New South Wales Supreme Court CITATION : Regina v A, Regina v S, Regina v M [2005] NSWSC 478 HEARING DATE(S) : 17 May 2005 JUDGMENT DATE : 17 May 2005 JURISDICTION : Common Law Division JUDGMENT OF : Hidden J DECISION : Application to revoke non-publication order refused CATCHWORDS : CRIMINAL LAW: Sexual assault trials - back to back - same accused - order prohibiting publication of evidence in first trial - whether order should be revoked Criminal Procedure Act 1986 LEGISLATION CITED : Crimes Act 1900 John Fairfax Publications v The District Court [2004] NSWCA 324 Nationwide News v The District Court (1996) 40 NSWLR 486 CASES CITED : Regina v MSK and Ors [2004] NSWSC 1009 Re K [2002] NSWCCA 374 ABC (applicant) Regina (Crown) (respondent) PARTIES : A (respondent) S (respondent) M (respondent) FILE NUMBER(S) : SC 2003/3; 2003/158; 2003/149 S Dawson (applicant) K McKay (Crown) (respondent) COUNSEL : K Chapple SC (respondent A) A Morrison (respondent S) A Haesler SC (respondent M) S Collins - ABC Legal Services (applicant) S Kavanagh (Crown) (respondent) SOLICITORS : C Abbott - Watsons (respondent A) A Bannister - Galloways Solicitors (respondent S) C Barmes - A L Wunderlich (respondent M) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST HIDDEN J 17 May 2005 2003/3 Regina v A 2003/158 Regina v S 2003/149 Regina v M NOT TO BE PUBLISHED OTHER THAN TO THE PARTIES AND THEIR LEGAL REPRESENTATIVES UNTIL FURTHER ORDER BY THE COURT – ORDER SINCE REVOKED JUDGMENT – On application by ABC to revoke non-publication order 1 HIDDEN J: There are in force orders prohibiting publication of the names of the three accused in this case, together with the name of the complainant and two young female witnesses. In addition, I made an order that there be no publication of any of the evidence in this trial until further order of the Court. That order was made in anticipation of two further trials involving some of these accused, which are to proceed immediately after this one. The order is of its nature a temporary one, and it is likely that it would be lifted at the end of this series of trials about six weeks hence. The Australian Broadcasting Corporation applies for the revocation of that last order. 2 Mr Dawson of counsel, who has argued the application, took me to the important decision of the Court of Appeal in John Fairfax Publications v The District Court [2004] NSWCA 324. There are some similarities between that case and these, although there are obvious differences. In that case the order appealed against was one suppressing publication of the verdict in a trial which otherwise had been the subject of publicity, that order having been made in anticipation of a further trial to be held some months later. Mr Dawson did not suggest that there was any precise analogy between that case and the present cases but he relied upon the judgment of the Chief Justice for a number of principles which must guide my decision in the present matter. 3 He referred to what the Chief Justice had to say about the importance of open justice, and the value to the community of fair and accurate media reporting of court proceedings. The importance of those considerations is beyond argument. 4 Nevertheless, the law recognises that there are cases from time to time where the publication of evidence must be suppressed, at least temporarily. Indeed, the order I made relies upon the statutory power conferred by s292 of the Criminal Procedure Act. A provision of that kind has been in force in relation to proceedings of this kind for many years. Its predecessor was s578 of the Crimes Act. The section is in broad terms, and it would seem that it is proper to invoke it to protect the interests of an accused: see Nationwide News v The District Court (1996) 40 NSWLR 486, per Meagher JA, with whom Priestley JA agreed, at 498. 5 Mr Dawson did not cavil with the power of this Court to make an order of the kind I have made. What he questioned was the necessity to make it. As to that, he took me to some passages of the judgment of the Chief Justice in the John Fairfax case which emphasise the importance of that consideration. At [51] of the judgment, the Chief Justice spoke of the need to determine that the objective of ensuring the fairness of a subsequent trial cannot be achieved in any way other than prohibition of publication of the evidence. At [94] – [96] he spoke of the high degree of certainty required to meet that test of necessity. 6 At [55] the Chief Justice observed that adjournments and stays are ordinarily sufficient to ensure a fair trial of the accused. At [63] his Honour touched on the very situation which we are concerned, and I should set out here what his Honour said: There are situations in which back-to-back trials are desirable. The issue would arise most acutely in such a case. However, those situations encompass considerations such as the convenience of witnesses, the efficient deployment of prosecutorial resources, the effective management of a court's caseload. Considerations of convenience and efficiency are a wholly inadequate basis to justify the implication of a power to prohibit publication of a verdict. If such considerations are to operate as a qualification of the principle of open justice, express statutory authority is required. 7 His Honour was talking about the power of a District Court judge to make such an order. As I have said, the power to make the present order is not in question, but the Chief Justice's observations are apposite to its exercise. 8 Mr Dawson submitted that in the present case the fairness of the trials of the accused yet to be heard would be protected by the orders which are already in place, that is, orders suppressing the publication of names of the accused and of the complainant. He submitted that appropriate directions would be given to the juries in those cases to disregard any publicity they might have seen or read, and to decide each case on the evidence before them. He referred to what the Chief Justice had to say in the John Fairfax case at [103] ff about the confidence trial judges are entitled to have in the capacity and willingness of juries to obey judicial directions. He submitted that, in any event, fairness could be achieved, if necessary, by the adjournment of the subsequent trials, and that that course would be preferable to a prohibition on publication of the evidence in the present case. 9 The Crown prosecutor and counsel for the three accused all opposed the application and submitted that the non-publication order should remain in place. It is convenient to assess that submission by reference to the Crown case statements in relation to each of the trials, which I will have marked MFI 3 in due course so as to be identified for the purpose of this judgment. 10 What concerns the Crown prosecutor and defence counsel are the obvious similarities between this case and the trials yet to be heard. The three accused are brothers. Each of the complainants is a young girl in her early-to-mid teens. All the offences are said to have taken place at the same location, that is, the home where they were living at Ashfield. There is a similarity in relation to the allegations of sexual conduct and in relation to the surrounding circumstances. 11 Indeed, it is such that the Crown prosecutor has foreshadowed the tender of evidence in this trial in the other trials as tendency or coincidence evidence. That is certainly his intention in relation to the second trial although, as I recall it, he is considering his position in relation to that as to the third trial. I make no comment about the availability of that course because I have not yet heard argument about it, and I have no doubt there will be argument about it, but it is certainly true that there are marked similarities in the overall circumstances between this case and the next trial involving two of the present accused, as there are between this case and the third trial involving only one of them. 12 I have given this matter anxious consideration. In my view, if the trials were to proceed back-to-back, there is very real danger, indeed a virtual inevitability, that at least one of the jurors in each of the subsequent trials would note the similarities between the published evidence in this case and the allegations in those trials, and would make the very connection which the non-publication order is designed to prevent. The difficulty is the constellation of similarities, and I do not believe that it can be averted by the suppression of parts of the evidence, for example, a suppression of the location where the offences occurred. That course was proposed by Mr Dawson, but I just do not think it would work. 13 Assuming the trials were to run back-to-back, in my view the test of necessity propounded by the Chief Justice in the John Fairfax case is met. I believe that it could be said that there is a high level of certainly that prejudice would ensue in the subsequent trials: see the judgment at [101]. 14 True it is the juries in the subsequent trials could be directed to disregard any publicity they had read and to decide each case only on the evidence related to it. The view I have reached is not intended as a reflection upon potential jurors, or as an insinuation that they are exceptionally fragile and prone to prejudice: see the judgment of the Chief Justice at [103]. Notwithstanding the confidence that trial judges ought to have in the respect of juries for their directions, the courts have long recognised there are situations of prejudice which strain that confidence to the limit, and which need to be remedied by some means other than simply directions. 15 So much is inherent in the judgment of Simpson J, in relation to these very cases, in R v M S K and Ors [2004] NSWSC 1009. It is also inherent in the judgment of the Court of Criminal Appeal in Re K [2002] NSWCCA 374. In both those decisions temporary stays were granted because of publicity likely to prejudice the accused in an upcoming trial. 16 The question remains whether a further adjournment of the outstanding trials in this case might meet the situation, and might safely allow publicity of the previous trial. My fear is that only a lengthy adjournment of the subsequent trials would guard against that danger but, in any event, that is simply not an acceptable option. 17 I shall also have marked MFI 4 the most recent chronology provided by the Crown prosecutor of the history of these trials. It is a sorry history. They have been waiting far too long to come to hearing, and they must proceed to hearing promptly. Trials of this nature inevitably take a heavy emotional toll upon all concerned, especially, in the present cases, the young complainants. Delay only worsens that emotional toll, and carries with it the risk of miscarriage of justice. 18 The passage from the judgment of the Chief Justice in the John Fairfax case at [63], which I have quoted, refers to no more than considerations of convenience and administrative efficiency. Far more important considerations are involved here: those to which I have just referred. For those reasons I would not consider a further adjournment of the subsequent trials so as to enable publicity of the present one. 19 Accordingly, the application is refused and the non-publication order will remain in force. ********** 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.