AW v R

1. [1]

   PAYNE JA: The applicant, AW, has been ordered to stand trial in the District Court charged with sexual assault or, alternatively, aggravated indecent assault contrary to ss 61J and 61M of the Crimes Act 1900 (NSW).

2. [2]

   On 6 June 2016, Buscombe DCJ in the District Court dismissed an application by AW for orders under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), referred to in this judgment as "take down" orders.

Relevant background

1. [3]

   The applicant will be referred to as “AW” by order of Buscombe DCJ, which order has not been challenged on this application.

2. [4]

   The Crown case is that the applicant digitally penetrated his girlfriend’s 15 year old sister on or about 21 September 2013. The accused was arrested and charged with the offences described above in January 2014. The accused had pleaded not guilty and was due to stand trial on 31 May 2016 at Penrith District Court.

3. [5]

   On 14 October 2015, the applicant was also charged with aggravated sexual assault in the company of others or, alternatively, aggravated indecent assault, arising from a separate incident. The allegations in that second case are that whilst AW was on bail for the first offence, he and up to seven men together raped an incapacitated 16 year old girl. The offence was allegedly recorded by one of the men on a GoPro device.

4. [6]

   The criminal proceedings arising from this incident, and in particular the alleged recording on a GoPro device of the sexual assault, were reported in detail by the Australian and international media. AW’s name appears in many of those media reports.

5. [7]

   A large number of those media reports remain easily accessible online, including in both traditional media websites and social media websites such as Facebook.

6. [8]

   The trial in relation to the first offence is now fixed to commence in the District Court in February 2017. A trial date has not been set in respect of the GoPro sexual assault charges.

Issues on the appeal

1. [9]

   An amended application for leave to appeal was filed on 26 August 2016. The grounds are as follows:

   1. (1)

      Ground 1: The Court would grant leave to appeal as the subject matter of the appeal is a matter of general public importance calling for a determination of:

   2. (2)

      Ground 2: The Court of Criminal Appeal, under s 14 of the Court Suppression and Non-publication Orders Act, should allow the appeal and make the proposed orders sought because in all the circumstances now before the Court the orders are necessary to prevent prejudice to the proper administration of justice.

Legislation

1. [10]

   The question posed by the present case is whether the orders which are sought are “necessary to prevent prejudice to the proper administration of justice”. The relevant sections of the Court Suppression and Non-publication Orders Act are as follows:

2. [11]

   It was common ground that s 14 of the Court Suppression and Non-publication Orders Act gave jurisdiction to this Court to deal with the appeal on this question from the District Court: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [1]; [17] and [106].

3. [12]

   The media parties, who were represented by Mr ATS Dawson and Mr MJ Lewis on this application to oppose the making of the orders sought, accepted that Ibrahim established that this Court had power to make an order of the kind here in issue.

Relevant authority

1. [13]

   This Court, in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim, and more recently in Nationwide News Pty Limited v Qaumi [2016] NSWCCA 97, has dealt in a comprehensive way with the relevant principles concerning applications for “take down” orders.

2. [14]

   First, and fundamentally, in the present context such orders must be “necessary” to prevent prejudice to the proper administration of justice. There are a number of facets of this test of necessity which need to be addressed.

3. [15]

   The test of necessity will not readily be satisfied without proper consideration of whether a jury is likely to abide by the directions it will be given to decide a matter only by reference to the material called in evidence and without carrying out any investigations themselves: Ibrahim at [77] per Basten JA, with whom the Chief Justice and Whealy JA generally agreed.

4. [16]

   In addressing the question of necessity, full effect should be given to the received wisdom of the courts, having conducted jury trials over the years, that jurors act responsibly and in accordance with their oath, including complying with the directions of the trial judge: Qaumi at [90] per Bathurst CJ, Beazley P and Hoeben CJ at CL.

5. [17]

   An order will 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 websites overseas: Ibrahim at [76].

6. [18]

   As a matter of construction, that which is ineffective cannot be described as “necessary”. Enforcement against any party not resident in or operating from New South Wales must be practicable. The evidence must demonstrate that the orders would be effective: Ibrahim at [78].

7. [19]

   The proper administration of justice with respect to a trial to take place in the District Court at Sydney could not conceivably justify an order preventing residents of, for example, Perth, Kununurra or Darwin from having access to such material: Ibrahim at [73].

The decision of the trial judge

1. [20]

   The primary judge found that the articles about which complaint was made were not particularly recent. The risk that a juror would look for such an article, in defiance of a judicial direction, was remote.

2. [21]

   His Honour observed that the number of cases in the past where it was known that judicial directions were not followed by a jury were few and no such recent case was brought to his attention. Consideration of Professor Hunter’s Jury Study did not persuade the primary judge that the men and women ultimately selected to serve on the jury in AW’s trial would fail to follow the careful directions he proposed to give them. His Honour was not persuaded that the relief sought was “necessary” to prevent prejudice to the proper administration of justice.

3. [22]

   Finally, his Honour considered that the relief sought would be ineffective, as the essential information the subject of the “take down” orders would continue to be available on other websites which were not the subject of the proposed orders.

4. [23]

   Notwithstanding the findings set out above, his Honour made a pseudonym order about the applicant’s name and ordered that, until the conclusion of the accused’s first trial, there was to be no publication of the fact that the accused made the application for a “take down” order.

5. [24]

   In Qaumi this Court said at [27]-[28]:

6. [25]

   Although there was no challenge in this Court to the continuation of those orders, I was nonetheless independently satisfied that those orders were correctly made and that identification of the applicant as AW and an order prohibiting publication of the fact that AW had made the media non-publication/suppression application to Buscombe DCJ was necessary to prevent prejudice to the proper administration of justice and to ensure that AW obtained a fair trial.

7. [26]

   Before the primary judge the applicant narrowed the terms of the “take down” application and sought an order that the applicant’s name be removed from the various articles on the internet during the conduct of the trial. The reasons that the primary judge gave for dismissing the application were relatively brief and, relevantly, were as follows:

The “take down” orders now sought

1. [27]

   The order sought on the appeal is:

2. [28]

   In an apparent attempt to meet the criticisms of orders sought in Ibrahim (see [71]-[80]) and Qaumi (see [89]-[90]), the applicant limited the scope of the orders sought. A number of matters may be noticed about these proposed orders at the outset:

   1. (1)

      the proposed orders identify specific parties, comprising some traditional media proprietors, certain websites and some organisations that have posted webpages about the GoPro sexual assault;

   2. (2)

      the proposed orders relate only to the name of the accused AW;

   3. (3)

      the proposed orders are limited in geographic scope to New South Wales; and

   4. (4)

      the proposed orders are limited to the duration of the trial.

3. [29]

   A number of observations about the suggested limitations based on the evidence led before the Court can be made at the outset.

4. [30]

   First, as to the identity of the parties affected by the orders, those parties were selected because their articles were given highest priority in Google searches for the applicant’s name (alone and in combination with other search terms that an investigating juror might be expected to input). However, the evidence disclosed that there were a number of prominent Australian media organisations whose websites contained information identifying AW in relation to the GoPro sexual assault that were outside the terms of the orders sought. They included websites associated with the commercial television networks 9 and 7 and the government broadcaster SBS. In addition, internet searches of “AW+Penrith” revealed the information contained on websites associated with major international news organisations, the BBC and the Daily Mail.

5. [31]

   Secondly, while the evidence disclosed that most of the top “hits” in an internet search using Google were websites controlled by the major media parties the subject of the proposed orders, the evidence was silent about the effect of the Google search algorithm if AW’s name was removed from the articles the subject of the proposed orders. The evidence was silent about the likely order in which “hits” would appear in a Google search of AW after his name had been removed from some of the articles. I would not be prepared to infer, in the absence of evidence, that the Google search algorithm will operate in the same way in relation to content with and without AW’s name. There was no evidence about content that could be located using a search engine other than Google.

6. [32]

   Thirdly, the extent to which the proposed limitation in the orders to the removal of the name “AW” was practical was not the subject of evidence. It is not clear to me whether the practical consequence of making the orders sought would be effectively to require the removal of all of the articles in which AW’s name appeared or, alternatively, whether the online articles could be edited so as to remove AW’s name, in satisfaction of the order, without affecting the balance of the text. The position may be different between media proprietors, who I infer would retain control of the digital content on their proprietary websites and other parties who have, in effect, re-published material originally published by others.

7. [33]

   Fourthly, in the absence of evidence, I would not be prepared to infer that there is a mechanism available to the organisations the subject of the proposed orders to limit the publication of material on the internet to places outside New South Wales. No such evidence was led on this application. On the basis of the evidence that was led, I would infer that if the orders were made they would require that the articles be removed from the internet altogether.

Applicant’s submissions

1. [34]

   The applicant submitted that the “take down” orders were necessary to ensure that he received a fair trial. There was, it was submitted, a “real risk” that jurors would, in defiance of the directions of the trial judge, make their own inquiries during the trial and discover the mainstream media articles about the GoPro sexual assault matter and Facebook pages about that subject.

2. [35]

   The applicant placed emphasis upon the Jury Study, which was completed by way of a questionnaire that was distributed by Sherriff’s Officers after trials to 240 jurors in 20 criminal trials. Seventy eight jurors (33 per cent) provided responses to that questionnaire which were used to generate the statistics the applicant sought to rely on.

3. [36]

   The applicant emphasised the findings of the Jury Study, at pages 5, 6 and 27, that 12 jurors believed that jury research was “very acceptable” where a juror was frustrated with the adequacy of the evidence in a criminal trial. The survey revealed that two of those jurors had actually conducted research.

4. [37]

   The applicant accepted that “it is a starting point to assume that juries will follow directions”: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at 425 [31]; R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177 at [17]-[21]. The applicant, however, emphasised the views expressed by two very experienced trial judges that juries do not always follow such directions: R S Hulme J in R v Debs [2011] NSWSC 1248 and Price J in R v Perish [2011] NSWSC 1102. In Perish, Price J said at [54]-[55]:

Consideration

1. [38]

   Whilst the matters raised by the applicant are sufficiently important to warrant a grant of leave, the appeal should be dismissed.

2. [39]

   The five overlapping matters advanced on behalf of AW in ground 1 should each be rejected. While the first two items identified as particulars of ground 1 describe matters of principle, they are advanced at a level of generality that is unhelpful.

3. [40]

   The first question, whether the principle of open justice “is or could be” infringed by a non-publication or take down order “relating to matters not before the court”, is not capable of being answered in the abstract. It would be unwise for this Court to embark upon any explanation of principle, divorced from the facts of the case and the statutory question which is posed. As has been explained, the question posed by s 7 of the Court Suppression and Non-publication Orders Act is whether the order sought is necessary to prevent prejudice to the proper administration of justice. The answer to that question will only be determined in a particular case by the facts of that case.

4. [41]

   Equally, the submission that this Court should clearly describe “the interaction between open justice and other fundamental objectives of the administration of justice, such as ensuring a fair trial” in the abstract should be rejected. Such an explanation is potentially dangerous absent a close consideration of relevant facts and the particular question being posed by the statute.

5. [42]

   The third matter advanced as part of ground 1 is premised upon the risk of jury “investigation” as being a “relevant consideration” which the primary judge did not take into account. This ground should be rejected.

6. [43]

   First, whist it is true that Basten JA in Ibrahim at [77] explained that "the test of necessity will not readily be satisfied without proper consideration as to whether a jury is likely to abide by the directions", I doubt on its proper construction that the statute mandates the risk of jury investigation as a matter the Court is bound to take into account in addressing s 7 of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

7. [44]

   Secondly, the primary judge in this case did consider the risk of jury investigation in making his decision. A requirement to take into account a relevant consideration does not impose a requirement beyond giving that matter proper, genuine and realistic consideration: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at 174-176; Swift v SAS Trustee Corporation [2010] NSWCA 182.

8. [45]

   The primary judge here gave the risk of jury investigation proper, genuine and realistic consideration. His Honour concluded that the articles about which complaint was made were not particularly recent and that the risk that a juror would look for such an article, in defiance of a judicial direction, was remote. The primary judge was not persuaded that the men and women ultimately selected to serve on the jury in AW’s trial would fail to follow the careful directions he proposed to give them. No error has been shown in his Honour’s approach.

9. [46]

   The fourth matter advanced as part of ground 1 was the one most seriously pressed by counsel for AW before this Court. That ground was that the court below erred in considering that the Jury Study was “not a proper basis” for rebutting the presumption that jurors will follow directions, and thus failed to take into account a relevant consideration. That contention should be rejected.

10. [47]

    First, I do not accept that the Jury Study was a “relevant consideration” in the Peko-Wallsend sense. It was a piece of evidence. It may be accepted that it was an important piece of evidence. This does not elevate the Jury Study to the level of a mandatory relevant consideration.

11. [48]

    Secondly, and in any event, the primary judge plainly took the Jury Study into account and weighed it with other evidence. Even assuming the Jury Study was a “relevant consideration”, he was required to do no more than give it proper, genuine and realistic consideration. He did so.

12. [49]

    Thirdly, close attention to the Jury Study reveals that it does not support the contention that the making of the orders sought here is necessary to prevent prejudice to the proper administration of justice. The conclusion of the study, at 36, is important:

13. [50]

    The recommendations flowing from the Jury Study were to review and improve directions to juries about these matters: see recommendations 1-4 at pages 41-44 of the Jury Study. Accordingly, the terms of the Jury Study itself do not demonstrate that the proposed orders here were necessary to prevent prejudice to the proper administration of justice.

14. [51]

    The fifth matter advanced as part of ground 1 was that the court below erred in considering the delay of eight months determinative in the application, and thus took into account an irrelevant consideration. That contention should be rejected.

15. [52]

    First, the delay of eight months was not “determinative” in the application. If any particular matter was determinative it was his Honour’s finding that he was not persuaded that the presumption that juries will follow directions had been displaced by evidence: Gilbert at 425 [31]; Jamal at [17]-[21].

16. [53]

    Secondly, the delay was clearly not an “irrelevant consideration” which the primary judge was bound not to take into account in the Peko-Wallsend sense. Whether the material the subject of the proposed orders was of “recent origin” was a matter specifically adverted to by Basten JA in Ibrahim at [77] as relevant to the making of an order such as the present.

17. [54]

    The second ground of appeal should also be rejected. It has not been shown that the orders sought are necessary to prevent prejudice to the proper administration of justice. In particular, it has not been shown that;

    1. (1)

       the jury is likely to fail to abide by the directions it will be given to decide a matter only by reference to the material called in evidence and without carrying out any investigations themselves; or

    2. (2)

       the orders sought would not be futile.

18. [55]

    Adapting the remarks in Qaumi in this Court at [89]-[90] to the present case, I do not accept that the views expressed in Perish and Debs, or the conclusions reached by the Jury Study, provide sufficient foundation to conclude that the proposed orders are in this case necessary to prevent prejudice to the proper administration of justice. I do not accept that it has been shown that there is more than a remote risk that the jury empanelled in this case will fail to follow the trial judge’s directions.

19. [56]

    I am not persuaded that there was sufficient evidence here that a jury was likely to act other than responsibly and in accordance with their oath, including in complying with the directions of the trial judge. In saying that I do not mean in any way to discount the important work contained in the Jury Study.

20. [57]

    Further, I consider that it would be futile to make the orders. I have reached this conclusion notwithstanding that there was evidence that the removal of the items the subject of the proposed orders may have some effect in reducing the information available to a searcher on the internet. I say “may” because, for my part, I would not be prepared to conclude, in the absence of evidence, that the Google search algorithm (or other like search engine algorithms) would necessarily work in such a way that if, for example, the top 10 of 20 “hits” were removed from the internet, the articles originally ranked 11-20 would not then become “hits” 1-10 on a search conducted after the removal of the items the subject of the Court’s order.

21. [58]

    I am reinforced in my conclusion by a number of factors:

    1. (1)

       the evidence disclosed that even if the orders were made, articles available from websites outside the terms of the orders sought would be unaffected. Those websites include traditional media sites, such as Australian sites belonging to the Channel 9 and Channel 7 media networks and international sites such as the Daily Mail and the BBC. The evidence showed that a simple Google search of the terms “AW + Penrith” will lead to each of these sites – including details of the GoPro sexual assault and AW’s name;

    2. (2)

       whilst two Facebook pages, one identified as 'Fighters Against Child Abuse Australia' and one identified as 'No Sharia Law' are within the orders sought by the applicant, the new media websites which host those pages and presumably store their content are outside the terms of the orders sought. The evidence does not disclose whether, in the event the two Facebook pages named above were removed by those organisations, other users of Facebook could continue to access information devoted to the GoPro sexual assault allegations and AW’s role in those alleged events; and

    3. (3)

       the articles reporting upon the “Go Pro” sexual assault allegations are now one year old and will be four months older by the time the relevant matter comes to trial.

Non-publication of this judgment

1. [59]

   For the same reasons as I have given in relation to upholding the non-publication order made by the trial judge, an order under the Court Suppression and Non-publication Orders Act for non-publication of this judgment should be made.

   1. (1)

      Order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), that no publication be made of the evidence and submissions in the Court of Criminal Appeal on 23 September 2016 or this judgment until the conclusion of the trial of AW in relation to alleged offences of aggravated sexual assault or aggravated indecent assault, or until further order.

   2. (2)

      Order (1) above is to apply throughout the Commonwealth and is made on the basis of necessity to prevent prejudice to the proper administration of justice.

   3. (3)

      Grant leave to appeal.

   4. (4)

      Appeal dismissed.

Orders

1. [60]

   CAMPBELL J: I have had the very considerable advantage of reading the judgment of Payne JA in draft. I agree with the orders proposed and the reasons his Honour gives.

2. [61]

   I wish to say something about two matters in addition to what his Honour has said. I firmly agree that Professor Hunter’s Jury Study provides no reason to doubt the validity of the assumption, fundamental for our system of criminal justice, “that jurors properly perform their task, are true to their oaths and comply with [the] trial judge’s directions”: Jamal at [21]; Gilbert at 425 [31]. As Payne JA has pointed out at [49] above, Professor Hunter’s conclusions are supportive of, and indeed reinforce, the correctness of the assumption. Standard directions given to juries address the very matters suggested by the results of Professor Hunter’s research. In particular, explanations are given by trial judges to juries, inter alia, of the accusatorial and adversarial character of the trial process; that jurors are judges not investigators; and by way of admonition in the judge’s opening direction, and at the close of each day’s evidence before the jury separate, that it is entirely impermissible for jurors to make independent inquiries, including over the internet, about the case, the accused, the evidence being lead or the questions being asked by Counsel. The prohibitions in s 68C of the Jury Act 1977 (NSW), and the penalties involved are drawn to the jury’s attention both orally and, typically, in a written direction.

3. [62]

   With respect, the Jury Study provides no reason for supposing that there is any real risk of a juror flouting those directions and embarking on a frolic of his or her own. The rarity of cases of juror misconduct among the thousands of criminal trials conducted in New South Wales each year, let alone misconduct by making inquiries impermissibly out of court, justify the validity of the assumption, and the effectiveness of judicial directions bolstering it.

4. [63]

   I have no reason to doubt, and indeed I agree with, Payne JA’s conclusions of fact expressed above relating to futility. By the same score, however, I was impressed by the consideration that the entry of the applicant’s name is of itself insufficient to produce a “hit” which provides a link to information about the “GoPro” incident. I accept I may have a limited understanding of the workings of the internet, but it seems to me that the consideration that obtaining a link to this information depends upon the provision of additional relevant information beyond the applicant’s name, reduces the risk that any hypothetical, recalcitrant juror intent on breaking his or her oath or affirmation, flouting the directions of the trial judge, and prepared to run the risk of criminal prosecution, would happen upon the damaging, prejudicial material.

5. [64]

   WILSON J: I agree with Payne JA. I also agree with and endorse the observations of Campbell J.