Supreme Court New South Wales Medium Neutral Citation: R v PERISH; R v LAWTON; R v PERISH [2011] NSWSC 1101 Hearing dates: 6 July 2011 Decision date: 11 July 2011 Jurisdiction: Criminal Before: Price J Decision: 1In the motion of Anthony Perish, I order that the article from the Sydney Morning Herald entitled 'Men accused over drug dealer's murder' dated 6 August 2010 be immediately removed from the Sydney Morning Herald website: 'http://news.smh.com.au/breaking-news-national/men-accused-over-drug-dealers-murder-20090120-7lbi.html' and from any website under the control of Fairfax Media Publications Pty Limited in New South Wales, and not be published on the internet by Fairfax Media Publications Pty Limited in New South Wales until after the trial and verdict in the matter of R v Anthony Perish or further order. 2The motion of Matthew Lawton is dismissed. 3The evidence given in these motions before the court, the argument of counsel, and this judgment not be published until after the trial and verdicts in the matters of R v Anthony Perish, R v Matthew Lawton and R v Andrew Perish or further order. Catchwords: CRIMINAL LAW - internet take-down orders - principle of open justice - test of necessity - whether court satisfied to a high degree of certainty that orders are necessary to ensure a fair trial. Legislation Cited: Court Suppression and Non-publication Orders Act 2010 Cases Cited: BUSB v R [2011] NSWCCA 3 Attorney-General for New South Wales v Nationwide News Pty Ltd [2007] NSWCCA 307; (2007) 73 NSWLR 635 John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 R v Yuill (1993) 69 A Crim R 450 Category: Interlocutory applications Parties: Anthony John Michael Perish (First applicant) Matthew Robert Lawton (Second applicant) Fairfax Media Publications Pty Limited (Respondent) Representation: C A Davenport SC (First applicant) S Hanley SC (Second applicant) A T S Dawson (Respondent) William O'Brien & Ross Hudson Solicitors (First applicant) Matouk Joyner Lawyers (Second applicant) Johnson Winter & Slattery (Respondent) File Number(s): 2009/148002 2009/145260 2009/150111 Judgment 1By notices of motion dated 4 July 2011, Anthony Perish and Matthew Lawton (the applicants) seek orders that the following articles be removed from the internet: (1) the article Accused win battle to delete web history under the authorship of Geesche Jacobsen dated 17 February 2011; and (2) the article Judges who apply gag patronise jurors under the authorship of Tim Dick dated 18 February 2011. 2The orders that Mr Lawton seeks, are framed so as to enable the proper officer of "Fairfax Media Limited" to block public access to the articles as an alternative to removing them from any website under its control. 3These articles were published in the Sydney Morning Herald on 17 February and 18 February 2011 but remain on the website, which may be briefly identified as htt p ://www.smh.com.au (the website). It is from this website or any website under the respondent's control that the applicants ask that the articles be taken down. 4The respondent to Anthony Perish's motion was identified as "Fairfax Media" whereas the second respondent to Mr Lawton's motion was identified as "Fairfax Media Limited". Mr Dawson of counsel, who appeared in response to service of the motions, advised the court that the correct respondent is Fairfax Media Publications Pty Limited. I grant liberty to the applicants to amend the notices of motion so that the respondent is correctly named as Fairfax Media Publications Pty Limited. 5Matthew Lawton's motion also refers to the "DPP" as being the first respondent. I do not know why it was considered necessary to join the Director of Public Prosecutions as a party to these proceedings. In any event, the Director did not appear but Mr Leask, who represents the Crown, apprised the court of the Crown's attitude to the applications. 6Anthony Perish and Matthew Lawton are both charged with the murder of Terrence Falconer and with conspiring to murder Terrence Falconer. Andrew Perish is charged, along with Anthony Perish and Matthew Lawton, with conspiring to murder Terrence Falconer. All three are to stand trial together in this court and it is anticipated that a jury will be empanelled today. 7Anthony Perish is represented by C A Davenport SC. Matthew Lawton is represented by S Hanley SC and Andrew Perish, on the applications, was represented by J D O'Sullivan. 8Another article is sought to be removed by Anthony Perish from the website. This article, Men accused over drug dealer's murder, was published on 6 August 2010. 9The article commences by linking the murder of Terrence Falconer with police investigations "into a string of other slayings and crimes in Sydney and on the Gold Coast". The article refers to Anthony Perish and witness E being remanded in custody after being charged with conspiring to murder Terrence Falconer and to a police raid on an address linked to them that revealed firearms including "a machine gun - style pistol" and a large quantity of ammunition. The article then details "other crimes, which may be linked" to Terrence Falconer's murder. 10Although Mr Dawson did not address the court in relation to this article, he made it clear that the respondent did not consent to its removal from the respondent's website. Mr Dawson sensibly anticipated that the article was of the same kind as those I ordered be removed from various websites on 17 February 2011. 11The article is highly prejudicial to Anthony Perish because it associates him with crimes for which he has not been charged. For the reasons provided in my judgment delivered on 16 February 2011, I consider that it is necessary to make an order for the removal of this article from the website to ensure that the applicants (and Andrew Perish) receive a fair trial. 12The argument of counsel upon the motions focussed upon the articles of 17 February 2011 (annex 1 (a)) and 18 February 2011 (annex 1 (c)) to the affidavit of William O'Brien, sworn 4 July 2011. Mr Dawson submitted that these articles fell into a different category to the articles of a "historical kind" that were the subject of my orders on 17 February 2011. Before venturing into the competing arguments, it is convenient to refer in a summarised way to these articles. The February articles 13The article Accused win battle to delete web history written by Geesche Jacobsen, the legal affairs reporter for the Sydney Morning Herald, refers to newspapers, including the Herald , being ordered to "remove old articles from their websites after a court ruled they might interfere with a fair trial". Ms Jacobsen writes: "...the decision has no impact on thousands of other internet hits for the names of one or more of the accused - Anthony John Michael Perish, Mathew Robert Lawton, and Andrew Michael Perish. The court heard a Google search last month found 6930 references to the name of one of the men on Australian sites alone." 14Ms Jacobsen, inter alia , refers to the chief executive of News Ltd "last week" calling for an end to "the nonsense" of take-down orders that are "the modern equivalent of burning books". The president of the NSW Council for Civil Liberties is quoted as saying that orders against internet publication appeared to discriminate against the internet "because courts never ordered the removal of a microfiche from every library in the State". 15The article Judges who apply gag patronise jurors was written by Tim Dick, the media editor of the Sydney Morning Herald. Mr Dick, inter alia , writes: "This week Justice Derek Price ordered media companies to remove old articles referring to matters set to be tried next week. Against the arguments of Fairfax, publisher of the Herald , and News Ltd he did so to reduce the likelihood of a juror reading those articles or having a busybody share their contents with them - the implication being such talk might distract them from the evidence. That trial date was vacated yesterday for reasons themselves suppressed by the judge." 16Mr Dick goes on to refer to the "practical pointlessness" of the orders which he states is: "... illustrated by searching for the full name of one of the accused in this case, Anthony John Michael Perish. Google said yesterday there were 2380 hits of that exact phrase. There are links on pages such as 123people.co.uk and findagrave.com, both beyond the jurisdiction of the NSW Supreme Court." 17The journalist opines that aside from the practical pointlessness, there are larger issues with suppression orders being "that for too long some judges considered that ensuring a fair trial trumps the legitimate public interest in being able to see the trial" and "they flow from a fear of prejudice rather than proof". Argument 18Ms Davenport submitted that a reader of the articles would conclude that there are a large number of articles on websites which relate to Anthony Perish. Furthermore, the articles seek to denigrate the orders that the court made. Should a juror be made aware during the course of the trial of the articles, Ms Davenport put to me, it would undermine the directions given to the jury. 19Mr Hanley drew my attention to Ms Jacobsen's mention of 6,930 references on Australian websites without naming the accused against whom the references were found. He said that an available suggestion to a reader of the articles was that there may be thousands of other references on the internet to Mr Lawton which may be prejudicial to him. Mr Hanley submitted that the articles were unfair, improper, patronising and had the potential to undermine directions given during the trial. 20Mr Dawson contended that the articles did not contain any of the material that led to the take-down orders of 17 February 2011. He argued that the articles presented a report of the court's rulings, albeit unfavourable. Mr Dawson submitted that the real issue was whether the court could be satisfied to a high degree of certainty that the orders were necessary to secure the proper administration of justice. Mr Dawson cited John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 and Attorney-General for New South Wales v Nationwide News Pty Ltd [2007] NSWCCA 307; (2007) 73 NSWLR 635. It was put to me that, far from denigrating the orders that might be made during the trial, the articles reflect that there are competing views about the extent of free speech and the need to protect the fair trial process. When referring to the principles of open justice, Mr Dawson argued that should the orders be made, the court would in effect be stating that the respondent was not permitted to maintain a report of proceedings that occurred in open court because of a concern that the articles might be accessed in some way by the members of the jury, which would assume defiance of trial directions. Such an assumption was a matter of impermissible speculation. 21In reply, both Ms Davenport and Mr Hanley pointed out that the articles were neither fair nor accurate reports of what had occurred in this court. 22Mr Leask told me that the Crown was "neutral" about the applications. Decision 23There is no dispute that the court has the inherent jurisdiction to make the orders sought. Furthermore, s 8 of the Court Suppression and Non-publication Orders Act 2010 (the Act) relevantly provides: "(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." 24I accept that the February articles are different from the articles that were the subject of the orders made on 17 February 2011. Those articles associated the applicants with crimes for which they have not been charged and are not standing trial. Questions of open justice did not apply. 25The open justice principle, however, arises in the respondent's opposition to the motions. Ms Jacobsen's article provided in part a report of the evidence given in open court during the application to vacate the take-down orders and of the judgment. Judges who apply gag patronise jurors is a piece of journalism critical of the judgment. In my opinion, the open justice principle extends beyond the reporting of what occurs in the courtroom so as to include polemical debate of a court's decision. The principle of open justice requires "that once material is given in evidence or otherwise made available in judicial proceedings, an order prohibiting its publication will not be made unless it is found necessary for the administration of justice": Attorney-General for New South Wales v Nationwide News Pty Ltd per Hodgson JA at [25]. 26It is well established that the stringency with which the test of necessity is to be applied may vary. In BUSB v R [2011] NSWCCA 3, Spigelman CJ said at [33]: "A test of necessity can be applied with varying degrees of strictness. Where, as is the case here, the power said to be implied impinges upon a fundamental principle of the administration of criminal justice - the right to confront accusers - the test must be applied with a higher level of strictness than may be applicable in other circumstances. (See John Fairfax v District Court at [51]) The extent of the power in such circumstances may be "minimalist". (See Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429 at [144].)" 27A fundamental principle of the administration of criminal justice is the principle of open justice. Where the application of the power to make a non-publication order conflicts with the principle of open justice the test of necessity must be applied with strictness. A high level of certainty that prejudice of the trial will ensue is required: John Fairfax Publications Pty Ltd v District Court of New South Wales per Spigelman CJ at [51] and [101]. As the Chief Justice said at [51]: "Accordingly, it is necessary to determine that the objective of ensuring the fairness of a subsequent trial cannot be achieved in any other way." 28The Act came into force on 1 July 2011. The Act does not define the term "necessary". Section 6 provides that a court must take into account in deciding whether to make a non-publication order, "that a primary objective of the administration of justice is to safeguard the public interest in open justice". It seems to me that the Act does not impact upon the pre-existing law as to the degree of strictness with which the test of necessity is to be applied. 29The orders made in February did not conflict with any fundamental principle of the administration of criminal justice. The level of strictness with which the test of necessity was applied was not as high as that required in the present circumstances. In the judgment delivered on 16 February 2011, I said at [42]: "The term "necessary" does not have the meaning of "essential", rather it is to be "subjected to the touchstone of reasonableness": Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 452. The concept as to what reasonably is necessary is to be approached in a common sense way: State Drug Crime Commission (NSW) v Chapman (1987) 12 NSWLR 447 at 452 per Allen J. There must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order removing material from the internet and prohibiting publication of that material during the trial. Mere belief that the order is necessary is insufficient." 30Accordingly, the test applied was whether it was reasonably necessary to make the orders for removal to ensure that each of the accused had a fair trial: see [49] of the judgment delivered on 16 February 2011. In the present circumstances, the test is whether the court is satisfied to a high degree of certainty that it is necessary to make the orders for removal of the February articles to ensure that each of the accused has a fair trial. 31Potential prejudice to the applicants (and to Andrew Perish) in Ms Jacobsen's article arises particularly from the heading, the reference to removal of "old articles" from websites, the naming of the accused and the detailing of thousands of other internet hits upon which the judgment was reported as having no impact. 32The publication of the article at a time when a jury panel had been on notice for some two to three weeks and the jury was shortly to be empanelled seriously prejudiced the likelihood of a fair trial. There was a real chance at that time that the publication would come to the attention of at least some of the members of the panel in waiting, either by reading the article in the newspaper's broadsheet or on the website. None of the potential jurors had had the benefit of trial directions. I concluded that it was necessary to adjourn the commencement of the trial. The article is, however, no longer "today's news" but is archived on the internet. 33Potential prejudice to the applicants (and to Andrew Perish) in Mr Dick's article arises particularly from the inaccurate reference to the removal of "old articles set to be tried next week", the naming of Anthony John Michael Perish and the detailing of "6380 hits of that exact phrase". 34I mention in passing that contrary to Mr Dick's understanding, my orders did not impact in any way upon "the legitimate public interest in being able to see the trial". As I emphasised at [37]: "...none of the defence counsel are adverse to accurate reporting of the arrest or charging of the three accused, nor are they adverse to the evidence in the trial being reported." 35However, I do not accept the applicants' submissions that the articles, if read, have the potential to undermine my authority as the trial judge. As Kirby A-CJ said in R v Yuill (1993) 69 A Crim R 450 at 453 - 454: "There is an increasing body of judicial opinion, lately expressed, to the effect that whatever pre-trial publicity exists, jurors, when they take on the solemn responsibility of the performance of their duties in the courtroom, differentiate between gossip, rumour, news and opinion which they hear before the case and the evidence which they hear in the court in the trial for which they are empanelled." 36The jury will be given directions to decide the cases solely on the evidence placed before them in court and of the prohibition upon inappropriately accessing the internet. The possibility that a juror might act in defiance of the court's directions or that there might be inadvertent contact with a member of the public does not satisfy the test of necessity when applied with strictness. The court must assume that jurors will accept and conform with the trial directions. The test of a high degree of certainty rather than reasonableness does not permit the court to remove the February articles in order to assist the jurors by making their task easier. 37I am not satisfied to a high degree of certainty that it is necessary to make the orders removing the February articles from the respondent's website to ensure that each of the applicants (and Andrew Perish) has a fair trial. The objective of ensuring a fair trial will be achieved by trial directions. I am not satisfied that the orders are necessary to prevent prejudice to the proper administration of justice. I do not propose to make the orders sought. 38There is another matter that must be mentioned. Reporting by the media of the evidence and argument upon the present motions and this judgment during the trial is likely to cause prejudice to the accuseds' right to a fair trial. A report will be available to a member of the jury when he or she reads the daily news. As fresh news, such a publication will not be covered by the trial directions. Accordingly, I am satisfied to a high degree of certainty that it is necessary to make such a non-publication order covering these motions to prevent prejudice to the proper administration of justice during the trial. Orders 39I make the following orders: (1)In the motion of Anthony Perish, I order that the article from the Sydney Morning Herald entitled 'Men accused over drug dealer's murder' dated 6 August 2010 be immediately removed from the Sydney Morning Herald website: 'http://news.smh.com.au/breaking-news-national/men-accused-over-drug-dealers-murder-20090120-7lbi.html' and from any website under the control of Fairfax Media Publications Pty Limited in New South Wales, and not be published on the internet by Fairfax Media Publications Pty Limited in New South Wales until after the trial and verdict in the matter of R v Anthony Perish or further order. (2)The motion of Matthew Lawton is dismissed. (3)The evidence given in these motions before the court, the argument of counsel, and this judgment not be published until after the trial and verdicts in the matters of R v Anthony Perish , R v Matthew Lawton and R v Andrew Perish or further order. ********** 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: 15 September 2011