and put it into the complainant’s vagina. He then removed his penis from her vagina.
The complainant declined Mr Meegan’s request that she stay the night and his suggestion that she have a shower.
The two had consensual intercourse five or six times over the subsequent weeks, but she ceased to see Mr Meegan in about October 2011.
In September 2012, the complainant heard that Mr Meegan had made application for a position which would put him in authority over young residents of a university college. She disclosed her earlier encounter she had with him to relevant staff. She began counselling and, in June 2013, made a complaint to police.
As a result, police spoke to Mr Meegan on 20 February 2014. He was summonsed on 16 April 2014 to appear in court to answer the charges of sexual intercourse without consent. On 14 August 2014, he was committed to this Court to stand trial.
On 8 September 2014, a number of posters appeared around the campus of the university. They were the posters referred to above (at [2]). A copy of the poster, with identifying information redacted, is attached as an appendix to these reasons.
Mr Meegan also discovered at about the same time a posting on Facebook referring to the matter, containing the same text as on the posters. The post was sent to the friends, family and employer of Mr Meegan.
Mr Meegan has referred the poster and Facebook posting to the university authorities and to the Australian Federal Police.
A senior prosecutor from the office of the ACT Director of Public Prosecutions was telephoned on 10 September 2014 by a person from the university student newspaper and he formed the view that the newspaper was preparing to publish a story about the case.
The Application
Mr Meegan sought an order under s 111 of the Evidence (Miscellaneous Provisions) Act forbidding publication of his name. That section provides:
111 Prohibition of publication of evidence etc
(1)This section applies if a court considers that–
(a) the publication of evidence given, or intended to be given, in a proceeding is likely to prejudice the administration of justice; or
(b) in the interest of the administration of justice the names of any of the following people should not be published:
(i)a party to a proceeding;
(ii)a witness, or intended witness, in the proceeding.
(2)The Court may, at any time during or after the hearing of the proceeding, make an order forbidding the publication of–
(a) the evidence or a stated part of evidence; or
(b) a report of the evidence; or
(c) the name of the party or witness.
(3)The court may make an order under subsection (2) (a) or (b) subject to any stated condition or for any period the court considers appropriate.
(4)If a court makes an order under subsection (2), the court, may, if it considers it appropriate, direct that stated people, or everyone except stated people, remain outside the courtroom for a stated period.
(5)For this section, the publication of a reference or allusion to a person is taken to be a publication of the person’s name if–
(a) the reference or allusion discloses the person’s identity; or
(b) the person’s identity might reasonably be worked out from the reference or allusion.
An order under s 111(2) is, of course, an order of the court and ordinarily disobedience to a court order is a contempt of court. See Australian Meat IndustryEmployees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107.
The Act, however, provides its own sanction, namely by constituting a breach of it to be an ordinary criminal offence. Section 112, which so provides, is in the following terms:
112 Noncompliance with s 111 order
A person commits an offence if the person does not comply with an order or direction under section 111.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
This provision may well have ousted the Court’s jurisdiction to take action for contempt of a breach of an order under s 111 of the Evidence (Miscellaneous Provisions) Act. The absence of a provision such as s 58(3) of the Federal Court of Australia Act 1976 (Cth) may compel that conclusion, but I do not have finally to decide the matter.
It seems to me that the section is a statutory modification to the principle of open justice to which I have referred to above. Thus, the principles to which I have already referred apply.
That is to say, I must balance the principle of open justice with the need to ensure that the administration of justice is protected. It is necessary to identify that interest: see Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 234. There is a very great need to “ensure that a trial is fair, which, for example, includes the need to protect the trial from publications that have a real tendency to prejudice or embarrass them”: see Hinch v Attorney-General for the State of Victoria at 34, 46, 70 and 88. I rely on the principles I have referred to earlier, especially those set out in Director of Public Prosecutions v Williams set out at above (at [38]), the principles that I explained in R v BR at [41]-[42] and those set out in the New Zealand authorities, especially Lewis v Wilson & Horton Ltd, Proctor v The Queen and Abbott v Wallace. Where it is the name of an accused person that is to be suppressed, it seems to me that the threshold is a high one.
Though I have not heard from those who created them, who may be able to negate my otherwise very clear impressions, it seems to me that the poster and the Facebook message are improper publications for they assume what has not been proven, namely that Mr Meegan is guilty of the offence. They, as I have pointed out, may be defamatory and may be a contempt of court. They also seem to be inappropriate because they appear to be designed to create distress for Mr Meegan and harass him, his family and his friends when the criminal justice system under which we conduct proceedings in our civilised society is not to be used as an instrument of harassment in such a manner; punishment must come through the proper channels, the court or other legislated means, and not through such means of individual action. They also seem to be deceitful for they appear designed to suggest that they have an official status or backing when it is clear, at least to me, that they do not. Finally, they seem to me to be cowardly, for they do not set out in them the name of the author or authors, hiding behind anonymity, suggesting that the authors recognise the impropriety, inappropriateness and deceit involved in the publication for which they are not prepared to be held personally responsible.
The question, however, is whether the Court can intervene and, if so, in the manner sought by Mr Meegan. In my view, the Court should not make the non-publication order sought.
The degree of publication already given to the claims about Mr Meegan means that such an order would not achieve the objective that the section is designed to achieve. It would not protect Mr Meegan’s identity; it would only at best protect any further dissemination, particularly in an environment (the university campus) where it has already been widely disseminated.
A breach of any such order may be a contempt of court; it would certainly constitute an offence against s 112 of the Evidence (Miscellaneous Provisions) Act. That, however, would require the identification of the person disseminating the material. At the moment, that has not been determined and it may be difficult to determine, making the order likely to be ineffective.
If, however, such a person could be identified, then that person could be subject to defamation or contempt proceedings. He or she may also be amenable to injunctive relief. These seem to me to be the appropriate proceedings to be taken for the publication, not to limit the open justice principle, which affects all persons who have an entitlement to knowledge of the proceedings in the court.
While there is some risk that persons who see the posters may become members of the jury, that is perhaps unlikely. Students who are in residence at a university college seem to me to be less likely to be from Canberra and thus on the electoral roll here and so less likely to be liable to jury service. See s 9 of the Juries Act 1967 (ACT). That, of course, is by no means certain, but more likely than not.
The dissemination of the posters was not, however, limited to the relevant university student residence but also posted up in the university union. That may lead to possible jurors reading the poster.
Nevertheless, prior to empanelling a jury, the Court makes inquiries of the members of the jury panel as to whether they know anything of the case. It may, in this trial, be prudent to refer to the posters or pre-trial publicity and seek that members of the panel who have seen it be excused. That would reduce the risk that a fair trial would be compromised. As Cummins J pointed out, pre-publicity is not uncommon as a matter that jurors must confront.
Finally, the trial is not set for the near future and the likelihood of irreparable damage seems to me not such as to require extraordinary measures, such as contemplated by this action, be taken.
It may be appropriate that these remarks be drawn to the attention of the trial judge so that appropriate steps can be taken to alert the jury panel to the issue.
It is also important that nothing of what I have said is intended to make a finding that the publication of the poster or the Facebook messages are or are not a contempt of court defamatory. That is not a decision I have made and I do not do so. Such a decision is for another day if the person disseminating the posters is identified.
I am conscious that Mr Meegan is presumed to be innocent, a very important matter that is a foundation of the criminal justice system of this Territory. I am also conscious that the poster ignores that presumption. This is an important factor but not decisive in its own right.
The application must accordingly be refused.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 10 October 2014 |
APPENDIX A
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