R v Mokbel (Ruling No 3)
[2009] VSC 653
•21 August 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1409 of 2008
| THE QUEEN |
| V |
| ANTONIOS MOKBEL |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2009 | |
DATE OF RULING: | 21 August 2009 | |
CASE MAY BE CITED AS: | R v Mokbel (Ruling No 3) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 653 | |
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CRIMINAL LAW – Murder trial – Accused awaiting subsequent trial on drug trafficking charges – Suppression order – Order to remove prejudicial material from websites maintained by 3 media organisations – Whether order futile – Court’s obligation to protect right of accused to fair trial.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney | Solicitor to Director of Public Prosecutions |
| For the Accused (in Murder Trial) | Mr P Morrissey and Ms R Shann | Andrianakis & Associates |
| For the Accused (in the Drug Trials) | Ms G Morgan | Robert Stary & Associates |
| For News Digital Media Pty Ltd | Mr W T Houghton QC with Ms R L Enbom | Kelly Hazell Quill Pty Ltd |
| For Fairfax Digital Ltd | Mr W T Houghton QC with Ms R L Enbom | Minter Ellison Lawyers |
HIS HONOUR:
The accused man, Antonios Mokbel, is charged with the murder of Lewis Moran at Brunswick on 31 March 2004. The jury for the trial of that charge is due to be empanelled on Monday 24 August. In addition, Mr Mokbel has been charged on five other presentments with various charges relating to drug trafficking and the like. The first of those trials is due to commence on 9 November next.
In the trial which is due to commence on Monday and in each of the other trials, an application has been made on behalf of Mr Mokbel that I make an order, the effect of which would be to prohibit the proprietors of The Age, the Herald Sun and The Australian from continuing to display on their websites materials relating to Mr Mokbel which, it is submitted, are highly prejudicial to his right to a fair trial in each of the proceedings to which I have just referred.
It is common ground that each of the three organisations, to which I have referred, maintain websites that, if one accesses each of those websites by searching the name “Mokbel”, one is able to readily access a very large number of articles on each of them previously published by each of the three newspapers relating to Mr Mokbel.
It is submitted on behalf of the accused that by continuing to publish those articles in that way, The Age, the Herald Sun and The Australian is indulging in conduct which is jeopardising the right of Mr Mokbel to a fair trial of the charges against him. I should interpolate that on 15 April of this year I made a number of orders suppressing publication of materials which might contain various allegations which were enumerated in that order. The terms of that order were expressly continued by me on 10 August until further order. The purpose of both sets of orders was, of course, to protect the fundamental right of Mr Mokbel to a fair trial of the charges against him.
Mr Houghton of Queen’s Counsel, who appears with Ms Enbon on behalf of The Age, the Herald Sun and The Australian, has opposed the application made to me on behalf of the accused man. Basically they have made three fundamental submissions to me. First, it is submitted that I do not have the power to make an order of a mandatory-type requiring each of the three organisations to remove the offending material from their websites. Secondly, it has been submitted that, in any event, if I do have such a power, it can only be exercised in circumstances where its exercise is necessary to ensure that Mr Mokbel has a fair trial and it was submitted that that, in these circumstances, is not necessary. Thirdly, it has been submitted that any such order, if I were to make it, would lack any utility.
In support of the first submission, Mr Houghton took me to a number of authorities, principally the decision of the New South Wales Court of Appeal in John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales[1] and to two decisions of our own Court of Appeal, first in the Herald and Weekly Times Pty Ltd v “A”[2] and General Television Corporation Pty Ltd v Director of Public Prosecutions & Ors[3]. It is, of course, beyond argument that this Court has an inherent power to make the type of orders which I made on 15 April, which I extended on 10 August, namely orders which in an anticipatory way would prevent the publication of material which might prejudice the right of a litigant or an accused person to a fair trial of the proceeding. The inherent and indeed statutory power, but particularly the inherent power, of this Court is not confined to suppressing publication of proceedings where necessary which are conducted in the court, but it also, it has been accepted, extends to making orders, the effect of which is to prevent other persons from publishing material which might operate in that prejudicial manner.
[1](2004) 61 NSWLR 344.
[2][2005] VSCA 189.
[3](2008) 19 VR 68.
Mr Houghton accepted those principles as they were based on now well established authority, but he has submitted that the power of this Court is only to make an order of an anticipatory-type and that this Court does not have the inherent jurisdiction to make an order, the effect of which is to compel a third party to carry out an act which might thereby prevent it continuing to act in contempt of this Court.
Mr Houghton did refer me in support of that submission to some parts of the decision in John Fairfax and also to the decision of the Court of Appeal in Herald and Weekly Times v “A”. However, none of the passages to which he referred me contain any reason for such a restriction or indeed indicate that any such restriction exists.
In the course of argument, I postulated to Mr Houghton an example of a case where a person erects a sign on the person’s private property which would have the potential to prejudice the fair trial of an accused person. Mr Houghton submitted that this Court would not have the power to prevent the continued publication of that sign by making an order that it be removed. In my view, he was unable to advance, when challenged, any adequate reason why the court’s power would not extend in a necessary case thus far. Indeed, in my view, it would make a mockery of the inherent jurisdiction of this Court, to protect the right of an accused person to a fair trial, if this Court did not have the power, not only to prevent anticipatory breaches of the right of a fair trial, but indeed continuing and ongoing such breaches.
In this case I accept for the purposes of this application that all of the offending materials, which have been put before me, were posted on the websites of the three organisations before I made the orders on 15 April. However, the fact is that it is the three organisations which themselves control what is and what is not on the websites. It has not been put to me, and indeed it would not have been sensible to have put to me, that the organisations do not have the power to remove those items from their websites or that anyone else does have that power. Thus the continued existence of those items on the websites lies solely within the power of the three respondents to this application.
In my view, this Court does, in its inherent jurisdiction, where necessary, have the power to prevent a continuing contempt of court or a continuing infraction of an accused person’s right to a fair trial and, where necessary, it extends to making the type of order which has been sought on behalf of Mr Mokbel.
The second submission made by Mr Houghton is that if the Court does have such a power, it only extends to doing that which is necessary in order to protect the integrity of the system of justice and specifically to protect the right of an accused person to a fair trial. I accept that that is an accurate and appropriate definition of the limit of the power of this Court. The court does not have any broader power to censure or to restrict what is on people’s websites. However, it does have an inherent power to protect the integrity of its own processes and, in a specific case, to protect the right of an accused person to a trial. The limitation on the exercise of that power is it must do only what is necessary to protect that right.
Mr Houghton submitted that in relation to the trial which is due to commence on Monday after the coming weekend, it would not be necessary for the materials to be removed from the website. He submitted that it is unlikely that a juror would, over the weekend, look at the materials. Once empanelled, jurors would be bound not only by directions given to them but also now by the express prohibition contained in s 78A of the Juries Act. He submitted that, in any event, if there were any slippage from such a direction, it could be cured by appropriate direction by the trial judge and he referred to the well-known principle that jurors are conscientious in adhering to trial judges’ directions in concentrating on the evidence which is called in the trial.
In response, Mr Morrissey, who appears with Ms Shann for Mr Mokbel in the forthcoming trial, submitted that there is a serious risk that potential jurors, if exposed to the materials, would read materials which are highly prejudicial to its client. He submitted that the three websites belong to very respected media organisations; that if members of the public were to read them, that the risk thus coming to pass would be a serious one and a serious infraction of Mr Mokbel’s right to a fair trial. In that respect, his submissions were supported by Ms Grace Morgan who appears on behalf of Mr Mokbel in the five drug trials. She particularly expressed concern that potential jurors, not only in the trial for 9 November but subsequent trials, might in the meantime have access to the materials and if that is the case, then their minds could be polluted. Both Mr Morrissey and Ms Morgan referred to the danger of there being a cumulative effect of any access to that material by reminding and reinforcing the memories of jurors of the voluminous material that was put before me in the stay application.
The issue of necessity, and indeed it does connect with the issue of utility, is not an easy one for me to decide. However, it would seem to me clear that the material which is on the websites of each of the three organisations is material which, if accessed by a member of the public, would be prejudicial to the accused man. I agree, as I have already stated, with the proposition that jurors are amenable to judicial direction and are extraordinarily conscientious in following them. However, having had the melancholy responsibility of reading the vast volume of material which has been published about Mr Mokbel as the forthcoming trial judge in this case, and at the moment is one who has in some way become seised with some control of the drug trials, I am legitimately concerned as to the cumulative effect of any potential exposure of a juror to the materials on the websites.
The question of whether any potential juror in the forthcoming trial, which is to start on Monday, or the future trials, might become exposed to what is on the websites is, of course, problematic and really speculative. However, I do have to take into account that the material is on the public website of respected and widely published newspapers. The Age and the Herald Sun are, of course, the two major newspapers in the State of Victoria and each of them have a long history in this state. It is also fair to say that they each have a distinguished history in this state. The Australian is the major and also a highly distinguished newspaper published nationally. Whilst, as I say, it is perhaps a matter of speculation ultimately whether a potential juror might access the websites, nonetheless, in my view, there is a risk that that might occur and for the test of necessity, in my view, given the standing of each of those organisations, the court should not countenance the coming to pass of that risk unless it was inutile for it to do so. Thus, in my view, the test of necessity is such that, whilst it is difficult to form any educated view as to whether a juror might have become or might become exposed to the material, such is the nature of the allegations against Mr Mokbel in the forthcoming case that it is necessary for the court to intervene if it can.
That really brings me to the issue of a utility. That, again, is a difficult question. Mr Houghton, with some force, points me to the materials, which have been exhibited to Ms Morgan’s affidavit of 6 August 2009, and also the contents of the affidavit of his instructing solicitor, Mr Justin Quill, sworn on this day 21 August. He has made two principal submissions deriving from that material. The first submission is that, irrespective of the materials published on The Age, Herald Sun and The Australian websites, there is in what could be called cyberspace a large amount of material relating to Mr Mokbel which could be accessed in any event. Added to that, he submitted that outside the three websites the contents of some of the articles on the websites have been what he termed “cached”, so that they appear no longer just on the websites but also on other parts of the internet. He, therefore, submitted that if I were to order removal of the material from the three websites, that that would have no utility in protecting the rights of Mr Mokbel.
In my view, notwithstanding the force of those submissions, there are three important considerations which overcome the argument very capably made by Mr Houghton in that respect. Firstly, if the materials to which I have referred were removed from the websites of The Australian, The Age and the Herald Sun, they would be removed from websites, to which, I consider, greater credibility would be attached than most, if not all, of the other websites on the internet. By remaining on the websites of the Herald Sun, The Age and The Australian, the articles are given a greater credibility and greater force than they would otherwise be given. Secondly, at least to a limited extent, if the articles were removed, it would prevent further “caching” of those articles into cyberspace. Thirdly, and in my view significantly, ultimately I do not think it is right for this Court to surrender its obligation to do what it can to protect the right of litigants and accused people before it to a fair trial. To succumb to the King Canute type argument which was put to me by Mr Horton would, in my view, be an appalling abrogation by this Court of its role to uphold the system of justice and to protect the rights of litigants and accused people who come before it. Furthermore, it would, I think, carry with it a clear message that this Court was prepared to countenance and tolerate the type of conduct which has been brought before me in this case.
In my view, this Court must set a standard. Whilst Mr Houghton may accuse me of being King Canute in this respect, I think it would be a shameful day for this Court to surrender its power to do what it can to protect the right of accused people and of litigants before it.
In terms of what order I shall make, no material has been put before me that if I were to make an order, the effect of which would be that the offending material should be removed from the websites, that cannot be complied with, or that it would be very difficult or costly to comply with.
Mr Houghton submits that the terms of order sought by Mr Morrissey are too wide, because they would effectively require each of the newspapers to remove reference to Mr Mokbel from their websites. In my view, to try to give the order any more specific definition would be difficult because of the array of matters which have been published. Further, I do not consider it is necessary to give the order further specificity. The affidavit of Ms Morgan on the stay application of 17 July, and the materials which have been put before me in this application make it likely, if not (I think) inevitable, that all of the materials contained on the website are adverse and prejudicial to the accused. Accordingly, in my view, the harm which is apprehended by the accused which, in my view, provides a sound foundation for making an order in this case, is such as to require an order that each of the three organisations remove from their websites any reference to the accused man Antonios Mokbel.
Finally, in passing, I do note, as I expressed in the course of argument, disappointment that I have been required to make this order and to hear argument in relation to it. The orders which I made on 15 April and which were responsibly acceded to on behalf of the media indicated, I think, in clear terms the type of material about which this Court had concerns and about which it was concerned that there not be ongoing or further publication about Mr Mokbel pending his trials. The cooperation which this Court normally receives, and indeed highly commendable cooperation, from the three respondents to this application, has been regrettably lacking both in maintaining these materials on the website and indeed, when the court’s concerns were drawn to them today, persisting in their opposition to this application.
I have, in the course of argument, raised matters concerning whether the conduct of each of the three respondents constitutes a contempt of court. I have outlined already, for the purposes of the Director of Public Prosecutions, my concerns in that respect. I should say no more in relation to that other than that, in my view, the Director should give consideration to the matters I have raised; and if he, having done so, considers there is a basis to do so, ought to commence proceedings for contempt against the three respondents.
I, therefore, intend to make orders, the effect of which will be to require the three respondents to the application to remove from their websites any articles relating or referring expressly to the accused man, Antonios Mokbel, and that those references remain absent from those websites until further order.
I order that until further order News Digital Media Pty Ltd and Fairfax Digital Limited remove from their websites and not publish on those websites any articles containing references to Antonios Mokbel.
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