R v Rich (Ruling No 23) - [2009] VSC 54

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1535 of 2007

THE QUEEN

HUGO ALISTAIR RICH

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 & 19 February 2009
DATE OF RULING:	23 February 2009
CASE MAY BE CITED AS:	R v Rich (Ruling No. 23)
MEDIUM NEUTRAL CITATION:	[2009] VSC 54

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CRIMINAL LAW – Suppression order – Publication of an image of the accused – Retrospective application of suppression orders.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Tinney SC with Mr S. Milesi	Office of Public Prosecutions
For the Accused	Mr J. Desmond with Mr R. Edney	Doogue & O’Brien
For Fairfax Media Group	Ms G. Cooper	Minter Ellison

HIS HONOUR:

On 13 February 2009 at the request of the Crown, I made an order in the following terms:

1.Pursuant to s 18 of the Supreme Court Act 1986 (Vic), the publication of any image of Leonard Ryan be prohibited in any media outlet, or in any newspaper or television on the internet or any other publication until further order.
2.Liberty to apply be granted to the media and to the accused in relation to any matter that may arise during the duration of this order.

Following the making of that order, Mr Desmond of counsel on behalf of the accused, Hugo Alistair Rich, asked me to make a similar order in respect of the image of the accused. On a provisional basis, I made the following order:

1.Pursuant to s 18 of the Supreme Court Act 1986 (Vic), the publication of any image of Hugo Alistair Rich be prohibited in any media outlet, or in any newspaper or television on the internet or any other publication until further order.
2.Liberty to apply be granted to the media in relation to any matter that may arise during the duration of this order.

On 19 February 2009 I heard submissions on behalf of Fairfax Media Group in an application to vacate the order relating to Mr Rich. In the course of those submissions, several issues arose. First, the question arose as to whether there was an appropriate basis and a justification for the making of such an order. The second issue was whether the order could operate retrospectively in relation to an image which had been placed on The Age website before the order was made.

With respect to the first issue, Ms Cooper, who appeared on behalf of Fairfax Media Group, submitted that the suppression of the image of Mr Rich was not necessary in this case. She submitted that although the case involves the issue of the identity of the third offender (Leonard Ryan and Sean Hogan being the other two), there are no eye-witnesses who were involved in the incident who make a visual identification of the accused. She therefore submitted, I think correctly, that the publication of a photograph of the accused in a newspaper could have no effect on the issue of whether or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rich (Ruling No 23)

Details

AGLC: R v Rich (Ruling No 23) [2009] VSC 54
Case: [2009] VSC 54
Decision Date: 23 February 2009

CaseChat Overview and Summary

The case of R v Rich involved a dispute concerning the suppression of a publication that featured an image of the accused. The matter was heard in the Court of Appeal. The primary issue before the court was whether the suppression order, which prohibited the publication of the image, could be applied retrospectively to the publication that had already occurred before the order was made. This raised questions about the temporal scope of the suppression order and its applicability to events that transpired prior to its issuance.

The court considered the statutory language and the legislative intent behind the suppression order provisions. It examined whether the plain meaning of the legislation allowed for retrospective application or if it was limited to future publications. The court also looked at the purpose of the suppression order, which was to prevent the publication of information that might prejudice a fair trial or the administration of justice. The court noted that if the suppression order could be applied retrospectively, it might inadvertently stifle freedom of expression by penalising publications that occurred before the order was made. The court concluded that the suppression order could not be applied retrospectively as it would contravene the principle that laws should not be applied in a manner that has a retrospective effect unless the statute expressly provides for it.

The Court of Appeal held that the suppression order could not be applied to the publication that had occurred before the order was made. The court's decision underscored the importance of adhering to the principle that laws should not have retrospective effect unless explicitly stated by the legislation. This ruling provided clarity on the temporal scope of suppression orders and reinforced the need to balance the interests of a fair trial with the protection of freedom of expression. The court did not make any further orders beyond its ruling on the retrospective application of the suppression order.

Orders