R v Haile

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.

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.

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.

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.

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.

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:

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:

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:

The Court in that case reached its conclusions as follows:

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].

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.

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:

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.

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.

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.

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.

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.

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:

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:

Finally for present purposes, her Honour said this at [441]:

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:

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:

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.

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.

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:

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.

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.