X v General Television Corporation Pty Ltd - [2008] VSC 344

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8157 of 2008

‘X’ (an accused in a pending criminal trial)	Plaintiff
v
GENERAL TELEVISION CORPORATION PTY LTD	Defendant
CROWN IN THE RIGHT OF THE STATE OF VICTORIA	First Intervenor
HERALD AND WEEKLY TIMES PTY LTD (ABN 49 004 113 937)	Second Intervenor
NINE NETWORK AUSTRALIA PTY LTD (ABN 88 008 685 407)	Third Intervenor

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 SEPTEMBER 2008
DATE OF JUDGMENT:	8 SEPTEMBER 2008
CASE MAY BE CITED AS:	‘X’ v GENERAL TELEVISION CORPORATION PTY LTD & ORS
MEDIUM NEUTRAL CITATION:	[2008] VSC 344

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Civil orders – Orders in the nature of suppression orders – Inherent jurisdiction to make orders necessary for the fair trial of an accused – Criminal law - Potential for publication of television series to prejudice a jury trial - Balancing right to a fair trial with freedom of expression.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr David Grace QC with Ms Fiona Todd	Grace Morgan
For the Defendant	Mr JK Burnside QC with Mr David Gilbertson	Tress Cox Lawyers
For the Crown in the right of the State of Victoria (First Intervenor)	Mr G.J.C. Silbert SC	Office of Public Prosecutions
For Herald and Weekly Times Pty Ltd (ABN 49 004 113 937) (Second Intervenor)	Mr Quill	Solicitor for HWT
For Nine Network Australia Pty Ltd (ABN 88 008 685 407) (Third Intervenor)	Mr Nicholas Pullen (Solicitor)	Tress Cox Lawyers

Judgment Authorised for Publication

[This judgment is authorised for publication. The principal judgment contains the full reasons of the Court and has been available to the parties. However, in order to protect the identity of the plaintiff ‘X’, significant material of a factual nature has been omitted from this version.]

HIS HONOUR

The plaintiff ‘X’ seeks orders directed against the defendant General Television Corporation Pty Ltd which prohibit the publication, broadcasting or exhibition of a television programme entitled ‘Underbelly’ until after the criminal trials of ‘X’ have been completed.

Although X has been charged with various offences which may result in criminal trials, committal hearings in respect of those matters have not yet commenced and no trial Judge has been assigned to conduct the trial of the offences or was available to hear this application. Given the intention of the defendant General Television Corporation Pty Ltd to broadcast the television series in the near future and commence advertising the program almost immediately, I decided to hear this application in the Practice Court on an urgent basis.

At the outset of the hearing I made an order, pursuant to s. 18 (1) (c) Supreme Court Act 1986, prohibiting any publication in the public domain of any report in respect of the whole of this proceeding. I further ordered that the identity of the plaintiff be not made the subject of any report in the public domain. I made this order upon being satisfied of the matters referred to in section…

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.

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Details

Case: [2008] VSC 344
Decision Date: 8 September 2008

CaseChat Overview and Summary

In the Federal Court of Australia, X, a person charged with criminal offences, sought suppression orders against General Television Corporation Pty Ltd to prevent the publication of a television series that might prejudice the jury trial of the charges against X. The case turned on whether the court had the inherent jurisdiction to issue orders necessary to ensure a fair trial and whether such orders could be made to balance the right to a fair trial with the freedom of expression.

The central legal issues were whether the court possessed the inherent jurisdiction to grant suppression orders to protect the fairness of the trial and, if so, whether such orders could be made to balance the competing rights of the accused to a fair trial and freedom of expression. The court had to determine if the potential prejudice to the jury trial from the publication of the television series outweighed the freedom of expression.

The court found that it did indeed have the inherent jurisdiction to make orders necessary for the fair trial of an accused, even if those orders impacted upon freedom of expression. The court recognised that the right to a fair trial is fundamental and paramount in the criminal justice system. While acknowledging the importance of freedom of expression, the court held that in this case, the potential prejudice to the jury trial from the publication of the television series was sufficient to warrant suppression orders. The court was satisfied that the orders were necessary to protect the fairness of the trial and did not unduly restrict freedom of expression.

The court issued suppression orders preventing the publication of the television series until after the jury trial of X. The orders were designed to balance the right to a fair trial with freedom of expression, by restricting publication only until the jury trial was concluded. The court determined that the suppression orders were necessary to ensure that X could receive a fair trial, without unduly restricting freedom of expression beyond what was necessary in the circumstances.

Orders