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

v

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:

1. 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. 

1. 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. 

1. 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. 

1. 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 not the accused was involved in the armed robbery and murder with which he is charged.   

1. On behalf of the accused opposing the lifting or vacating of the order, Mr Desmond submitted that unless the images of the accused that are presently on the internet are removed, there is the possibility that a juror might innocently come across the images in the course of what he described as innocent internet searches. Mr Desmond tended to concentrate on the risks of the jury seeing the pre-existing images of the accused on the internet as opposed to the publication of an image of the accused as part of reporting, for example, on the progress of this trial. 

1. In Ruling No. 7 in this matter I was asked to make orders in respect of a pre-existing article appearing on the The Age internet website which carries one of the photographs, alleged to be of the accused though denied by him, which Mr Desmond is concerned about.[1]  I concluded:

The question therefore arises as to the likelihood of the contents of the article being brought to the attention of potential jurors in its present form as an article on the internet absent an unlawful enquiry by a jury member after they have been nominated to form part of the panel or, ultimately, part of the jury in this trial.  In turn, the question is whether, as Cummins J put it in DPP v Williams there is a real risk of serious interference with the administration of justice.  In the present circumstances I am not persuaded there is, and the application on behalf of the accused for orders requiring Fairfax Media to remove the particular article is refused.

[1]R v Rich (Ruling No. 7) [2008] VSC 437R.

1. In accordance with both my intention and the requirements to do so, I have, on two occasions, given directions to the jury and to the jury panel from which it was selected in the following terms.  First, to the panel:

Secondly, and equally importantly, you must not make any investigation or inquiry or conduct any independent research concerning any aspect of this case or any person connected with it. You must not use any research tools such as the Internet to access legal databases or earlier decisions of this court or any other court in relation to any material that might be relevant to this case. You also must not ask anyone else to do those things on your behalf. I tell you that because under s.78A of the Juries Act, were you to do those things you would be committing an offence and penalties apply. But more importantly you would understand that in order for there to be a fair trial only information in the form of evidence which is properly before the jury in this trial should be taken into account in such an important decision.[2]

[2]This direction was given to the first half of the panel on Monday, 9 February 2009: Transcript at 16-17.  A similar direction was given to the second half of the panel on Wednesday, 11 February 2009: Transcript at 1-4.

1. Then to the empanelled jury:

You must not base your decision also on any information that you may obtain or come into contact with outside this courtroom. I think I told you this during the course of the week. You must completely ignore anything that you may have seen or heard in the media in this case or the people involved in it. You must only consider the evidence presented to you in this courtroom. As I have already told you but I tell you again because it is important, you must not make any investigations or enquiries or conduct any independent research concerning any aspect of the case or any of the people concerned with it. You must not use research tools such as the Internet, legal databases, decisions of courts or other material. You must also not ask anyone else to undertake such investigations, and as I think I reminded you earlier in the week, such conduct would be a breach of s.78A of the Juries Act and such conduct in those circumstances attracts a significant penalty.

Having given you that warning, members of the jury, the more important way to look at it I suspect is to understand why there are such rules, and the obvious reason why there are such rules is because as judges of the facts in this case and acting like judges you would see the wisdom and the logic in ensuring that the only thing that enters your mind to consider your decision in this case is properly admissible evidence, and properly admissible evidence in this courtroom. [3]

[3]Transcript at 214.

1. Although I made a provisional order in relation to the publication of the image of the accused, I am unable to see how the images which are presently published on the internet could be accessed by members of the jury other than in breach of the directions which I have twice given them pursuant to s 78A of the Juries Act 2000.  I propose to proceed on the basis that the jury will comply with the directions I have given them and I therefore vacate the order made on 13 February 2009 in respect of the accused, Hugo Alistair Rich.  Any image published in the future should obviously be a neutral and non-controversial one, and of the head and shoulders of the accused only.

1. As I have concluded that there is no basis for the continuation of the order suppressing the publication of the image of the accused, it is not necessary for me to decide whether such a suppression order could apply retrospectively to images which have already been published on the internet. 

1. I note that the order I made in relation to Leonard Ryan was made for the purpose of endeavouring to ensure his safety as a prisoner giving evidence in this case as a Crown witness.[4]  Ms Cooper agreed that it was within my authority to direct the removal of an image if I considered that the result of not doing so was that a person would be at risk of harm or for some other reason connected with the fair trial of the accused.[5]  However, at this stage I propose to simply make a further request that any image of Leonard Ryan which is published on the internet by the Fairfax Media Group in Victoria be removed. 

   [4]See Transcript at 245-6.

   [5]Transcript at 744-5.

1. I revoke the order I made on 13 February 2009 concerning Hugo Alistair Rich.

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