R v Rogerson; R v McNamara (No 13)

Earlier today I was made aware of an article which was published in the “Sunday Telegraph" newspaper yesterday, Sunday 9 August 2015. At the commencement of the proceedings today I drew the attention of the Crown, and the attention of representatives of each of the accused, to the article. Before dealing with its contents it is appropriate for me to make some preliminary observations.

Firstly, in a criminal trial any application or issue which raises a question of law is an application or issue which is dealt with in the absence of the jury. Since April of this year I have been hearing a series of such applications in these proceedings.

Secondly, in doing so I have made it clear in open Court, on more than one occasion, that each of those applications is to be regarded as one made in the absence of the jury and that therefore there is to be no publication of the fact of any such application, the evidence adduced in respect of it, and the submissions made by the parties. I have made a specific suppression order in respect of each judgment I have delivered in respect of each application that I have determined.

Thirdly, shortly prior to the commencement of the trial on 27 July last month, the Court’s Media Manager forwarded an email to approximately one hundred media outlets. Having noted the (then) scheduled commencement of the trial on 27 July 2015, the email went on to state (inter alia) the following:

The email proceeded to observe that specific orders had been made suppressing the publication of the various judgements which I had delivered in relation to those applications which had been determined up until that time. It was pointed out that a similar order would be made in relation to each and every judgment arising out of any application made in the absence of the jury at any time in the future. It was also pointed out that once verdicts in the trial had been returned, and subject to hearing any submissions from the parties, it was anticipated that the suppression orders attaching to those judgments would be revoked. It was made clear that at that time, but not at any time beforehand, media outlets would be at liberty to publish the content of any of those judgements. It is noteworthy that the author of the article in question was one of the persons to whom the email from the Media Manager was distributed.

I pause to observe that thus far, the only suppression orders that I have made are those which attach to the judgments that I have delivered. However, for the reasons I have already stated, it has been made clear that, as is the case in any criminal trial, applications of the kind that I have been determining over the past several months are applications made in the absence of the jury. In that regard this trial is no different from any other criminal jury trial that is dealt with in this Court, or indeed in the District Court.

Against that background, the article to which I previously referred was published yesterday under the heading:

The author of the article is stated to be Brenden Hills. I do not propose to recite the entirety of the article. For present purposes it is sufficient for me to quote the opening four paragraphs which are in the following terms:

I make a number of observations in relation to those paragraphs in the article.

Firstly, the suggestion that issues are "mired in legal negotiations between the accused men and prosecutors" is, of itself, an inapposite description of the proceedings which are taking place. Applications are being made and I am determining them. There is no process of “negotiation” at all.

Secondly, the reference to "part of the background of one of the accused men" along with the reference to "lawyers for one of the accused [wanting] this information to be put to the jury" is a reference to applications I heard last week as to the admissibility of evidence of what is said to be McNamara’s bad character. That is an issue about which I will be delivering judgment tomorrow. It will be self-evident that such applications were made in the absence of the jury. It will be equally self-evident that they are caught not only by the observations that I have made in open Court on more than one occasion, but by the terms of the email that was sent to media outlets some weeks ago to which I previously referred.

Thirdly, and in circumstances where they were made in the absence of the jury, the fact that such applications were the subject of publication is bad enough. What is said in the fourth paragraph of the article concerning the issue of separate trials is simply wrong. I have already heard and determined an application, made by each of the accused, for a separate trial. The further reference to the issue of a separate trial was made on the last occasion by counsel for McNamara, who indicated nothing more than the fact that there was a possibility that McNamara’s earlier application for a separate trial would be re-agitated. To state that the issue of separate trials is "under discussion" is patently incorrect. Even if this was the case, publication of that fact would be prohibited.

Finally, the necessity to ensure that each of the accused in this matter has a fair trial is so obvious that it needs no comment. In my view, the contents of the article have the capacity to jeopardise that right. The contents are such as to come perilously close to constituting a contempt of Court.

In the circumstances, and so there can be no doubt about the position, I propose to make a further order which will suppress publication of the fact of:

That, along with the suppression order that I propose to continue to make in relation to any judgment which I deliver, will hopefully make it clear to those who apparently do not otherwise understand, that there is to be no publication of anything whatsoever which is dealt with in the absence of the jury. As I have said, prohibiting publication of applications made in the absence of the jury in a case such as this is unremarkable. It is the case with any trial. I am at a loss to comprehend why it is thought that the present trial should be any different. What is remarkable is that I should be required to make an order in the terms that I propose. There should be no need to do so. However in order to preserve the rights of both accused to a fair trial, and in order to ensure that there is no further publication of articles detailing proceedings in the absence of the jury, I am left with no other choice.

Once the order is made I will direct the court's Media Manager to disseminate it to all media outlets. I will also direct that once this judgment is available, it be forwarded directly to Mr Hills, in the hope that he will take greater care with the content of his articles about the trial from this point onwards. I will also direct that this judgment be forwarded to Mr Hills’ superiors, and to his legal counsel.