X v General Television Corporation Pty Ltd
[2008] VSC 344
•8 September 2008
| 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 19(b) of the Act that to do otherwise would prejudice the administration of justice. I further ordered that this order would extend to proceedings before me on the previous Friday, 29 August 2008 in which X made an application for legal aid to cover the legal cost of making this application. In making this order I was mindful that a free media and an open society normally require that court proceedings be open to the public and be reported upon and discussed publicly. I was also mindful of the need to impose no restriction upon public access to the proceeding or publication in respect of the court proceeding unless this was necessary. However, in this case there is also a public interest in the due administration of justice which made it necessary for the orders to be made. Having later heard from Mr Quill, who appeared as an intervenor on behalf of the Herald and Weekly Times Pty Ltd, I determined to vary my suppression orders by permitting them to operate only until further order, which would be made at the time of delivery of my judgment in the principal application.
[Paragraphs 4 to 12 inclusive have been deleted from this version.]
The Underbelly Series
Central to this application is the effect that a foreshadowed broadcast by Channel 9 (a television station operated by the defendant) of the program ‘Underbelly’ might have upon the trials of X when and if they are eventually conducted.
Underbelly is a program of 13 episodes. A “Victorian” edited version of the program has been produced to satisfy concerns expressed by the Jeremy Rapke QC, Victorian Director of Public Prosecutions. The Victorian version is proposed to consist of an edited version of episodes 1-6 only. It is proposed to broadcast these episodes commencing on or after 7 September 2008, and thereafter one episode would be shown on Channel 9 in Victoria each week for a total period of 6 weeks.
In the course of the proceeding I was provided with copies of all of the edited episodes of Underbelly which it intended to broadcast in Victoria commencing on or after 7 September 2008. I have viewed each of these episodes numbered 1-6.
No other source of information, including newspapers, books, radio and the internet, comes close to the pervasive power of television. Television combines the compelling images, music and dramatic narrative of the movies, with the personal immediacy and convenience of access in the loungeroom. A book, newspaper and even internet text have to be read in order to gain the information contained in these sources: it has to be processed by the mind before the information can be assimilated. On the other hand, what is seen on television enters directly into the mind of the audience with little opportunity for analysis. As Malcolm Muggeridge has pointed out:[1] TV images are absorbed directly by the unconscious mind with no conscious effort required.
The Underbelly series is said to based on the so called Gangland Wars in Melbourne between 1995 and 2004. The programme is likely to make popular and widespread television viewing for members of the Victorian public. The Underbelly series is classified “M”. In the introduction to each of the episodes, the programme is introduced with the printed statement: “Based on Events in Melbourne 1995 – 2004”. Each episode is “Recommended for Mature Audiences” and each is said to contain: “Strong Violence; Frequent Course Language; Strong Sex Scenes and Drug Use.” Having viewed episodes 1 – 6, these descriptions are amply justified.
[Paragraphs 18 to 23 inclusive have been deleted from this version.]
Jurisdiction to Make the Order
[1] Malcolm Muggeridge, Christ and the Media, (1977).
The Court has inherent jurisdiction to make orders necessary to prohibit a threatened contempt of court.
As the Court of Appeal said in General Television Corporation Pty Ltd v Director of Public Prosecutions and Ors:[2]
Clearly, the usual exercise of that inherent jurisdiction consists of orders suppressing the publication of a part or parts of a proceeding or of evidence given or to be given in a proceeding. One usual example of this is the suppression of publication of the sentencing hearing of an accused who has pleaded guilty to offences shortly before his or her co-accused is to face trial. Notwithstanding that the usual suppression order is based upon sections 18 and 19 of the Supreme Court Act, it is clear that a superior court has both the power and the duty to ensure that justice is done according to law and may make orders for the protection of those involved in proceedings before it. No doubt, on occasions, the exercise of that power, and duty, will be by way of an injunction to restrain an apprehended contempt of court.
There is ample authority to demonstrate that courts have power to restrain publication of extrinsic material so as to avoid such an apprehended contempt.
[2][2008] VSCA 49 [21]-[22].
Importance of a Fair Trial
As Gaudron J said in Dietrich v The Queen [1992] 177 CLR 293 at 362:
It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair hearing according to law.
Further, at 363:
The examples are not exhaustive. They are, however, sufficient to show that the requirement of fairness is, and in various different contexts, has been recognized as, independent from and additional to the requirement that a trial be conducted in accordance with law.
Deane J said in a similar vein in Hinch v Attorney-General (Victoria):[3]
The right to a fair and unprejudiced trial is an essential safeguard of the liberty of the individual under the law. The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraints and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law.
[3](1987) 164 CLR 15, 58.
The Court of Appeal of Victoria recently echoed the same view when it said in General Television Corporation Pty Ltd v Director of Public Prosecutions and Ors:[4]
The power to be exercised in such cases is not merely to determine private rights between litigants, but is a power to ensure the right of the accused and the prosecution to a fair trial.
[4][2008] VSCA 49 [26].
The right is reinforced by s.24 Charter of Human Rights and Responsibilities Act 2006 (“the Victorian Charter”):
24. Fair hearing
(1)A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
(2)Despite subsection (1), a court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter.
Note For example, section 19 of the Supreme Court Act 1986 sets out the circumstances in which the Supreme Court may close all or part of a proceeding to the public. See also section 80AA of the County Court Act 1958 and section 126 of the Magistrates' Court Act 1989.
(3)All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.
The right to a fair trial is also reflected at the international level in Article 14 of the International Covenant on Civil and Political Rights 1966 (the ICCPR).[5] The ICCPR entered into force for Australia (except Article 41) on 13 November 1980 (with Article 41 coming into force for Australia on 28 January 1993). Article 14(1) provides for the right to a fair trial and includes the right to have the press or the public excluded from “all or part of a trial to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. Article 14(1) is in the following form:
Article 14
1.All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
[5] Australian Treaty Series 1980 No. 23 [Reprint].
Finding of Contempt of Court
I find that the broadcasting of episode 6 of the television series Underbelly in Victoria, prior to the trial of X on his murder charge in relation to the death of Lewis Moran would constitute a contempt of court. In my opinion, the making of the necessary prohibition order is necessary to ensure a fair trial for the accused X in relation to this charge.
As the Court of Appeal said in General Television Corporation Pty Ltd v Director of Public Prosecutions and Ors:[6]
The test for liability for sub judice contempt is whether, as a matter of practical reality, the publication is shown to have a tendency to prejudice or embarrass particular legal proceedings.[7]
[6][2008] VSCA 49 [36].
[7]See: Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 34 (Wilson J), 46 (Deane J), 70 (Toohey J), 88 (Gaudron J).
I find that there is a real and definite tendency for episode 6 of the edited Victorian series to prejudice the trial of X and that a broadcast on Channel 9 in Victoria prior to X’s trial in relation to the death of Lewis Moran would have this effect.
Right of Free Speech
I make this finding mindful that the right to freedom of speech is entrenched in the law of Victoria in s.15 of the Victorian Charter. Sub-sections 15(1) and (2) provide:
15. Freedom of expression
(1) Every person has the right to hold an opinion without interference.
(2)Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether-
(a) orally; or
(b) in writing; or
(c) in print; or
(d) by way of art; or
(e) in another medium chosen by him or her.
The right to freedom of expression is also reflected in Article 19 (2) of the ICCPR. The article provides:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
However, the right of free speech is not absolute. As Kirby J said in Australian Broadcasting Corporation v O’Neill:[8]
None of this is to say that defence of freedom of speech and of a free press are not important values of Australian law. They are. But they are not absolute. In a particular case, they must be given effect in a way consonant with competing legal values.
The competing values in Australia extend to protecting individuals against gross humiliation, irreparable damage, public and gratuitous harm and other like wrongs. In every case, the court from which relief is sought must weigh the competing interests at stake. It will do so knowing that sometimes media power is abused and, when this happens, that courts are often the only institutions in society with the authority and the will to protect the individual from such abuse of power. [Citations removed.]
[8](2006) 229 ALR 457 [114]-[115].
This important caveat finds expression in the Victorian Charter. Sub-section 15(3) provides:
(3)Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary-
(a) to respect the rights and reputation of other persons; or
(b)for the protection of national security, public order, public health or public morality.
Section 7 of the Victorian Charter is also instructive. It provides:
7. Human rights-what they are and when they may be limited
(1)This Part sets out the human rights that Parliament specifically seeks to protect and promote.
(2)A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including-
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d)the relationship between the limitation and its purpose; and
(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
(3)Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.
The limits recognised on the right to freedom of speech are also provided for in Article 19(3) of the ICCPR in the following way:
3.The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b)For the protection of national security or of public order (ordre public), or of public health or morals.
In this case there is a competing human right, that of the right of X to a fair trial. The right to a fair trial is central to a free and democratic society. I adopt the view of Richardson J in Gisborne Herald Co Ltd v Solicitor-General:[9]
The present rule is that, where on the conventional analysis freedom of expression and fair trial rights cannot be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial.
Balancing the public interest in receiving the information imparted by the broadcast of episode 6 of Underbelly in Victoria against the public interest in ensuring the proper conduct of a pending criminal trial
[9][1995] 3 NZLR 563, 575.
The Victorian public has a very limited public interest in receiving the information and the ideas imparted by episode 6 of Underbelly.
As was conceded on behalf of General Television Corporation, the principal purpose of the series is that of entertainment. King J concluded:[10]
It is not a situation that I have to, in my view, balance the public right to know. This is not the reporting of an event, this is a television series made for entertainment. Channel 9’s interests are commercial in that they seek to air this at an appropriate ratings period to ensure they get good ratings. From those good ratings they would hope to receive good advertising revenue.
In my view it is far more important that the criminal justice power works, than that a channel make a profit.
[10]R v A[2008] VSC 73, [12]-[13].
To this I would add that in this case it is far more important for the fair trial of the accused X to be placed beyond the real risk of irreparable compromise than it is for the Victorian public to be entertained by the episode in the series which I intend to prohibit. The balance to be struck in this case is a long way from the considerations taken into account in the judgment of Jordon CJ in Ex Parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd[11] as follows:
It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.
[11](1937) 37 SR (NSW) 242, 249-50.
Orders No Wider than Necessary
I accept that the jurisdiction to make orders in cases of this kind extends “no wider than is necessary” to secure the object of ensuring that justice is done.[12]
[12]John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476-477 (McHugh JA).
In my view an order made against the defendant General Television Corporation Pty Ltd not to broadcast episode 6 of the program Underbelly in Victoria until after the completion of the trial of X in respect of the alleged murder of Lewis Moran is all that is necessary.
Contempt of Court Still Open
Clearly, any person with knowledge of this order who sought deliberately to frustrate the effect of the order may be liable for a contempt of court. As McHugh JA said in John Fairfax and Sons v Police Tribunal:[13]
[C]onduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court ... the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice.
[13](1986) 5 NSWLR 465, 477.
The Court of Appeal of Victoria was of a similar mind when it said in General Television Corporation Pty Ltd v Director of Public Prosecutions and Ors:[14]
The fact that the above order is directed against the applicant only should not be misunderstood. It should not be treated by persons other than the named applicant as giving them carte blanche to publish any part of Underbelly howsoever the same may have been obtained by them. Obviously, any person with knowledge of the order who saw fit to publish Underbelly in Victoria prior to the verdict in the matter of R v [A] would run a grave risk of being found to have committed a contempt of court.
[14][2008] VSCA 49 [68].
Orders
I make orders in the following terms:
1.General Television Corporation Pty Ltd and/or any related corporate entity are prohibited from publishing episode 6 of the television series “Underbelly” or any part thereof in the State of Victoria until after the completion of the trial and verdict in the matter of R v [X] in relation to the alleged murder of Lewis Moran.
2.General Television Corporation Pty Ltd and/or any related corporate entity are permitted to broadcast episodes 1-5 (inclusive) of the edited Victorian version of the television series “Underbelly” or any part thereof in the State of Victoria with immediate effect.
3.I direct that, pursuant to section 18 (1) Supreme Court Act 1986 the publication of a report of this proceeding and the proceeding before this Court on Friday 29 August 2008 (“the Friday Proceeding”) and any information derived from these proceedings and any information which discloses the identity of the applicant in the Friday Proceeding or the plaintiff in this proceeding be prohibited, save for the publication of information contained in the document entitled “Judgment Authorised for Publication” which may be published.
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