Supreme Court New South Wales Medium Neutral Citation: R v Haile [2023] NSWSC 52 Hearing dates: 06 February 2023 Date of orders: 07 February 2023 Decision date: 07 February 2023 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Orders sought under s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) refused. Catchwords: CRIMINAL PROCEDURE – suppression and non-publication orders – take down of online articles discussing now-quashed verdict on same charge – whether court can account for the risk jurors may disobey instructions and do own research – nature of pre-trial publicity – meaning of "necessary" in Court Suppression and Non-Publication Orders Act 2010 (NSW) Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW) ss 7, 8 Jury Act 1977 (NSW) s 68C(1) Cases Cited: Dawson v R [2021] NSWCCA 117 Dupas v The Queen (2010) 241 CLR 237 Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384 R v Dawson [2020] NSWSC 1221 The Queen v Glennon (1992) 173 CLR 592 Category: Procedural rulings Parties: Rex (Crown) Daniel Haile (Accused) Representation: Counsel: D Patch (Crown) J Brock (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Jamieson Criminal Law (Accused) Nine (on behalf of media entities) File Number(s): 2013/334195 Publication restriction: Nil Judgment 1. HIS HONOUR: By notice of motion dated 27 January 2023, the accused Daniel Haile seeks a series of orders pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010. The background to that application is briefly as follows. 2. In 2016, Mr Haile was tried and convicted of murdering Ray Pasnin on 30 October 2013. The trial proceeded with a jury before RS Hulme AJ. His Honour later sentenced Mr Haile for that crime. Mr Haile successfully appealed against his conviction to the Court of Criminal Appeal. His conviction was set aside and a new trial was ordered. That new trial is due to commence before me and a jury on 13 February 2023. No orders are sought by anyone for non-publication of the fair reporting of those proceedings in the usual way. 3. In the course of sentencing Mr Haile, his Honour necessarily made reference to his conviction and to the circumstances of his offending. Both the trial itself and its aftermath, including the sentencing proceedings and the appeal, received significant publicity. There is no suggestion in the present proceedings that any of that publicity was inaccurate or inappropriate or improper. Electronic and print media reporting of those matters are the subject of the present application. 4. The simple burden of Mr Haile's concern is that he has been referred to in these publications as the person who murdered Mr Pasnin and the person who was convicted for doing so. Although those reports were accurate at the time they were published, they were overtaken by Mr Haile's success on appeal. Mr Haile is therefore concerned to remove any publications that continue to reveal or refer to his previous conviction for the offence for which he is being re-tried. The general fear is that prospective or empanelled jurors who might have access to this (now) inaccurate information would be irreconcilably compromised in their ability to try Mr Haile fairly: information that he was previously found guilty by a different jury would be inimical to an objective and dispassionate reception and consideration of the evidence in the new trial. 5. In these circumstances, Mr Haile asks me to order that the "offending" articles be taken down for the duration of his upcoming trial. Those orders are opposed by a number of media organisations which helpfully co-operated in the listing of this matter for argument despite short notice to them and less than full compliance with the rules relating to service of applications such as the present. 6. Take down orders of the type sought by Mr Haile can only be made upon the grounds prescribed by s 8(1) of the Suppression Act, as follows: 8 Grounds for making an order (1) A court may make a suppression order or non-publication order on one or more of the following grounds: (a) the order is necessary to prevent prejudice to the proper administration of justice, (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security, (c) the order is necessary to protect the safety of any person, (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900), (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. 1. The Court of Criminal Appeal dealt with an appeal from orders made in a similar application made by a trial judge in Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97. The Court dealt with the meaning of the word "necessary" at [22]-[24] as follows: "Meaning of 'necessary' in s 8(1) [22] In Rinehart v Welker [2011] NSWCA 403, at [27], Bathurst CJ and McColl JA, in considering the background to the introduction of the Act, explained the meaning of "necessary" in s 8 as follows: '[27] The operative condition for making a suppression order under s 8 of the [Suppression] Act is that it be 'necessary' to do so, which "... is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice ... 'suggests Parliament was not dealing with trivialities'": Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commission were made in relation to a legislative scheme which, while it required the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act) did not contain a provision in like terms to s 6 of the [Suppression] Act. That provision, in our view, reinforces the legislative intention that [Suppression] Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd v District Court of NSW (at [21]).' (emphasis added) [23] Bathurst CJ and McColl JA observed, at [28], that 'necessity' was the test that had been applied by the courts in the exercise of the inherent jurisdiction to make non-publication orders: see John Fairfax Publications v District Court of NSW. Their Honours observed, at [29], that the clearest statement that the test for making a suppression order or non-publication order under the inherent jurisdiction was one of 'necessity', was to be found in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1985) 5 NSWLR 465 at 476-477. That passage, which was cited with approval in Hogan v Hinch [2010] HCA 21; 240 CLR 651 at [21], is set out below. As their Honours' reasons also demonstrate, the requirement of necessity as the test for making any order that impinges upon the rule of open justice has a long history: see R v Macfarlane; Ex parte O'Flanagan and O'Kelly [1923] HCA 39; 32 CLR 518 at 549, cited with approval by the plurality in Hogan v Hinch at [87]. [24] Their Honours further noted, at [31], that it was not sufficient, to satisfy the test of necessity, that an order be 'convenient, reasonable or sensible, or serve some notion of the public interest'. Their Honours pointed out that there was no question of engaging in a 'balancing exercise': see Hogan v Hinch at [31]." 1. From the manner in which the issues were argued before me, I take Mr Haile's primary contention to be that if a juror knows or becomes aware of the fact that he had previously been convicted of the very offence with which he will be facing trial, he will not be able to receive a fair trial, even with the benefit of judicial directions about it. The concept of a fair trial was considered in Nationwide News Pty Ltd v Qaumi: "[62] We have set out above statements of principle in the case law as to the fundamental importance of open justice in the administration of justice in the Australian legal system. However, open justice is not the only fundamental principle that needs to be recognised and protected as an aspect of the proper administration of justice. There are others. Critical to this case is the fundamental right of a person to a fair trial. As French CJ and Crennan J stated in X7 v Australian Crime Commission [2013] HCA 29 at [37]: 'Relevant authorities have given context to the concept and importance of the right of every accused person to a fair and impartial trial according to law. Although Deane J pointed out in Jago that an accused's right to a fair trial is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial, for no person can enforce a right to be tried by the state, "it is convenient, and not unduly misleading, to refer to an accused's positive right to a fair trial".' (citations omitted) [63] Hayne and Bell JJ, at [89], considered that the question to ask in determining whether a person has had a fair trial, is 'whether the accused has had, or will have, a trial according to law'." 1. The Court in that case reached its conclusions as follows: "[89] Notwithstanding the very careful consideration his Honour gave to the making of the orders, and the views expressed by experienced trial judges in Perish and Debs, we have come to the conclusion that the take down orders would not result in the articles being sufficiently removed from the internet for the orders to be effective. In other words, we consider that it would be futile to make the orders. [90] We have reached this conclusion notwithstanding that there was evidence that the removal of one item had had some effect in reducing the information available to a searcher on the internet. We are reinforced in this conclusion by two factors. First, much of the material is old. Secondly, we consider that a trial judge will be able to give adequate directions to a jury that they must determine the matter on the evidence before the Court. In this regard, we give full effect to the received wisdom of the courts, having conducted jury trials over the years, that juries act responsibly and in accordance with their oath, including in complying with the directions of the trial judge. [91] Accordingly, we would allow the appeal in relation to the take down orders." 1. The media representative argued in this case that the dissemination of the articles that are the subject of the application has been so widespread that it would not be possible to make an order for all of the articles to be taken down. In the face of that difficulty, it was argued that the proposed order would be futile and that an order that is futile must fail the test of necessity: as a matter of construction, that which is ineffective cannot be described as "necessary": Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [76]-[78]. The evidence must demonstrate that the orders would be effective: Ibrahim at [78]. 2. It goes without saying that jurors in the new trial will not, and must not, be told that Mr Haile has previously been found guilty of the same offence. The fact that the Crown proposes to tender evidence from the first trial makes ensuring that Mr Haile's prior conviction is not revealed considerably more perilous than it might otherwise have been. However, be that as it may, the wisdom that informs the need to ensure that the jurors do not inadvertently learn of the prior conviction in the course of the trial also serves to give content to Mr Haile's concern that he should not be exposed to the risk that they might learn of that fact in some other way. 3. The authorities to which I have been directed understandably proceed on the basis that jurors will adhere to the directions of trial judges that they must not undertake independent research or investigation into the subject matter of a trial but should instead listen to and utilise only the evidence that is given in court in order to come to a decision according to law. That understanding is said to be reinforced by s 68C(1) of the Jury Act 1977, which criminalises certain conduct: 68C Inquiries by juror about trial matters prohibited (1) A juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror. Maximum penalty--50 penalty units or imprisonment for 2 years, or both. 1. It hardly needs to be said that any other view about the assumed compliance by jurors with directions and instructions given to them during the course of a criminal trial would strike directly at the legitimacy and reliability of the jury system. Affording credence to the prospect that jurors might disregard their oaths would undermine confidence in the trust reposed in them. 2. Submissions made to me included reference to occasions, mostly anecdotal but not exclusively so, in which jurors have been found to ignore exhortations about independent research with the result that some trials have been aborted. Mr Haile maintained that the risk of that occurring should be sufficient to cause me concern about whether he will receive a fair trial. The media representative on the contrary submitted that the risk was so small that it could confidently be disregarded as insignificant: even if the consequences of jury misconduct for Mr Haile would be large, the risk of misconduct occurring was not. 3. The media representative took a series of factual points. For example, not all of the articles or reports that Mr Haile was concerned to take down made reference to his conviction; some articles predated his first trial; some potentially offending articles were not the subject of the application in any event. It was also contended that service of the application had not been effected correctly. It is not necessary to deal with these matters in detail, having regard to the view that I have formed. 4. Having regard to the decision in Qaumi, I am bound to accept that the jury will abide by my directions that they must not do any research or investigations of their own in an attempt better to inform themselves about the facts in the trial or for any reason at all. As a matter of my usual practice, I am at pains to emphasise to juries that the prohibition on such activity derives directly from notions of fairness: it would be unfair to the parties if there were any prospect that a juror might possibly have formed his or her view about the guilt or innocence of an accused person based in any way upon matters that were not evidence in the trial. Newspaper articles or their equivalent would clearly constitute such material. 5. The fact that the published material included not merely reference to general matters about his alleged offending but also specific reference to his conviction was emphasised by Mr Haile as something possibly setting the present application apart from previously decided cases but in any event was something that gave considerably greater content to the notion of exceptional circumstances and the task of assessing what was necessary. However, even taking Mr Haile's contentions at their highest, I am unable to conclude that there is any reason why I should find that the jury in the trial will not abide by my directions and instructions that they are to refrain from conducting their own research. Mr Haile's proposition is that even if the risk is small, the consequences for him could be catastrophic. Unfortunately, I consider that I am constrained by authority to reject the application. 6. In R v Dawson [2020] NSWSC 1221, Fullerton J was asked to consider an application by an accused person for a permanent stay of criminal proceedings upon the basis of significant adverse pre-trial publicity. Her Honour dealt with that issue at great length, in the course of which she said the following: "[336] The Crown did not contend that the application for a stay because of the adverse influence of the podcast on the fairness of the applicant's trial was without foundation. The Crown prosecutor in his cross-examination of Mr Thomas, and in final submissions, made that plain. Rather, the Crown advanced the submission that the risk that the podcast poses to the administration of justice generally, and to the applicant's trial in particular, can be remedied in the trial process despite the podcast remaining accessible for download by members of the public. The Crown's submissions [337] In closing submissions, the Crown also acknowledged that the evidence adduced on the application exposes a number of 'defects' that have the capacity to put the applicant's fair trial at risk, additional to the stridency and pervasiveness of the commentary on the applicant's guilt in The Teacher's Pet podcast. The Crown referred to the 'gonzo journalism' indulged in by the journalist with A Current Affair, and the delay in proceedings being initiated against the applicant for murder with the associated lost opportunity to fully explore avenues of enquiry that might have supported his claim that his wife was alive after 8 January 1982. The Crown submitted, however, that neither individually nor in combination do those defects go to the 'root of the trial'. The Crown submitted they are each capable of being dealt with by either judicial direction or other rulings in the course of the trial which will alleviate the risk of the applicant being tried unfairly." 1. Her Honour's rejection of the stay application necessarily embraced the proposition that even the egregious publicity in that case was capable of being remedied by judicial directions or other rulings. Her Honour continued: "[381] In addressing that question, the subsidiary and practical question is whether, from what will inevitably need to be a very large pool of prospective jurors, I am satisfied there is at least a reasonable prospect that in the process of empanelment there will be in residue twelve or fifteen people who have not only survived challenge by the parties, but who will have already responded honestly and willingly to the trial judge's entreaty to declare if they have a fixed view about the case (whether because of what they have read or heard or discussed about it, or because they have aligned themselves with the 'Justice for Lyn' cause in other ways because of the podcast or other media, including talkback radio or social media platforms which promoted that cause) and who did not seek to be excused, either because they have not heard of the case or, even if they had, because they considered themselves capable of bringing their own judgment to bear upon the evidence. [382] Since the Court has no knowledge of the composition of the jury panel and no power to 'poll' a jury, I cannot do more than find (as I do) that there is at least some prospect of swearing an impartial jury to try the question of the applicant's guilt, however difficult or ultimately impossible that might prove to be. The related question whether I am satisfied that, once empanelled, the twelve or fifteen jurors sworn to try the applicant's guilt will also abide by a direction under s 68C of the Jury Act not to seek to access the podcast again (or indeed for the first time) and to abide by a judicial direction that they not discuss the case with anyone, must be answered in the affirmative." 1. Finally for present purposes, her Honour said this at [441]: "[441] Despite the combined weight of the impact of a delay of 38 years before the decision was made to prosecute the applicant, including the inadequacies of aspects of the investigation conducted by Detective Poole between 1998 and 2015 and the loss of material documents in the Mayger investigation which preceded it, and the very substantial prejudice occasioned by the broadcast of The Teacher's Pet podcast over a period of months before the applicant was arrested and charged on 3 December 2018, including its capacity to erode the applicant's right to silence and the presumption of innocence, after undertaking the balancing exercise inherent in the exercise of the discretion to order a permanent stay of the applicant's trial, and after taking into consideration and applying the principled approach in the authorities to which I have referred, I am not persuaded that, either individually or in combination, those factors outweigh the considerable public interest in the continuation of a trial of a man who is alleged to have murdered his wife. Neither am I persuaded those 'defects' cannot be satisfactorily addressed by the trial process, including by a range of measures available to the trial judge, so as to ensure the applicant's trial is conducted in accordance with fundamental principles of fairness." [Emphasis added] 1. Her Honour's decision was upheld in the Court of Criminal Appeal in Dawson v R [2021] NSWCCA 117, in the course of which Bathurst CJ said this: "[28] It is important to note that in the immediately preceding paragraph [382], the primary judge correctly stated that the question for determination was 'whether there is a 'real or substantial risk' that, despite the best endeavours of the trial judge and the essential trust that courts are entitled to repose in the jury system, there will be members of the jury who have prejudged [the applicant's] guilt, perhaps without being aware of it.' Senior counsel for the applicant accepted that that was the correct approach. Her Honour adopted the same approach in her concluding paragraph (see [441] of the primary judgment)." 1. The High Court in Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [18] accepted that the following statements made by Mason CJ and Toohey J in The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 at 605-606 can be regarded as authoritative: "[A] permanent stay will only be ordered in an extreme case and there must be a fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'. And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre‑trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial." 1. Clearly enough, Dawson was a case involving an application for a permanent stay, not an application for a take down order. Fairly obviously, no such order was sought in that case having regard to the pervasive nature of the publicity concerned and the obvious futility of removing, or of attempting to remove, it from the public domain. 2. In the present case, Mr Haile seeks an order to take down published material that might possibly influence jurors in his trial. In Dawson, the assumption upon which the parties and the Court implicitly proceeded was that there was a significant likelihood that some members of any jury panel would already have been exposed to the publicity in question. Even notwithstanding the fact that the risk in Dawson would appear to have been greater than here, Fullerton J, the Court of Criminal Appeal and, by inference from its rejection of Mr Dawson's application for Special Leave to Appeal, the High Court of Australia, all embraced the principle that judicial directions and orders were capable of ensuring that Mr Dawson would receive a trial by jury according to law. 3. Adamson J referred to this in Dawson in the Court of Criminal Appeal by reference to what was said in the High Court in The Queen v Glennon at 605-606 as follows: "[135] Further, their Honours considered that it was insufficient to show that it was possible that the jury might have acquired some knowledge of publicity during the trial and said, at 603: 'The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence.' [136] At 604, their Honours said that it was not, in the absence of evidence, legitimate to infer that the jury did not comply with the trial judge's direction to decide the case only on the evidence. They said: 'The majority's reasoning was also based on materials which could not support the inferences drawn, took little, if any, account of the effect of the trial judge's instructions and disregarded the community's right to expect that a person accused of a serious criminal offence will be brought to trial.' [137] Thus, a fair trial does not depend on all members of the jury being entirely ignorant of the pre-trial publicity…" 1. Additionally, in Dawson the publicity was current and continuing. In the present case it is historical. I accept that having regard to the ease with which the public can gain electronic access to this material, the fact that it is old recedes in significance. However, the publicity given to Mr Dawson included references that amounted to conclusive, albeit extra judicial, expressions of his guilt for the death of his wife. In the present case, published references to Mr Haile's "guilt" will be accompanied by references to his conviction having been set aside. Indeed, the very fact that he will again be on trial charged with the same murder, something of which the jury will be well aware, will itself carry the message that his previous conviction must be disregarded as a flawed result. 2. In all of these circumstances, I am not satisfied that the orders sought by Mr Haile are necessary as that expression is understood in s 8 of the Suppression Act. It does seem to me, however, that publication of this judgment and of the evidence and submissions upon which it is based should be suppressed. Mr Haile's notice of motion seeks such an order. Hamill J made a similar order in Qaumi that was not disturbed on appeal. I will invite the parties to indicate their attitude to that patently uncontroversial course, having regard to the fact that it has not yet been considered in argument before me. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 April 2023