R v Rich (Ruling No. 7)
[2008] VSC 437
•23 October 2008
| 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: | 16 September 2008 | |
DATE OF RULING: | 23 October 2008 | |
CASE MAY BE CITED AS: | R v Rich (Ruling No. 7) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 437 | |
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CRIMINAL LAW – Application for suppression orders – Internet article describing the history of the accused – Inherent jurisdiction of the Court – Whether there is a real risk of prejudice to the fair trial of the accused – Ability of jurors to follow directions of the trial judge – Juries Act 2000 (Vic) s 78A.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Tinney with Mr S. Milesi | Office of Public Prosecutions |
| For the Accused | Mr J. Desmond with Mr R. Edney | Doogue & O’Brien |
| For Fairfax Media | Mr L. Carter | Minter Ellison |
HIS HONOUR:
Hugo Rich is charged with murder, armed robbery and other related offences. The background to these matters has been set out in a number of previous rulings which I have delivered in this matter.[1]
[1]R v Rich (Ruling No. 1) [2008] VSC 119R at [2]-[3]; R v Rich (Ruling No. 2) [2008] VSC 141 at [4]-[6].
On 10 June 2005, The Age newspaper published an article by journalist John Silvester under the headline “Hugo Rich chose the low road”. The article was accompanied by a photograph, said to be of the accused caught on a surveillance camera during a bank robbery.
The article is an analysis of Rich as a person and describes his background. It asserts, for example, that instead of being a successful professional, he chose to become a career criminal and in particular “a prolific armed robber and high maintenance inmate.” The article refers to the fact that he is to be charged by the homicide squad of the Victoria Police with the murder of the security guard, Erwin Kastenberger, whom the article recites was shot dead during an armed robbery at Blackburn North on 8 March 2005. It is of course that incident which is at the basis of the trial before me.
The article recites other aspects of Rich’s history, including the fact that he was formally known as Olaf Dietrich and under that name had been in prison for armed robbery, contempt and threatening to kill a detective. The article refers to his attempts to operate in the commercial world and his prison sentence for drug trafficking in 1986. The article describes his change of name and then his failure in the commercial world resulting in a return to “what he knew – armed robbery”. The article also recites that he had been involved in an armed robbery at Waverley Gardens, obtaining some $98,000, and concludes with descriptions of the threats the accused was said to have made to Judge Byrne of the County Court and to the then Crown prosecutor involved in the case arising from that armed robbery.
Mr Desmond, on behalf of the accused, submits that I should make an order pursuant to the inherent jurisdiction of the Court aimed at removing that article which, despite having been published in June 2005, remains on The Age website. Indeed a search of the internet using the name “Hugo Rich” results in this article being the first item returned under the search.
Mr Carter of counsel appeared on behalf of Fairfax Media to resist Mr Desmond’s application.
Submissions
Mr Desmond submitted that I should make an order pursuant to the inherent jurisdiction to which I have earlier referred. He correctly analysed the article in The Age and the implied or express criticisms the journalist makes of his client. There is no doubt that he is right about how the article should be interpreted.
Mr Desmond referred to the judgment of King J in Herald & Weekly Times and Ors v Williams and Ors.[2] That case concerned the recent trials connected with the Williams family; in particular George, Carl and Roberta. Her Honour had made an order prohibiting publication of material concerning those three people but the order had not been communicated to the relevant media organisations in time to prevent material being published in The Age and Herald Sun. Counsel for the media organisations submitted that the orders that her Honour had made should be set aside.[3]
[2][2005] VSC 316 [hereinafter “Williams”].
[3]Part of the submission concerned the power to make the orders – an issue which does not arise here, particularly given the judgment of the Court of Appeal in General Television Corporation v DPP & Ors [2008] VSCA 49 [hereinafter “General Television”].
King J identified the balancing considerations: “… the maintenance of transparency of court proceedings and journalistic comment and the prejudice that may be caused to the fair trial of the accused men.”[4] A reading of the rest of her Honour’s judgment demonstrates that the issue confronting her was entirely different from the one confronting me. She was concerned with references to the accused in newspapers and on television. She was of the view that the reporting was “pejorative and entirely unnecessary”. I am not concerned with publicity material of that nature on those mediums.
[4][2005] VSC 316 at [17].
I raised with Mr Desmond the difference in circumstances being that for anyone to see the impugned article, a person would need to take the positive step of searching the internet, unlike the circumstances being dealt with by King J in Williams where the exposure of potential jurors to the pre-trial publicity was effectively involuntary. Effectively, he submitted that once the name “Hugo Rich” becomes significant the risk is there. That, in turn, raises the question of whether jurors will become aware of the trial of Rich in sufficient time for them to make an internet search without it being unlawful for them to do so.
On behalf of Fairfax Media, Mr Carter accepts that if there is a basis for the making of any order then it is pursuant to the inherent jurisdiction of the Court rather than ss 18 and 19 of the Supreme Court Act 1987 (Vic). Relying on the observations in General Television,[5] Mr Carter submitted that the test is whether “there’s a real risk that continued publication of the said article would prejudice the fair trial of the accused” which is to commence on 27 January 2009.
[5][2008] VSCA 49 at [36].
Mr Carter also relied on the analysis of the authorities done by Cummins J in DPP v Williams.[6] In that case Cummins J refused an application for orders pursuant to ss 18(1)(c) and 19 of the Supreme Court Act 1986 (Vic) or under the Court’s inherent jurisdiction. The orders were sought by the DPP that the media not publish in print or electronically any material alleging that the particular members of the Williams family were involved in criminal drug trafficking from which they derived considerable wealth or other criminal offences. His Honour reviewed some of the authorities[7] and summarised his analysis in the following terms:
Essentially, the relevant principles come to this. First, that the court has power to protect its own processes, primarily that of a fair trial and to ensure that accused persons are given a fair trial and that they are seen to be given a fair trial. That is, as I have said, in the interests of accused persons, in the interests of the prosecution, and in the interests of the court process and in the interests of the public at large. That is a fundamental and powerful function of court process, which will be activated if there is a real risk of serious interference with the administration of justice.
Secondly, the court will not interfere with matters of legitimate public concern or legitimate public discussion, and the court will not stifle that public discussion, and will not muzzle the media in the fulfilment of that public discussion, subject to the avoidance of the risk of serious interference with the administration of justice.
Thirdly, long experience in the law, and my limited experience in the law, confirms that juries are robust and are responsible. Of course, one must not ask psychological impossibilities of juries, and one must always be astute to prevent prejudice creeping into the jury trial from extraneous sources. But juries, time and again, come to court in cases of great notoriety and publicity and demonstrate by their evident application of mind that they act according to their oath or affirmation to give a true verdict according to the evidence led before them in court. Juries also see the effort which all counsel put into cases, they see the attention to evidence, they see the testing of evidence and often the destruction of apparently persuasive evidence by cross-examination, they hear the directions of the trial judge and they are in law bound by them. Juries by direction, observation and osmosis assume a proper and responsible role as the judges of the facts, judging the case solely on the evidence led in court.
[6](2004) 10 VR 348.
[7]Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15; R v Glennon (1992) 173 CLR 592; Ex Parte Telegraph Plc and other appeals [1993] 2 All ER 971; Friedrich v Herald & Weekly Times [1990] VR 995.
Although Cummins J dealt with the issue in the third part of his summary of principle, Mr Carter dealt further with the issue raised by Mr Desmond of whether a legal direction from me could cure a potential juror’s “mindset” were that potential juror to have viewed the article which is the subject of this application. He relies in particular on the observation of Warren CJ in R v Dupas,[8] which concludes that the submission made on behalf of the applicants in that case “gravely underestimates” the ability of jurors to follow directions. Nettle JA, on the same topic, observed:
Of necessity the courts must rely on the integrity and sense of duty of the jurors and, although the experience of the courts is that the reliance is not misplaced, our system of protecting jurors from external influences such as the press is not perfect. Despite those shortcomings, a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial.[9]
[8][2005] VSCA 212.
[9]Ibid at [81].
Mr Carter thus submits that Mr Desmond’s submissions on the ability of a legal direction to remedy any prejudice are misplaced. Of course, the fact that judges consider that jurors are faithful to their oath is often based more in hope than any identifiable objective evidence. However, the third observation of Cummins J in his trinus of principles is that of an experienced trial lawyer and the senior judge of the Trial Division of this Court and therefore must be respected. My own experience is mixed. In my opinion Nettle JA’s approach is the most realistic when he observes that courts have little choice but to rely on a jury’s integrity and sense of duty.
Finally, Mr Carter refers to s 78A of the Juries Act 2000 (Vic) which came into force on 27 August 2008 and is in following terms:
Panel member or juror must not make enquiries about trial matters
(1) A person who is—
(a) on a panel for a trial; or
(b) a juror in a trial—
must not make an enquiry for the purpose of obtaining information about a party to the trial or any matter relevant to the trial, except in the proper exercise of his or her functions as a juror.
Penalty: 120 penalty units.
(2) This section applies from the time a person is selected or allocated as part of a panel for a trial until—
(a) the person is excused from jury service on the trial; or
(b) the person returns to the jury pool; or
(c) if the person is empanelled as a juror, the juror, or the jury of which the juror is a member, is discharged by the trial judge.
(3) Nothing in this section prevents a juror from—
(a) making an enquiry of the court or another member of the jury, in the proper exercise of his or her functions as a juror; or
(b) making an enquiry authorised by the trial judge.
(4) Anything done by a juror in contravention of a direction given to the jury by the trial judge is not a proper exercise by the juror of his or her functions as a juror.
(5) In this section, making an enquiry includes—
(a) consulting with another person;
(b) conducting any research by any means;
Example: Using the Internet to search an electronic database for information.
(c) viewing or inspecting a place or object that is relevant to the trial;
(d) conducting an experiment;
(e) requesting another person to make an enquiry.
The effect of those provisions appears to be that from the moment a person becomes a member of a panel from which the jury is to be selected, that person must not make enquiries to obtain information about the case either directly themselves or through another person.
Analysis
It is not in contention that I have the jurisdiction to make an order which directs Fairfax Media to remove the article from the internet pursuant to the inherent jurisdiction of the Court if I came to the conclusion that such an order is necessary for the fair trial of the accused.[10] The question is should I do so.
[10]See, eg, General Television [2008] VSCA 49 at 21.
It is relevant for me to recall that on 28 August 2008, Mr Desmond drew my attention to articles which had been published on a website apparently associated with a group of victims of crime. A person connected with that group and with that website, Mr Noel McNamara, was in the Court and on my inquiry of him undertook to remove the articles and not to publish any further material concerning Hugo Rich until after Rich’s trial had been completed. Much of the material to which I was referred on this website had been recently added and took the form of a “web log” (“Blog”) in which various contributors offered comments on Rich and the crime he is alleged to have committed. So far as The Age article is concerned, it has been on the internet since it was published in June 2005.
The factual circumstances in this case are different from any of the other cases to which I will later refer. On this application I am not concerned with existing publicity or the threat of further publicity which would threaten the fair trial of the accused. In order to access this article it would be necessary for any individual to conduct a search on the internet. An entry of the name “Hugo Rich” into an appropriate search engine would inevitably produce this article. The question is whether or not potential jurors in this case are likely to be confronted with this article such as to compromise their ability to remain objective and impartial in their duty as jurors.
There are a number of factors relevant to that issue which suggest that that will not occur. First, there has been no publicity about this case in recent times and, apart from some entries on the internet, no publicity or material tending to disclose Rich’s antecedents. Second, it is unlikely that potential jurors would at this stage be examining the internet since there is no reason for them to do so and at this stage of the proceedings they would be unaware of their liability for jury service in this case. Third, s 78A of the Juries Act 2000 (Vic) is now in force – a matter which will be required to be drawn to the attention of the jury panel when this cases commences on 27 January 2009. Fourth, I do propose to inform the jury panel upon their arrival in court on 27 January 2009 of the effect of s 78A of the Juries Act 2000 (Vic).
In addition to these factors, I need to consider the observations of Warren CJ and Nettle JA in Dupas, to which I have earlier referred, concerning the ability of jurors to follow judicial instructions. With respect, I agree with their Honours’ observations.
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.
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