DPP v KN (a pseudonym)

There is no express statutory power for this court to make such an order. In R v Lehrmann (No 2) [2022] ACTSC 92, I indicated at [38] that I was content in that case to assume that such power fell within the Court's inherent power as a superior court of record to make such orders as are necessary to preserve the accused’s right to a fair trial. The inherent power has elsewhere been described as an inherent power to make such orders as are necessary to ensure the proper administration of justice. However the content of the power is framed, it is clear enough that the test is one of necessity. It is also established that an application will fail the test of necessity if the orders sought are likely to be ineffective, are likely to be futile or are not necessary when regard is had to the legal principle that jurors follow the directions of the trial judge. The present application must fail for each of those three reasons.

The terms of the orders sought as set out in KN’s original application were amended in response to points made on behalf of the Australian Broadcasting Corporation, which appeared on the application and provided helpful written submissions. The submissions note that the entitlement of a news media organisation to be heard on such an application is well established, citing my decision in R v Lehrmann (No 2) at [36]. The form of orders provided in response to the ABC’s submissions include orders purportedly sought against a number of newspaper entities, but in each case the order names the masthead rather than the entity, or else names an entity as to which there was no evidence that that entity owned the relevant masthead.

For example, orders were sought against, “News Life Media Pty Ltd”, but there was no evidence as to what is the business of that corporation or what control it has over the website on which it is alleged that one of the articles appears. Orders were sought against “Australian Community Media”, which it is not even clear is a corporation or other legal entity able to be sued. Orders were sought against “Region Group Pty Ltd”. It may be inferred that the applicant apprehends that is the entity that operates the newspaper circulated in Canberra known as Region Canberra. However, again, there was no evidence of that fact. The only entity named in the orders as to which there was clarity about its status and capacity to comply with any order of the court was the Australian Broadcasting Corporation, and that was because it appeared and was represented by Senior Counsel.

The form of the orders sought accordingly invokes the same difficulty as was identified in the judgment of Basten JA in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52. His Honour said at [78]: As a matter of construction, that which is ineffective, cannot be described as “necessary”.

Justice Basten went on to explain that the orders made in the District Court (the proceeding in the Court of Criminal Appeal in Ibrahim being an appeal from those orders) were: … ineffective for two reasons. First, to be effective, they had to bind numerous parties who were not before the court. Indeed, it is not possible to know, on the evidence, who those parties are. They will either include those in control of the content of web sites throughout the world which may contain the offending material, or those who operate search engines, or both categories.

I acknowledge that, in Ibrahim, the form of orders sought was considerably more broad, but it is nonetheless the case that, if it is sought to have the articles nominated in the accused's application removed from the internet, it is likely that requires action on the part of entities not even named in the orders. I simply cannot know the position in that regard.

Returning to the judgment of Basten J in Ibrahim, his Honour continued, still at [78]: Secondly, even if it were possible to identify all relevant parties, enforcement against any party not resident in or operating from New South Wales would be impracticable, if not impossible.

The same may be said in the present case in respect of any entity not operating in the Territory. Accordingly, it is clear, in my respectful opinion, that the orders sought in the present case, if made, are likely to be ineffective.

Secondly, it is clear that the orders sought, if made, are likely to be futile. Again, that was a consideration in Ibrahim at [76], where Basten JA said: An order will also fail the necessity test if it is futile. An order will not necessarily be futile because material is available otherwise in cached form, from which it may be removed once the source page has been removed, or is available on web sites overseas. The mere fact that a search has revealed many thousands of "hits" does not necessarily mean that offending material has been readily located. It is necessary to refer to items which have been given priority in response to the search.

However, it is clear in my assessment in the present case that, in order for the information concerning the accused to be cleansed from the internet, there would need to be further steps taken than simply the taking down of the named articles referred to in the orders. For that reason, I am not satisfied that the relief sought would have utility.

Thirdly, and perhaps most importantly, as explained by Basten JA in Ibrahim, it is necessary to consider the legal assumption that jurors will follow the directions of the trial judge. It is important in that context to have regard to the process by which the jurors become jurors in a criminal trial. Members of the jury panel summoned for the purpose of a trial would not know, until called into the trial judge’s court, the name of the accused. This accused, unlike in the case of R v Lehrmann (No 2), has not acquired the kind of notoriety from which it could be inferred that any potential member of the panel might have heard his name.

Once brought into court the jury panel is, in effect, captive in the courtroom until a jury is empanelled, at which point those members of the panel not empanelled are released. Those who are then on the jury are immediately subject to the usual constraints of a jury trial and, in this jurisdiction, kept in the guard of the sheriff's officers, who take appropriate oaths or affirmations to keep the jury in their charge, not to let any person speak to the jurors, or to speak to the jurors themselves in relation to the issues in the trial. The jurors are then given careful directions both in the judge's opening remarks and at the conclusion of each day as to the prohibition on undertaking research. They are told in that context that it is an offence to do so.

There was, in this jurisdiction, a notorious trial in which a person who has commonly been referred to as “the rogue juror” (and it is the prospect or spectre of a rogue juror that triggers the present application) did undertake his own research notwithstanding those many warnings. Importantly, or perhaps I should say interestingly, the material the juror had researched and brought into the jury room was not one of the probably hundreds if not thousands of articles concerning the accused, but a piece of scholarly research setting out the learnings about the likely responses of a victim of sexual assault.

It can be concluded from that experience that, even if the internet were cleansed of newspaper articles potentially prejudicial to an accused person, it is unlikely to be cleansed of every conceivable piece of information a rogue juror might seek to obtain concerning the issues in the trial. In R v Lehrmann (No 2) the research, if taken into account by the jurors, would have been to the prejudice of the accused because it was the kind of information the Crown could have led by way of expert evidence but had not led in that case.

There is a further reason the court should adhere to the deliberately high test of necessity before making orders of this kind against a media organisation. It is, of course, the principle of open justice. If orders of the kind now sought were to become commonplace, many media outlets would, in effect, be constrained from a very large part of their regular reporting. It is important, and a central principle of the criminal justice system, that proceedings be able to be reported on openly by the media. That in turn is the underpinning of other legal principles, including the principle of deterrence in sentencing. A sentence cannot have deterrent effect if the media are customarily restrained from publishing any information about it.

Finally, I note that the accused relied in support of the application on the fact that a take-down order of the kind now sought was made in other proceedings in this court in the matter of R v Kahlon; R v El-Debel. It is true, and I have checked the court file to confirm this, that Elkaim J did make take-down orders in that case in respect of a small number of media articles. The transcript indicates that those orders were made the week before the trial was due to commence. I have considered the transcript of the application that led to his Honour making that decision. Importantly, it was made plain that the media outlets had not been informed. Indeed, the form of order made suffered from the same vice as in the present application, in that the articles were identified either by the name of the article or the name of the masthead rather than the legal entity responsible for publication.

With great respect to Elkaim J, the course taken by his Honour in that case ought not to have been taken. His Honour indicated, having regard to the proximity of the trial, that he was prepared to make the orders and give the entities in question leave to be heard if they wished to after the orders had been made. However, all of the problems identified by Basten JA in Ibrahim as to the enforceability of the orders existed in the matter of R v Kahlon; R v El-Debel. In short, the existence of those orders (made without published reasons) is not a precedent for making such orders in this jurisdiction.

Meanwhile, as observed in the written submissions on behalf of the Australian Broadcasting Corporation, it should be acknowledged that, since the publication of the two decisions referred to by the applicant decided in 2011 of R v Perish; R v Lawton; R v Perish [2011] NSWSC 1102 and R v Debs [2011] NSWSC 1248, there have been no reported cases of the New South Wales Supreme Court granting a take-down order in the context of criminal proceedings. The jurisprudence in New South Wales has indeed developed in the opposite direction: see Nationwide News Pty Ltd v Qaumi [2016] NSWCCA 97; 93 NSWLR 384 in the Court of Criminal Appeal, and R v Haile [2023] NSWSC 52, a decision of Harrison J.

For all of those reasons, I am not persuaded that a basis for making the orders sought has been established.