R v Ngo, R v Dao, R v Dinh
[2000] NSWSC 976
•7 September 2000
New South Wales
Supreme Court
CITATION: R v Ngo, R v Dao, R v Dinh [2000] NSWSC 976 revised - 2/03/2001 FILE NUMBER(S): SC 70086/98; 70023/98; 70059/99 HEARING DATE(S): 07/09/2000 JUDGMENT DATE: 7 September 2000 PARTIES :
Regina v Phuong Canh NGO,
Regina v Tu Quang DAO,
Regina v David Duy Thai DINH,JUDGMENT OF: James J at 1
COUNSEL : M Tedeschi QC - Crown
J Nicholson SC - Ngo
M Buscombe - Dao
R Hoenig - Dinh
T Blackburn - John Fairfax Publications Pty LtdSOLICITORS: IV Knight - Crown
LMG Solicitors & Attorneys - Ngo
Jackson Smith - Dao
S Mullany - LAC - Dinh
Mark Polden - John Fairfax Publications Pty Ltd
DECISION: Application granted
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONJAMES J
THURSDAY 7 SEPTEMBER 2000
70086/98 - REGINA v PHUONG CANH NGO
JUDGMENT
70023/98 - REGINA v TU QUANG DAO
70059/99 - REGINA v DAVID DUY THAI DINH
1�� HIS HONOUR: This is an application brought by the Crown in criminal proceedings against three accused, Phuong Canh Ngo, Tu Quang Dao and David Duy Thai Dinh. Each of the accused is charged with the murder of John Newman, a member of the State Parliament, on 5 September 1994. There have so far been two trials of the murder charges. The first trial was aborted after it had run for a number of weeks. After the second trial the jury was unable to agree and the jury was discharged without reaching any verdict.
2�� Separate trials of the accused Mr Ngo and the accused Mr Dao on the one hand and the accused Mr Dinh on the other have been fixed to commence on 29 January 2001. Those trials will be the third trials of the charges.
3�� On or about 23 August this year the Director of Public Prosecutions filed a notice of motion in which the Director sought the following orders:
1. That at the trial of Phuong Canh Ngo and Tu Quang Dao which is due to commence on 29 January 2001, access to the public and press gallery be restricted to persons approved by the court.
2. That the Sheriff provide transportation for the jurors to and from court in a manner deemed appropriate by the Sheriff.
3. That from the time the jury retire to consider their verdicts until the verdicts being returned the jury are to be sequestered.
4. This application to be heard in camera.
4�� This application was supported by an affidavit sworn on 23 August 2000 by Naguib Kaldas, a detective superintendent of police who is the senior investigator in the task force investigating the death of Mr Newman.
5�� In pars 2 to 4 of his affidavit Mr Kaldas refers to a series of previous affidavits, including a number of affidavits by persons who either gave evidence at previous trials of the accused or made statements to the police in connection with the investigation into the death of Mr Newman.
Paragraph 12 is in the following terms:
"On 11 May 2000 I was contacted by a man who told me he was the foreman in the jury in the trial of Mr Newman and he said words to the effect, 'I and the members of the jury would like to meet you in person for a discussion'."
6�� In par 13 Mr Kaldas said that he received advice in relation to appropriate police conduct when an approach was made to a police officer by jurors from a former trial.
7�� In par 14 of his affidavit Mr Kaldas said that on 25 May he, together with another police officer, had a meeting with the foreman of the jury and seven other jurors at the second trial. Mr Kaldas says that during this meeting neither he nor the other police officer solicited any information.
8�� In pars 15 to 22 of the affidavit Mr Kaldas said that allegations had been made to him and the other police officer by members of the jury at the second trial concerning the conduct of another member of the jury.
9�� The application which is presently before me was brought today by the Director of Public Prosecutions. The orders sought in the notice of motion are that:
1. There be no publication of the content of pars 12 to 22 of the affidavit of Mr Kaldas of 23 August, and
10�� 2. There be no publication of the contents of any conversations between Det Kaldas and any former jurors in the trial of Mr Ngo and Mr Dao.
11�� The present application is supported by a further affidavit by Mr Kaldas of 7 September. In this further affidavit Mr Kaldas deposes to having received a telephone call on 6 September from Mr Goodsir who is the chief of staff at the Sydney Morning Herald newspaper. In this affidavit Mr Kaldas gave evidence of the conversation which ensued between himself and Mr Goodsir.
12�� In par 4 of the affidavit Mr Kaldas said that in the conversation Mr Goodsir said words to the effect, "I am aware of an affidavit made by you in relation to police having contact with the jury in the Newman murder after the conclusion of the trial".
13�� Mr Kaldas gave brief oral evidence on the hearing of this application and produced notes he made in the conversation. In part of these notes Mr Kaldas wrote "He", that is Mr Goodsir, "said he was aware of an affidavit made by me in relation to this matter".
14�� On the hearing of this application the Crown and each of the three accused were represented by counsel and Mr Blackburn of counsel appeared for John Fairfax Publications Pty Limited, to whom notice of the application had been given.
15�� At an early stage in the proceedings I asked the senior Crown Prosecutor who was appearing for the Crown, whether I should make an order for the closing of the court. The senior Crown Prosecutor said he was not seeking such an order. In his submissions the Crown Prosecutor submitted that either I should make orders in accordance with pars 1 and 2 of the notice of motion of 7 September or, alternatively, without making orders I should make requests to the media or at least to John Fairfax in accordance with pars 1 and 2 of the notice of motion.
16�� The submissions of the Crown were generally supported by counsel for the three accused. The senior Public Defender who is appearing for Mr Ngo said that his client would not seek an order or a request that there be no publication of pars 12 to 14 of Mr Kaldas' affidavit of 23 August but that I should make an order prohibiting publication of pars 15 to 22 of Mr Kaldas' affidavit. A similar submission was made by counsel appearing for Mr Dao.
17�� Mr Hoenig, who appeared for Mr Dinh, submitted that I should make an order prohibiting publication of any part of Mr Kaldas' affidavit.
18�� Mr Blackburn, on behalf of John Fairfax Publications Pty Limited, submitted that there are fundamental rules of the administration of justice - that it should take place in open court, that except in very limited classes of case the court should not sit in camera and that this court had no power to make an order suppressing publication of evidence adduced in a court which had not been closed. Alternatively he submitted that even if there was a power to make an order of the kind sought by the Crown and the accused, such a power should be exercised only in wholly exceptional circumstances and that the present circumstances did not meet that criterion.
19�� After Mr Blackburn had made his submissions, I asked the Crown and the representatives of the accused whether in their submission a request would be sufficient or whether they would press for the making of an order. I was informed by the Crown and the representatives of the accused that they wished to press for the making of an order, as distinct from the making of a request.
20�� I have been referred to a number of authorities on whether this court has power to make an order of the kind sought. The position is complicated by the fact that neither the Crown nor any other party sought the making of an order for the closing of the court.
21�� As I have already noted, the application which was filed on or about 23 August seeks in par 4 an order that that application be heard in camera. That application is fixed for hearing before another judge of this Court on 3 October.
22�� I have formed the conclusion that, notwithstanding that no order has been made for the closing of the court, I would have power to make an order of the kind sought, if I considered that the making of such an order was justified in the circumstances. I rely particularly on a judgment of Mahoney JA in Attorney General of New South Wales v Mayas (1998) 14 NSWLR 342 especially at p 345.
23�� At p 345 his Honour referred to two basic principles affecting the proceedings of the court - firstly that the proceedings should be open to the public and secondly that what takes place in these proceedings may be the subject of a fair and accurate report and discussion.
24�� However, his Honour went on to say that those principles are not absolute but are subject to qualifications which his Honour compendiously described as "the Scott qualification". His Honour said "Oversimplified, the Scott qualification authorises the court to depart from these principles if it is necessary to do so in order that justice be done in accordance with the law". His Honour said:
"The Scott qualification can authorise both in camera and non-publication orders. A non-publication order may be made for the purposes of making effective the exclusion of the public when an order is made that proceedings be heard in camera".
25�� However, his Honour also said, "A non-publication order may also be made for other reasons".
26�� I am prepared to accept that there is a power to make a non-publication order, even in the absence of making an order that proceedings be heard in camera.
27�� The existence of such a power was doubted by Kirby P in Raybos Australia Pty Limited v Jones (1985) 2 NSWLR 47 at 55 to 57. However, his Honour ultimately decided that in the particular case it was unnecessary and undesirable to determine finally the question of the existence of any power to make an order of the kind sought in the case.
28�� Accepting that I have power to make an order of the kind sought, the question arises whether in the circumstances of the present case I should make such an order.
29�� I have already referred to the submission made by Mr Blackburn, which I accept, that even if there is such a power, the power should be exercised only in an exceptional case. It seems to me that the present case can truly be described as exceptional. The alleged victim in the murder proceedings was a serving Member of Parliament at the time of his death. There have already been two trials, the first lasting a number of weeks and the second lasting, as I understand it, a number of months, which have not produced any result.
30�� Although there is no actual evidence before me - this application having been brought on as a matter of extreme urgency - I consider that I can take into account the widespread publicity which was given at the time of the second trial to the extraordinary measures taken in an endeavour to preserve the integrity of the jury, including transporting the jury to and from the court and sequestering the jury during their retirement, a step which nowadays is rarely taken.
31�� In my opinion, publication of the circumstances that there has been a meeting between officers of the Police Service who are members of the task force investigating the death of Mr Newman and a number of persons who were members of the jury at the second trial and that the members of the jury supplied information about extraordinary conduct by another member of the jury at the second trial, carries a serious risk of prejudicing the third trial of the murder charges.
32�� In the circumstances I consider that I should make an order. I do not consider that I should make any distinction between pars 12 and 14 of Mr Kaldas' affidavit on the one hand and pars 15 to 22 on the other. The publication of the fact that there has been a meeting between the police officers engaged in the investigation and members of the jury at the second trial without any publication of what was discussed at the meeting, would carry the risk, in my opinion, of giving rise to speculation about what it was that was discussed at the meeting and would be fraught with the risk of prejudicing a fair trial.
33�� The application filed on or about 23 August is due to come before another judge of the Court, who I understand is likely to be the trial judge at the third trial, on 3 October. It seems to me that I should limit the duration of an order, so that the order will endure only up to and including 3 October.
34�� At one stage in the submissions the senior Crown Prosecutor, in lieu of an order in terms of par 1 of the application, sought an order that there be no publication or broadcasting in the media of the contents of pars 12 to 22 of the affidavit of Mr Kaldas. I have been referred by Mr Blackburn in this connection - and indeed in other connections - to a decision of the Court of Appeal in John Fairfax & Sons v The Police Tribunal (1986) 5 NSWLR 465 especially at 476 to 477. It seems to me that what McHugh JA said at 476 and 477 throws serious doubt on my power to make an order directly binding on the media or on people generally, although his Honour went on to say:
"Conduct outside the court...may constitute a contempt of court".
35�� I consider that I should also make an order prohibiting the publication of the proceedings in court today.
36�� I have indicated that I am prepared to make an order. I make orders:-37�� 3. That up to and including 3 October there be no publication of any part of today's proceedings."
"That up to and including 3 October 2000 there be no publication of the contents of pars 12 to 22 of the affidavit of Det Nick Kaldas sworn 23 August 2000. This order does not apply to the legal representatives of the accused or the Crown in their preparation for the hearing of the application on 3 October.
2. That there be no publication of the contents of any conversations in pars 12 to 22 of the affidavit of Det Kaldas sworn on 23 August 2000. This order does not apply to the legal representatives of the accused or the Crown in their preparation for the hearing of the application on 3 October.
**********
0
2
0