R v Perish

[2011] NSWSC 1102

Supreme Court

New South Wales

Medium Neutral Citation:	R v PERISH; R v LAWTON; R v PERISH [2011] NSWSC 1102
Hearing dates:	2 February 20113 February 20117 February 20119 February 2011
Decision date:	16 February 2011
Jurisdiction:	Common Law - Criminal
Before:	Price J
Decision:	The application by Nationwide News Pty Limited, News Digital Media Pty Limited and Fairfax Media Publications Pty Limited to vacate the orders is dismissed.
Catchwords:	CRIMINAL LAW - jurisdiction - practice and procedure - application to vacate internet take down orders - articles highly prejudicial to accused - right of accused to fair trial - jurisdiction of Supreme Court - whether orders futile - onus of proof - jury directions - whether orders reasonably necessary to ensure a fair trial.
Legislation Cited:	Jury Act 1977 Supreme Court Act 1970
Cases Cited:	Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49; (2008) 19 VR 68 Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 Her Majesty's Attorney-General in and for the State of New South Wales v Time Inc Magazine Company Pty Limited [1994] NSWCA 134 Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 News Digital Media Pty Ltd v Antonios Sajih Mokbel [2010] VSCA 51 Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 R v Jamal [2008] NSWCCA 177; (2008) 72 NSWLR 258 Riley McKay Pty Ltd v McKay (1982) 1 NSWLR 264 State Drug Crime Commission (NSW) v Chapman (1987) 12 NSWLR 447
Category:	Interlocutory applications
Parties:	Crown Anthony John Michael Perish Andrew Michael Perish Matthew Robert Lawton Nationwide News Pty Limited (First Applicant) News Digital Media Pty Limited (Second Applicant) Fairfax Media Publications Pty Limited (Third Applicant)
Representation:	D R Sibtain (Applicants) P A Leask (Crown) C A Davenport SC (Anthony Perish) W Terracini SC with J Trevallion (Andrew Perish) S Hanley SC (Matthew Lawton) Blake Dawson (Applicants) Director of Public Prosecutions (Crown) William O'Brien & Ross Hudson Solicitors (Anthony Perish) Archbold Legal Solutions (Andrew Perish) Matouk Joyner Lawyers (Matthew Lawton)
File Number(s):	2009/148002 2009/145260 2009/150111

Judgment

1. Anthony Perish and Matthew Lawton are both charged with the murder of Terrence Falconer. Andrew Perish is charged with conspiring to murder Terrence Falconer. All three are to stand trial together in this Court.

1. On 2 February 2011, Ms Davenport SC for the accused Anthony Perish, made an ex parte application to have certain news articles removed from the internet. I made the following orders (the internet orders):

(1)   "The article from the Daily Telegraph entitled 'Grandson seized over chopped body in restaurant raid' dated 20 January 2009 and the article from the Daily Telegraph entitled 'New murder charge for Anthony Perish a farce' dated 29 January 2009 be immediately removed from the Daily Telegraph website 'dailytelegraph.com.au'.

(2)   The article from the Sydney Morning Herald entitled 'Anthony Perish to face murder charge' dated 29 January 2009 be immediately removed from the Sydney Morning Herald website 'smh.com.au'.

(3)   The article from The Australian entitled 'Murder of Bikie Gregory Haystacks McDonald leads to trail of killings' dated 21 February 2009 be immediately removed from The Australian website 'theaustralian.com.au'

(4)   The article from The Age entitled 'Man admits two shootings, kidnapping' dated 4 June 2009 be immediately removed from The Age website 'the age.com.au'.

(5)   I direct that these orders be taken out forthwith and be served by 4pm on 2 February 2011 by the legal representatives for Anthony Perish upon the editors of the respective newspapers."

1. On 3 February 2011, Mr Trevallion for the accused Andrew Perish, made an ex parte application to have certain news articles removed from the internet. I made the following orders (the internet orders):

(1)   "I direct that the article entitled 'Jail bird brother Andrew Perish charged on murder plot' dated 5 February 2009 from The Daily Telegraph be immediately removed from the website 'news.com.au'.

(2)   I direct that the article entitled 'A tangled web of murders and deadly plots' dated 22 January 2009 be immediately removed from the website '

(3)   These orders are to be taken out forthwith and served by 4pm on 3 February 2011 by the legal representatives for Andrew Perish upon the editors of the respective newspapers."

1. The articles in question had been published in 2009. They contain material that is highly prejudicial to Anthony and Andrew Perish. The articles, inter alia , associate the accused with various crimes for which they are not standing trial and have not been charged and with 'bikie gangs' and drug dealing. I formed the view that it was necessary to make the internet orders for the removal of the articles to ensure that the accused received a fair trial. At the time that the internet orders were made, the expectation was that the jury was to be empanelled on Monday 7 February 2011, but due to the ill health of the Crown, the trial has been postponed until 21 February 2011.

The Articles

1. In the case of Anthony Perish, the articles are annexed to the affidavit of Danielle Roth, his solicitor. The two articles of concern to the fair trial of Andrew Perish were marked as MFI C. For present purposes, it is sufficient to refer to the articles succinctly.

1. The articles New Murder Charge for Anthony Perish 'a farce', and Grandson seized over chopped body in restaurant raid each link the arrest of Anthony Perish to over nine murders and two attempted murders being investigated by police strike force Tuno II in Queensland and New South Wales. The first article refers to Anthony Perish as the "kingpin of a group being investigated for multiple murders" and recites that he is facing a "fresh murder charge". The inference arises that Anthony Perish has been previously charged with murder.

1. The article Anthony Perish to face murder charge recites that Terrence Falconer's killing is one of seven murders, three suspected murders and two attempted murders between 1993 and 2008 in NSW and Queensland being investigated by police strike force Tuno II. It also recites that crimes being investigated by the strike force are all drug-related.

1. The article Murder of bikie Gregory Haystacks McDonald leads to trail of killings commences by detailing the drug related murder of Mr McDonald and the belief of detectives in strike force Tuno that Mr McDonald was "the first victim in a killing spree which appears to be linked to one of the biggest amphetamine manufacturing rackets ever run on the east coast of Australia". The article refers to the death of Anthony Perish's grandparents and alleges that it was drug related. It recites that Anthony Perish was named as a person of interest at the inquest into the murders of his grandparents and then alleges that he evaded police for 14 years, stating that police eventually found him "living in an armour-plated room of a fortified house in the far west of Sydney". The article then details other bikie-related murders.

1. The article Man admits two shootings, kidnapping focuses on Witness E (who pleaded guilty in 2010 to the murder of Terrence Falconer and Raniera Puketapu). It recites that Witness E kidnapped Falconer at the request of Anthony Perish who wanted to question him. It also alleges that Witness E shot Raniera Puketapu by accident after conspiring with Anthony Perish to murder former Bandidos bikie member Felix Lyle and his son Dallas Fitzgerald.

1. The article Jailbird Brother Andrew Perish charged on murder plot links Andrew Perish to the investigation of ten murders or suspected murders and two attempted murders being investigated by strike force Tuno, including the shooting of the Perish brothers' grandparents. It also recites that the accused "is serving time in jail for unrelated drug matters".

1. The article A tangled web of murders and deadly plots details the work of strike force Tuno and the deaths of Anthony Sr and Frances Perish. It recites that the more police "delved into Falconer's background, the more officers became drawn into a world of organised crime leading to other victims and suspects in what they allege is a series of murders, suspected murders, attempted murders, and planned hits linked by common threads". The article mentions that the inquiries of the strike force included "the suspected murder of Ian Draper, who had allegedly witnessed the fatal bashing of a man by Andrew Perish". Mr Draper, the article recites, "is believed to be one of the innocent victims in these crimes". He was last seen near Cabramatta in August 2001, "his burnt-out car was found, but he has never been seen again". The article then recounts that "Andrew Perish, who the inquest into his grandparents death heard once had links with a motorcycle gang, was charged over the alleged pub bashing, but acquitted".

Further Articles

1. During the hearing of the application to vacate, Mr Terracini asked that a further two articles be added to the internet orders for Andrew Perish. The article Fourth arrest in Falconer murder (ex 2 on the application of Andrew Perish) , published 5 February 2009 in the Liverpool Leader refers to Andrew Perish being "currently in prison for other unrelated matters". It associates Andrew Perish with murders with which he has not been charged by reciting that "Tuno officers" are investigating ten murders or suspected murders including the murder of the Perish brothers' grandparents and the suspected murder of Ian Draper.

1. The article Couple's murder tied to Bikie death (ex 1 on the application of Andrew Perish) , published on 25 May 2008 in the Sun Herald recites that the NSW Crime Commission's "assistant director told the Sun Herald" that Mr Draper's "suspected death" had been included in the reference when it was learnt "he had witnessed a fatal hotel bashing for which Andrew Perish had been charged but acquitted".

1. On 4 February 2011, a notice of motion was filed on behalf of Matthew Lawton seeking orders that the proper officer of the St George and Sutherland Shire Leader remove the article Three to stand trial for Falconer murder from their website. This article, which was published on 18 June 2010 is annexure A to the affidavit of Elias Matouk. The article recites that Matthew Lawton is Anthony Perish's "right hand man" and "himself is high in the hierarchy of the Rebels Motorcycle gang". According to Mr Matouk, who is Mr Lawton's solicitor, the Crown will not allege during the trial that Mr Lawton had any such relationship. The Crown has not suggested otherwise.

The Application to Vacate

1. By notice of motion dated 7 February 2011, Nationwide News Pty Limited, News Digital Media Pty Limited and Fairfax Media Publications Pty Limited (the applicants) seek an order that the orders made on 2 and 3 February be vacated and that an application by Matthew Lawton for further orders be dismissed.

1. Nationwide News Pty Limited publishes the Daily Telegraph and The Australian. News Digital Media Pty Limited is the publisher of news.com.au. Fairfax Media Publications Pty Limited is the publisher of the Sydney Morning Herald, the Age and the St George and Sutherland Shire Leader.

1. The Applicants were represented by D R Sibtain. Anthony Perish was represented by C A Davenport SC. Andrew Perish was represented by W Terracini SC with J Trevallion. Matthew Lawton was represented by S Hanley SC. The Crown was represented by P A Leask.

Matters of Evidence

1. In an affidavit sworn 1 February 2011 Danielle Roth stated that on 31 January 2011, she entered the words "Anthony Perish" into the Google search engine and selected Australian websites. The search returned approximately 6,930 results. The first 10 results were links to media articles and included the articles annexed to her affidavit.

1. Nicholas Klein, who has 14 years experience in information technology, gave evidence in the applicants' case. He explained that once material is published on an organisation's website "others can capture, copy, modify and disseminate the material on their own web servers". The original publisher would then not have control over that material insofar as it exists on a third party's web server. So far as concerns each of the applicants, anyone who wishes to access their published news stories, can either view the material on the applicants' websites or can search via internet search engines, such as Google, Yahoo! and Bing. Mr Klein stated at par 14 of his affidavit, sworn 7 February 2011 (KA):

"The mere fact that a news story is removed from the primary website on which it was originally published does not mean that it is any more difficult for users of the internet to find facsimile copies, extracts from or variations of that news item located elsewhere".

1. From the information contained in Ms Roth's affidavit, Mr Klein observed that any web pages containing the articles that Google categorised as being outside the Australian internet, would not be included in the results obtained by Ms Roth. He considered that an Australian internet user would have no difficulty in searching for that foreign content. Mr Klein stated that a search conducted by a search engine other than Google may yield other results when the same search term is conducted and the use of a different search term "may yield an even broader set of results, some of which may be relevant": KA par 15. Mr Klein opined (KA par 16):

"... the only way to make all stories unavailable to a user who chooses to search for them would be to remove every single one from the internet".

1. During cross-examination, Mr Klein accepted that of the 6,930 results, a large proportion of those could refer to "Anthony Perishes", other than the accused and he did not know what the content of those results would be, save for the articles that had been provided to him. He expected it would be neither a difficult nor costly process for the articles to be removed from the applicants' websites. He also expected it would be easy for the articles to be placed back on those websites at the end of the trial.

1. In re-examination, he testified that, assuming the articles appeared in the top 10 hits of 6,930 hits, "the remaining hits would be promoted up to the first page of the results, and another article would take their place": T61.28-9.

1. It is convenient to mention here the applicants' criticism of there having been no enquiry by Anthony Perish as to whether any of the articles had been replicated anywhere else and, if so, how many times. The issue of the lack of utility of the relief sought is, however, advanced by the applicants as a reason for the orders to be vacated and, to my mind, any such material should have been placed into evidence by them. I do not think that the criticism is justified. I should add that there is no evidence as to how many of 'the hits' on the Google website obtained by using the accused's name related to the accused or, if they did, contained material that was prejudicial to him. Furthermore, there is no evidence as to the number of results that a search engine would produce when the words "Andrew Perish" or "Matthew Lawton" are keyed in.

1. It is evident, however, from Mr Terracini's application to add the articles Couples murder tied to Bikie death (ex 1 on the application of Andrew Perish), and Four arrested in Falconer murder (ex 2 on the application of Andrew Perish), that there is other material prejudicial to the accused on the internet which has not been identified. The location, content and quantity of that material cannot be determined on the evidence. What is clear is that the identified articles in the cases of each of the accused can easily and cheaply be removed by the applicants from their websites and restored without difficulty or cost when the jury reaches its verdicts.

Argument

1. The applicants do not contest that the articles, the subject of the orders, have the potential to be highly prejudicial to the accused. Mr Sibtain's argument that the orders should not have been made was essentially based on the following grounds:

(1)   On the evidence, the orders lacked practical utility;

(2)   Orders which might have achieved the desired result would have been beyond power;

(3)   The orders were unnecessary and there was no material before the Court upon which the Court would conclude that they were necessary.

1. Mr Sibtain submitted that the orders should not have been made on an ex parte basis without a return date so that the validity of the orders could be tested by argument. This contention is undoubtedly correct and the oversight was rectified by hearing the present application at the earliest convenient time.

1. Another argument advanced for the applicants is that they should not be placed in a situation less favourable than any other local or foreign hosts of the applicants' material. Mr Sibtain appeared to be raising as a matter for consideration the applicants' commercial interests. I would reject this submission. There is no evidence that the applicants' businesses will suffer because of the orders made. I do not think, as a matter of commercial reality, that the removal of archival material for a short period will have an adverse impact upon the applicants. In any event, a consideration of whether the orders should be made does not require a balancing exercise to be undertaken between the commercial interests of the applicants and the right of the accused to a fair trial. I would add that none of the applicants' arguments in opposition to the internet orders were founded upon the principle of open justice.

1. A further argument was developed by Mr Sibtain during oral submissions. He contended that the orders impact upon the freedom of speech by assuming that "one is only ever able to maintain the publication of material that is contemporaneous": T65.4-6. This argument can be readily rejected as the orders made are not general in nature but specifically target identified, mature material of a prejudicial nature. Furthermore, it was made plain to the applicants during the hearing that the removal of the articles would be confined to the course of the trial, which is anticipated to take about six weeks.

1. It was Mr Sibtain's contention that the orders lacked practical utility as the evidence revealed the existence of almost 7,000 hits from Australian web pages alone concerning Anthony Perish. Counsel was referring here to Ms Roth's evidence that when she entered the words "Anthony Perish" into the Google search engine and selected websites from Australia, the search returned 6,930 results. Mr Sibtain pointed out that only a handful of articles were ordered to be taken down from nominated Uniform Resource Locators (URLs) and the only available inference is that the vast body of material referring to Anthony Perish would remain available to any person who might seek it, notwithstanding that the material may be located outside Australia or on websites maintained by persons other than the original publishers.

1. Mr Sibtain put to me that to achieve any practical utility, it would have been necessary to make orders binding people generally concerning the maintenance of prejudicial material of and concerning the accused. Such an order would be beyond power.

1. The orders were unnecessary, it was argued, given the absence of practical utility and, perhaps more importantly, the fact that the directions given to the jury, the effect of s 68C of the Jury Act 1977 and the robustness of jurors are all that are necessary to ensure a fair trial and the proper administration of justice. Mr Sibtain cited what was said in R v Jamal (2008) 72 NSWLR 258 by Spigelman CJ (with whom Simpson J and I agreed) at 261 - 262 and referred to this as his "killer punch".

1. Particular reliance was also placed by the applicants on the decision of the majority (Warren CJ and Buchanan JA) in News Digital Media Pty Ltd v Antonios Sajih Mokbel [2010] VSCA 51. The Court's attention was also drawn during argument by the applicants' counsel to the following cases: John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465.

1. Ms Davenport emphasised in argument that the orders were sought as the articles linked Anthony Perish with offences other than the murder for which he was to stand trial. She submitted that confidence in the integrity of juries did not mean that the court should abandon its role of protecting jurors and cited what was said in Mokbel by the majority at [73]. Ms Davenport put to me that the court will give appropriate directions to the jury, but if there was anything further that could be done to ensure a fair trial, then it should be done.

1. Mr Terracini argued that there was nothing advanced by the applicants that would persuade the court from the duty to do its best to ensure a fair trial. He submitted that the applicants were not primarily interested in ensuring a fair trial but had their own interests at heart, which had nothing to do with the jury system. Warnings are given to jurors, Mr Terracini said, because "there are instances, well known in appeals, where jurors have not complied with the judicial directions": T80.39-41. Abandoning an effort to try to protect jurors, Mr Terracini submitted, should not be indulged in. He reiterated that the articles were plainly prejudicial and were "inaccurate, archival material": T78.19.

1. Mr Hanley submitted that there is real utility in the removal of the one article that Mr Lawton seeks. The applicants had not adduced evidence that the article had been syndicated or spread any further throughout the internet. Furthermore, the article was inaccurate and had inherent prejudice that went to motive that was not asserted by the Crown. The removal of the article would not intrude on the ability of organisations to engage in free debate.

1. Unsurprisingly, Mr Leask affirmed that the Crown has an interest in the accused having a fair trial. He pointed out that the present case could be distinguished from Mokbel as the accused were not making a blanket application for the suppression of publication generally but for those articles that had been precisely identified, were inaccurate and archival.

1. I interpolate here to note that none of the defence counsel are adverse to accurate reporting of the arrest or charging of the three accused, nor are they adverse to the evidence in the trial being reported.

Decision

1. It is settled principle that courts have an inherent jurisdiction to control the criminal process and protect the fundamental right of the citizen to a fair trial: see for example Jago v The District Court of New South Wales (1989) 168 CLR 23; Dietrich v The Queen (1992) 177 CLR 292. In John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 , Spigelman CJ said at 353:

"The principle of a fair trial has been characterised in numerous High Court judgments in the most forceful of terms. It has been described as "the central thesis of the administration of criminal justice": McKinney v The Queen (1991) 171 CLR 468 at 478; as "the central prescript of our criminal law": Jago (at 56); as a "fundamental element" or a "fundamental prescript": Dietrich v The Queen (1992) 177 CLR 292 at 299, 326; and as an "overriding requirement": Dietrich (at 330). It is not a new principle. As Isaacs J put it in 1923 with reference to "the elementary right of every accused person to a fair and impartial trial": "Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle": R v MacFarlane; Ex parte O'Flanagan & O'Kelly (1923) 32 CLR 518 at 541-542.

There is no aspect of preparation for trial or of criminal procedure which is not touched by, or indeed determined by, the principle of a fair trial. As Lord Devlin once put it: "... [N]early the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their power to see that what was fair and just was done between prosecutors and accuseds ": Connelly v Director of Public Prosecutions [1964] AC 1254 at 1347."

1. Section 23 of the Supreme Court Act 1970 confirms the inherent jurisdiction of the Supreme Court: John Fairfax Publications Pty Ltd v District Court of New South Wales at 353, but does not increase it. The Court's power does not exceed what is necessary for the administration of justice: Riley McKay Pty Ltd v McKay (1982) 1 NSWLR 264 at 270. The test of necessity applies to the exercise of the inherent power to make orders.

1. The applicants drew my attention to what was said in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 by McHugh JA at 476 - 477 in relation to the power to make a non-publication order:

"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".

1. Although the ratio decidendi in John Fairfax & Sons Ltd v Police Tribunal of New South Wales was concerned with a statutory tribunal and not with the inherent powers of superior courts to ensure a fair trial, I accept that my power to make orders in the nature of the internet orders is no wider than is reasonably necessary to secure the object of ensuring that justice is done.

1. The term "necessary" does not have the meaning of "essential", rather it is to be "subjected to the touchstone of reasonableness": Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 452. The concept as to what reasonably is necessary is to be approached in a common sense way: State Drug Crime Commission (NSW) v Chapman (1987) 12 NSWLR 447 at 452 per Allen J. There must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order removing material from the internet and prohibiting publication of that material during the trial. Mere belief that the order is necessary is insufficient.

1. Questions of utility may impact upon the necessity of making an order. In Mokbel where the court orders directed News Digital Media Pty Ltd "to remove from their website and not publish any articles containing references" to the offender, Warren CJ and Byrne AJA took into account in setting aside the order that a determined searcher would not be prevented from accessing a "cached website". Their Honours said at [94]:

"We respectfully doubt the necessity for making that part of the order requiring the applicants take down the material from their websites provided the articles, the subject of the order, were no longer sufficiently current or were not presented in such a way as to be forced upon a visitor to the site who was not searching for them. We are of the opinion that a juror in this case would not be likely to have inadvertently come across material adverse to Mr Mokbel which was archived and not readily available to such a visitor. Nor do we readily accept that a juror would deliberately set about searching for such material in defiance of the trial judge's warning and direction. Moreover, if, as evidence shows, the removal of the offending material did not prevent a determined searcher from accessing the same material from a cached website, it cannot be said that the order was necessary for the protection of the court process with respect to Mr Mokbel's pending trials. In any event, in its terms, the order which deals with 'any Articles containing reference to Antonios Mokbel' went far beyond that which might reasonably be required to protect that process. We conclude that the circumstances before his Honour did not disclose a necessity for the making of this part of the internet order. This part of the order should, therefore, be set aside."

1. The inability of a court to remove all offending material does not necessarily lead to a conclusion that the provision of the relief sought would be futile. In General Television Corporation Pty Ltd v Director of Public Prosecutions, the Victorian Court of Appeal (Warren CJ, Vincent and Kellam JJA) recast an internet order so that it was specifically directed at the applicant in that case and the website within its control notwithstanding that there was a deal of material which would otherwise be available on the internet. The Court said at 88:

"It is appropriate to observe that Order 2 above is directed at the applicant and specifically at one aspect of a website within its control. We recognise that there is a considerable amount of material upon the internet which may be seen to relate whether accurately, or otherwise, to the matters which will be the subject of the trial. Indeed it was acknowledged by counsel for the applicant that Channel 9 appreciated that once the program was broadcast nationally on 13 February 2008 there is a high likelihood that it would be downloaded from the internet and available worldwide to those who could access it. As observed by the High Court in Dow Jones & Company Inc v Gutnick, once an item is on the internet it is "available to all and sundry without any geographic restriction". This circumstance was entirely of the applicant's own making. Obviously the immediate accessibility of such information will require clear directions from the trial judge to the jury. As has been observed in other cases, this accessibility poses substantial challenges for the administration of justice."

1. In Her Majesty's Attorney-General in and for the State of New South Wales v Time Inc Magazine Company Pty Limited [1994] NSWCA 134, Time, the publisher of the journal WhoWeekly argued that an order requiring it to retrieve copies of the offending edition of the journal should not be made as the Attorney-General had failed to establish that Time had effective control over distributors in whose hands the published material was located. Kirby P (with whom Handley and Sheller JJA agreed) said in rejecting the argument at 9:

"I cannot agree that the orders which are sought by the Attorney-General in this case would be futile if made. I would be loath to assume that this Court is without an effective remedy to defend its process in circumstances such as have arisen in this case. In any case, O.1 as sought would, at the least, deal with the copies of the issue of WhoWeekly which were returned to Time ."

1. In the present case, I do not know what other material prejudicial to the accused is on the internet. I do know that the internet orders have removed the prejudicial articles from the specified websites. The fact that the removal of the entirety of prejudicial material from the internet cannot be achieved does not mean that the provision of the relief sought lacks practical utility. The orders in this case are markedly different to those that were considered in Mokbel as specific articles have been identified. I would reject the applicants' argument that the orders lack practical utility.

1. There is another matter I should mention. On 9 February 2011, I directed the Registrar of this Court to contact and make representations to the search engines, namely, Google , Yahoo and Bing! to block access to the articles in the cases of each of the accused. Should the representations be successful, the utility of the internet orders that I have made will be enhanced.

1. I would also reject the applicants' second argument. The orders do not seek to remove all prejudicial material from the internet but are confined to the articles that have been identified.

1. The applicants' third argument, which raises the issue of necessity, remains. Is it reasonably necessary to make orders removing the articles from the applicants' websites and prohibiting publication of those articles during the trial to ensure that each of the accused has a fair trial?

1. In answering this question, it must be assumed that the jurors will comply with their obligations under the Jury Act 1977, particularly s 68C and with the directions given during the trial. In Gilbert v The Queen (2000) 201 CLR 414 at 425, McHugh JA said at 425:

"Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials"

1. As was said by Spigelman CJ in Jamal at 261 - 262:

"I have had occasion to summarise the relevant case law in the following manner, applicable to the present case, in John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at 366: There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them.

There are now numerous judicial statements as to the validity of such an approach."

1. My directions to the jury will, relevantly, include:

"It is of fundamental importance that your decisions in this trial are based only on what you hear and see in this courtroom; that is the evidence, the addresses of counsel and what I say to you about the law.

You must not, during the course of the trial, make any enquiries outside the courtroom about any matter relating to any of the issues arising in this trial or relating to any of the accused. In particular you are not to use any aid, such as legal textbooks or the internet to research any matter in connection with your role as a juror.

It is a serious criminal offence for a member of the jury to make any enquiry for the purpose of obtaining information about the accused or any matter relevant to the trial. This prohibition continues from the time the jury is empanelled until the jury is discharged. I emphasise that this prohibition includes asking a question of any person; conducting any research, for example by using the Internet. That includes googling for information or using sites such as Yahoo!, Bing, Facebook, Twitter blogs, Myspace, LinkIn, Youtube and other similar sites."

1. Ms Davenport submitted that whilst it must be assumed that the jurors will act upon judicial directions, the trial is likely to attract publicity and jurors come from the wider community. It is possible that they might inadvertently talk to someone else such as a family member who has used Google to obtain information about the accused and is not subject to the court's directions. She argued that it is the court's role to protect jurors from events that put their integrity to the test. There is, in my opinion, some force in this argument. Notwithstanding that jurors are directed not to discuss the trial with anyone else other than their fellow jurors in the jury room, it is possible that a family member, close friend, relative or neighbour may, by accessing the internet, read one or more of the articles and raise what has been read with a juror before becoming aware that jurors are prohibited from talking about the trial.

1. It is well recognised that a trial judge should always do what he or she can in order to protect the rights of the accused to a fair trial and thereby ensure the integrity of its process. The majority in Mokbel observed at [73]:

"This confidence in the corporate integrity of juries, however, does not mean that the law should abandon its traditional role of protecting them from events which put this integrity to the test."

1. Although I accept that the jury will abide by my directions I consider that I should do all that I can to assist them in making their task easier. Notwithstanding the age of the articles, their immediate accessibility on the applicants' websites by keying in the names of the accused causes, in my opinion, a real risk of prejudice to the accuseds' right to a fair trial.

1. The internet orders and directions to the Registrar are aimed at ensuring, as best I can, that the fundamental prescript of the right of the accused to a fair trial is preserved. I conclude that it is necessary to make the orders.

1. For the foregoing reasons, the application by Nationwide News Pty Limited, News Digital Media Pty Limited and Fairfax Media Publications Pty Limited to vacate the orders will be dismissed. The ex parte orders will be recast so that their application is limited to the trial and in the case of Andrew Perish, the additional articles are embraced. I propose to make the order that the accused Matthew Lawton seeks but limit it to the duration of the trial.

1. It became apparent to me during the hearing that there is a degree of cross-fertilisation between the newspapers within the stable of Nationwide News Pty Limited and similarly within the stable of Fairfax Media Publications Pty Limited. For example, an order that an offending article be removed from the website of the Sydney Morning Herald will not prevent Fairfax Media Publications Pty Limited publishing the article on the website of The Age. It is for this reason that I propose that the orders be extended to include "any related corporate entity". I will give the applicants the opportunity to be heard on this issue.

* Submissions were made by the applicants on the width of the proposed orders and, at the applicant's request, the making of final orders was adjourned to 17 February 2011.

Decision last updated: 15 September 2011